FZRM and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 355

FZRM and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 355 (10 April 2025)
Applicant/s:  FZRM
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/6427

Tribunal:General Member R. West
Place:Melbourne
Date:10 April 2025

Decision:The Tribunal affirms the decision of the delegate of the Respondent dated 14 August 2024 to refuse the Applicant a Protection (Class XA) (Subclass 866) visa under s 36(1C)(b) of the Migration Act 1958 (Cth).

...........................[sgd].............................................
General Member R. West
Catchwords
MIGRATION – refusal to grant a protection visa – appeal under AAT Act – transition provisions – hearing by ART – conviction for aggravated burglary and other offences – convicted by final judgement of a particularly serious crime – whether a danger to the Australian community – anti-social personality disorder – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Migration Act 1958 (Cth)
Cases
DMFR and Minister for Immigration, Citizenship and Multicultural Affairs [2024] ARTA 28
DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
R v Verdins [2007] VSCA 102
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) FCAFC 104
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434
Statement of Reasons

This matter concerns an application for review of a decision of a delegate of the Respondent to refuse to grant the Applicant a Protection visa (the Visa) under s 36 of the Migration Act 1958 (Cth) (the Act).
Background
The Applicant is a citizen of Malaysia. He first arrived in Australia on 3 October 2012 on a (subclass 976) Tourist visa and remained in Australia after his visa expired on 3 January 2013.
On 1 July 2022 the Applicant applied for a Protection (Class XA) (Subclass 866) visa[1] claiming that he feared persecution and punishment if returned to Malaysia by reason of his bisexuality (Protection Visa Application).[2]
[1] An earlier application for a protection visa for the Applicant dated 6 June 2022 was deemed invalid due to a failure to meet Schedule 1 criteria.
[2] T3 at pp.66-115.
On 14 August 2024 a delegate of the Respondent refused the Protection Visa Application. The delegate accepting the Applicant’s claims based on bisexuality, but considered that he was a person who ‘...having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community’, and did not meet the criteria in s 36(1C)(b) of the Act (Reviewable Decision).[3]
[3] T2 at pp.9-65.
On 29 August 2024 the Applicant applied to the Administrative Appeals Tribunal for review of the Reviewable Decision under Part IV of the Administrative Appeals Tribunal Act 1975 (Cth) (Application).[4]
[4] T1 at pp.1-8.
Hearing
The Administrative Review Tribunal (Tribunal) conducted a hearing of the Application on 25 and 26 March 2025 pursuant to Part 6(2) of Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
The Applicant was represented by Mr Greg Hughan of counsel. The Respondent was represented by Mr James Forsaith of counsel.
In conducting the review, the Tribunal has had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), sequentially numbered T1 to T59 and paginated from pages 1 to 1243 (T Documents);
(b)a bundle of documents provided under summons and produced to the Tribunal by the Respondent numbered RB1 to RB7 and paginated from pages 1 to 410 (RB Documents);
(c)a Statement of Facts, Issues, and Contentions produced by the Applicant (ASFIC);
(d)a Statement of Facts, Issues, and Contentions produced by the Respondent (RSFIC);
(e)a reply submission produced by the Applicant (Reply);
(f)the oral evidence of:
(i)the Applicant;
(ii)Mr Zacharia El Baba; and
(iii)Dr Gosia Wojnarowska, consultant psychiatrist; and
(g)documents tendered by the Applicant marked as exhibits and listed in the attached Schedule A.
Reviewable Decision
The Application seeks review of the decision of the delegate of the Respondent to refuse the Protection Visa Application on the grounds that the criterion in s 36(1C) of the Act was not satisfied because the Applicant had been convicted by a final judgment of a particularly serious crime and was not a person who was not a danger to the Australian community.
The Applicant’s Convictions
On 11 November 2014 the Applicant was convicted in the County Court of Victoria of one count of armed robbery, four counts of aggravated burglary, one count of causing serious injury intentionally, one count of burglary and three counts of theft,[5] and sentenced to an aggregate term of imprisonment of 9 years with a minimum non-parole period of 7 years.[6] The convictions and sentences were affirmed on appeal by the Supreme Court of Victoria on 19 May 2015.[7]
[5] RB3(b) at p.14, [1].
[6] Ibid at [50].
[7] T53 at pp.895-896.
On 5 February 2015 the Applicant was convicted in the Shepparton Magistrates’ Court of burglary and theft from a shop, and was sentenced to 6 months imprisonment to be served concurrently with sentences presently being served.[8]
[8] Ibid at p.896.
Legislative Framework
The criteria for a Protection Visa are set out in s 36 of the Act.
Subsection 36(1A), provides that an applicant must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
Relevantly, subsection (1C) provides:
A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Section 5M(a) relevantly provides that for the purposes of the application of the Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a ‘particularly serious crime’ included a reference to a crime that consists of the commission of ‘a serious Australian offence’.[9]
[9] Migration Act 1958 (Cth) s 5M(a).
Section 5 defines ‘serious Australian offence’ to mean an offence against a law in force in Australia, where:
(a)       the offence:
(i)        involves violence against a person; or
(ii)       is a serious drug offence; or
(iii)      involves serious damage to property; or
(iv)is an offence against section 197A or 197B (offences relating to immigration detention); and
(b)       the offence is punishable by:
(i)        imprisonment for life; or
(ii)       imprisonment for a fixed term of not less than 3 years; or
(iii)      imprisonment for a maximum term of not less than 3 years.
Issues for Determination
It is not in dispute that the Applicant has been convicted by a final judgment of a particularly serious crime.[10]
[10] ASFIC at [5]-[6].
The four counts of aggravated burglary and one count of causing serious injury intentionally each involved violence against a person. The maximum sentences for the various offences for which the Applicant was convicted on 13 November 2014 were spelled out by his Honour Justice Pilgrim in his sentencing remarks:
...the maximum gaol sentence for armed robbery is 25 years’ imprisonment, the maximum gaol sentence for aggravated burglary is also 25 years’ imprisonment, the maximum sentence for intentionally causing injury is 20 years imprisonment, the maximum sentence for burglary is ten years’ imprisonment and the maximum sentence for theft is ten years’ imprisonment.[11]
[11] RB3(b) at p.14 [1].
The issue for determination in this review is therefore whether the Tribunal is satisfied, on reasonable grounds, that the Applicant is not a person who is a danger to the Australian community.
Conduct is a danger to the Australian community if it is inimical to significant norms of behaviour even though there may be only one actual or potential victim.[12] A person poses a danger to the Australian community if he or she poses a danger to Australians.[13]
[12] DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550 (Rares J) (DMQ20) at [55].
[13] Ibid (Thomas and Snaden JJ) at [56].
In SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (SLGS) Jackson J endorsed the views of the majority in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550 (DMQ20) regarding the meaning of ‘danger’:
In my view, their Honours held ‘danger’, as used in s 36(1C)(b), to be a word of ordinary English which is to be applied to all the facts and circumstances of the case and which is not susceptible of more precise definition. It would be consistent with their Honours’ approach for the decision maker to consider whether the harm that will eventuate if the danger becomes a reality is non-trivial and whether it would be harm of a physical or psychological kind. It would also be consistent with that approach to consider whether the risk that the harm will eventuate goes beyond that which is contemplated in ordinary personal interactions. Both the plurality and Rares J endorsed a concept of danger that combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates.[14]
[14] (2023) FCAFC 104 (Thomas and Snaden JJ) (SLGS) at [82]-[85].
The risk must at least be real and not fanciful. The court in DMQ20[15] and SLGS specifically rejected an argument expressed in earlier cases that ‘danger’ necessarily imports something more than a ‘real risk’, preferring the view expressed by DP Tamberlin in WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434 (WKCG) that:
It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future.[16]
[15] See ibid (Thomas and Snaden JJ) from [108].
[16] (2009) 110 ALD 434 (DP Tamberlin) (WKCG) at [31].
In MHCZ and Minister for Home Affairs (Migration) the AAT commented:
In the present case, counsel for the respondent asked us to find against the applicant if we are satisfied that the risk to the Australian community presented by his release rose no higher than the possibility of some harm.
We are not comfortable with the notion that a person may be treated as a present danger to the community merely because one cannot discount the bare possibility that some harm may occur in the future.
In our view, a level of risk is unacceptable if the evidence before the Tribunal points to a present and serious risk, neither remote nor fanciful, of physical harm, or extreme emotional harm (in the sense explained above), to some member or members of the Australian community. The expression “neither remote nor fanciful” is intended to exclude the ordinary hazards of life; the reference to extreme emotional harm is intended to exclude matters of upset, distress or embarrassment, which do not properly fall within the area of relevant harm.[17]
[17] [2019] AATA 4259 (DP Rayment and SM Fairall) at [33]-[35].
The question for the Tribunal is whether the risk of the Applicant engaging in criminal behaviour which threatens physical and/or psychological harm to members of the Australian community is so low that the Tribunal can be satisfied that the Applicant is not a person who is a danger to the Australian community.
The Applicant
The Applicant provided extensive evidence in support of his application. He relied on six separate written statements, of which three (dated 1 July 2022, 22 July 2022 and 23 May 2023) were provided to the Department in support of his application,[18] and three (dated 3 February 2025, 5 March 2025 and 24 March 2025) were lodged with the Tribunal in these proceedings.[19] The Applicant also gave extensive oral evidence to the Tribunal.
[18] T3(d), T6(b) and T51(b) respectively.
[19] Exhibits A1, A2 and A3.
The Applicant presented in the witness box as alert, intelligent and respectful.[20] However, his responses to questions gave the impression that he was seeking an opportunity to say what he thought would advantage his case rather than giving factually correct answers. He exhibited selective memory, frequently claiming not to recall some detail but being quite specific in regard to others. He claimed not to be aware of some matters included in his statements and at one point even questioning the authorship of part of his statement. He sought to explain his poor recollection by claiming that he was neurodivergent and on the Autism spectrum. He conceded that he had not been diagnosed with either condition, and the evidence of the prison psychiatrist confirmed that when tested he did not meet the criteria for autism.[21]
[20] The Applicant indicated that he was suffering from a tooth ache but showed no obvious signs of distress.
[21] RB5 at p.396.
The Applicant gave inconsistent and contradictory evidence on significant matters, examples of which were:
(a)He described himself as an avid computer gamer in Malaysia and said that before he came to Australia he became an ‘outcast’ among his gaming friends because they discovered that he had viewed gay pornography on his computer.[22] In a 2015 assessment report the Applicant was recorded as having told an assessor that the discovery that he had viewed gay pornography led to his abandonment by gang members.[23] When pressed, the Applicant acknowledged in his oral evidence that it was gang members not gaming members who had excluded him because he had viewed gay pornography.
[22] T3(d) at [9]-[12].
[23] RB3(h) at p.325.
(b)In his statement of 1 July 2022 the Applicant stated that he travelled to Australia on a three-month visitor visa and remained here after it expired. He stated:
While I did not mean to overstay my visa, I was horrified at the thought of having to return to Malaysia. In Melbourne, I met a man who, like me, was also of Malay ethnicity. He convinced me that he could enable me to legally stay and work in Australia. Being young, impressionable and desperate at the time, I found that person to be persuasive. Now, however, I believe that the person was a con artist who deceived me. He took advantage of my situation by making me work for him in exchange for very little money. Not only that, he also prevented me from fully appreciating that I am committing a grave mistake by overstaying my visa.[24]
[24] T3(d) at [15].
(c)In response to a request by the Department to provide his account of the events leading up to his offending the Applicant stated:
My initial experience of being in Australia, when I arrived here in October 2012, was very positive. As I had expected before arriving here, I found Australia to be a diverse, multi-ethnic and tolerant country. I personally saw and experienced the kindness and goodness of people in the community.
… however, I gradually came to realise that, at some point, people began to take advantage of me. I felt that I was being tricked by others. I faced harassment and discrimination at work. It seemed to me that I was being treated unfairly by everyone. I felt extremely persecuted. I therefore changed my job and residential address several times in order to get rid of this constant feeling of persecution, a feeling from which I was unable to escape.[25]
[25] T6(b) at [8]-[9].
(d)In his oral evidence the Applicant gave a significantly different account. He said that while in Malaysia he had paid money to an ‘agent’ who arranged for people to come to Australia for work. He said that she brought a team broken into three groups to Australia in October 2012. The first group comprised the agent and ten or so people, the second group comprised the Applicant and two others and the third group was a single person. The Applicant said that when he arrived he was left in a backpacker accommodation in St Kilda and was not contacted by the agent. As his money was running out the Applicant began to look for work independently. He approached people at the train station and obtained the phone number of a Malaysian man named Zac. He travelled to Werribee to meet Zac who provided him with accommodation in a shed in his backyard and gave him a job as an off-sider assisting a truck driver to load and unload deliveries. He worked for Zac for 21 days until, under the guise of a family get-together, Zac drove the Applicant to Swan Hill, gave him $100 and left him at the railway station. The Applicant remained in Swan Hill for 5 days until contacted by the agent’s representative who took him to a farm in Swan Hill and he started work picking fruit as part of the agent’s first group. The Applicant said at this stage he realised that his visa was fraudulent and it was not a work visa but he had no choice but to ‘suck it up’. He remained working in Swan Hill for about two months and then moved to Mildura to work for a contractor named Sam picking oranges and other fruit because he was paid more. He said he met Sam through an associate of his aunty whom he called ‘uncle’. He then followed the seasonal work to Shepparton, working for Sam picking fruit and later in a fixed wage position pruning fruit trees. He said that he was let go by Sam after he fell out with other workers because they resented him working at a fast pace when they were in a fixed wage position. He claimed that Sam did not pay him money owed to him.
(e)The Applicant gave an inconsistent account of his involvement with gangs in Malaysia. Information obtained from the Applicant by psychologists in December 2015 was that:
...he became involved with people who had criminal histories in his late teens and early twenties. He described these people as his friends and said that they were part of a “gang” in Malaysia who would “solve other gang’s problems”. On further discussion, [the Applicant] alluded to being involved in criminal protection activities where he would attend at businesses and demand payment in exchange for not offending against them as part of an organised network. When asked if this work involved carrying weapons, [the Applicant] said that he sometimes carried a “samurai sword” and at other times carried a knife. When the author asked whether [the Applicant] had ever used these weapons he stated that they were a part of doing “business” and alluded to them being used to frighten people. [The Applicant] described a feeling of loyalty towards these people but also felt betrayed when they discovered that he viewed homosexual pornography and “abandoned” him.[26]
(f) The Applicant responded to this report in his statement of 5 March 2025:
After I left high school, a childhood friend introduced me to one of their friends, who was involved with a gang. Through these friends I met other people who were involved in the same gang. I was never a member of the gang but I did hang around with people who were. I was young and stupid and at the time I saw these people as friends. After years of being bullied, I felt validated and protected by them. I never had any desire to be officially part of the gang and I wasn’t involved in any of their gang activities. However, when I was in prison, I told people, including in the Assessment in 2015 and the Moderate Intensity Violence Intervention Program (MIVIP) group in 2020, that I was more involved in the gang than I actually was because I was trying to make myself sound tougher and more masculine. I felt that I needed to do that to protect myself in the hyper-masculine environment of prison. The reports say that I said I participated in ‘criminal protection activities’. The reports also say that I carried a samurai sword and a knife and used weapons as ‘a part of doing “business” and alluded to them being used to frighten people’. This is not the case. I never participated in any gang activities, including attending businesses and demanding payment, and I never carried a samurai sword or a knife.[27]
(h)The Applicant was asked about this statement in his oral evidence. He confirmed that he had made the statements to the counsellors as recorded. He was asked to explain why he had included the statement that he had been abandoned by the gang because he had viewed homosexual pornography if his purpose was to make himself appear tougher. He said that he was not concerned to expose that matter because the counsellors would not disclose it to other inmates. This prompted the question why he would give an exaggerated description of his involvement with gangs to the counsellors at all, if that information would not be disclosed to other inmates. His response was that he wanted to be consistent with what he had already told other inmates. The Applicant’s statement suggests that he made the disclosure to counsellors as a deliberate strategy to protect himself in prison by showing that he was tougher and more masculine. The Tribunal notes the comments of the assessor that the Applicant ‘was not forthcoming with information until asked specifically about antisocial associates, and even when challenged, he provided a very vague and evasive description of these activities’.[28]
(i)In both statements the Applicant admitted to being involved with gang activity in Malaysia before coming to Australia. In his statement of 22 July 2022 the Applicant sought to downplay his involvement. The Tribunal does not accept his claim that he exaggerated his involvement in what he said to counsellors or the reasons given for doing so. The reported statement from December 2015 was made in the context of a counselling session with a prison counsellor making it unlikely that the Applicant would need to try to make himself sound tougher and more masculine. In addition, the Applicant’s subsequent criminal conduct in Australia was in general terms not inconsistent with the behaviour he described in Malaysia. The Tribunal is satisfied that the Applicant was involved with gang activity in Malaysia and that he participated in the gang activity described by the Applicant in his own statements to prison counsellors.
(j)On 4 July 2022 the Applicant was interviewed by the prison psychiatrist Dr Spencer. She reported that the Applicant had stated that he disagreed with mental health services’ assessment that he had schizophrenia and borderline personality disorder. When asked about this in cross examination the Applicant confirmed the view he expressed to Dr Spencer and added that he had come to that view after doing his own extensive research online. Yet, on 11 July 2022, a few days after making the statement to Dr Spencer, the Applicant signed a statement in support of his application stating:
Having read the Court of Appeal judgment, I agree with assessment of Dr Walton, whose expert opinion has been quoted in the judgment. I note, in particular, that Dr Walton thought that I was suffering from paranoid schizophrenia at the time of my offending. Dr Walton thought also that my psychiatric condition was such that I was at or approaching a near miss mental impairment.[29]
[26] RB3(h) at p.325.
[27] Exhibit A2 at [28].
[28] RB3(h) at p.325.
[29] T11(c).

The Tribunal regards the inconsistency between the Applicant’s statements as indicating a willingness by the Applicant to ‘tailor’ his responses to suit his interests at any particular time.
The Applicant acknowledged having given misleading or false information in interviews with assessors. He described his approach to the assessment interviews in his oral evidence saying that he didn’t want to ‘overshare’ with the assessors and explaining that he told them ‘…what I feel like at the time. It’s overwhelming to tell the whole story’.
He admitted that he told a prison psychiatrist that he was not gay.[30] He falsely told Dr Wojnarowska that he had not been involved in any physical altercation since being released into the community on a Bridging (Removal Pending) (subclass 070) visa (BVR) and withheld from her an incident at his accommodation in Nicholson Street Fitzroy in which he had become involved in a physical confrontation with another resident. He claimed in his oral evidence that an admission he made to the Moderate Intensity Violence Intervention Program (MIVIP) assessor in 2020 that he carried a knife daily[31] was ‘taken out of context’.
[30] RB3(j) at p.348.
[31] RB3(h) at p.331.
The Applicant’s statements regarding his use of drugs lacked consistency. Dr Wojnarowska stated in her oral evidence that the Applicant had given inconsistent answers to her questions about drug use. In his statement of 22 July 2022 he said: ‘I can remember that I was introduced to marijuana after I moved to Cobram in or around April 2013’.[32] On 4 July 2022 prison psychiatrist Dr Spencer reported that the Applicant advised her that he first used cannabis at 18, used it rarely and was influenced by negative peers to have a puff or two occasionally.[33] In his statement of 3 February 2025 he said that at the time of his offending he was using marijuana most days of the week which made his situation worse.[34]
[32] T6(b) at [11].
[33] T51(d) at p.875.
[34] Exhibit A1 at [6].
Dr Wojnarowska described the Applicant as an ‘unreliable historian’.
Having observed the Applicant give his evidence and noting the inconsistences identified the Tribunal does not accept the Applicant as a reliable witness in assessing the evidence as to the risk of re-offending.
Assessment of Danger
The relevant considerations in deciding whether the Applicant is a ‘danger to the Australian community’ were identified in the oft-cited decision of DP Tamberlin in WKCG:
Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.[35]
Seriousness of the Applicant’s past offending
[35] (2009) 110 ALD 434 at [26].
In handing down sentence on 13 November 2014[36] Justice Pilgrim described the nature of the Applicant’s offending as follows:
[36] RB3(b) at pp.14-17 [3]-[13].
On Saturday 27 July 2013, between 7.45 and 8 o’clock, you have attended a residential property at XXX. At this time two adult females, Ms AAA and Ms BBB were at home watching television and they were preparing to go to bed shortly thereafter. Ms AAA states that she went downstairs for a shower when she noticed the lights were out for both upstairs and downstairs in her premises. She proceeded to check to make sure there was no break in or missing objects. She eventually entered her bedroom and turned the lights on when she noticed one of the pillow sheets was not folded as she had left it. She thought, “That's strange”.
It was then, she says, that she saw a man behind the door when he jumped out and they looked eye to eye. That man was you. Ms AAA states, “I noticed him holding a knife in his right hand and he pointed it at me, telling me to shut up. The knife had a blade that was about 8 cm long and pointed.” Ms AAA further states, “I started to scream to get my friend’s attention.” You apparently noticed the friend, that is Ms BBB, at the door of the bedroom. Ms BBB had the phone to her ear and you rushed towards her. Ms AAA says she saw you push Ms BBB into the bedroom. Ms AAA then rushed to help Ms BBB whilst you kept saying, "Give me the money." Ms AAA says she screamed at you, saying, “We didn’t have any money. We don’t have any money.” She then says you grabbed Ms BBB’s phone and rushed down the stairs with Ms AAA shouting at you to get out which you did, taking the Samsung mobile phone from Ms BBB.
The next count is one count of aggravated burglary and one count of intentionally causing serious injury to Mr 111. At approximately 9.25 on Friday 23 August 2013, you have entered YYY via an open garage access door. That doorway led into the household. The door was at the rear of the garage and was accessed only by entering a fenced backyard. The book of photographs that were produced by the prosecutor show those premises and the backyard. Mr 111 and his wife Mrs 111 and two other friends, NNN and MMM, were inside the house, watching television. They were within metres of where you entered that house. You proceeded into the master bedroom of the house and ransacked drawers and other personal belongings belonging to Mr and Mrs 111.
Ultimately, Mr and Mrs 111 found that cash, jewellery and credit cards were missing. They had been stolen by you. The family dog alerted the occupants. Upon investigating, Mr 111 was confronted by you in a corner of his bedroom, the master bedroom. Again, you produced a knife and this time you lunged at Mr 111 and the pair of you, that is you and Mr 111, commenced wrestling. Mr 111 punched you a number of times to the head and the area around there before he himself, Mr 111, was struck multiple times to the face and neck with the knife.
If I pause there for a moment. In the victim impact statement that Mr 111 has filed, you heard him read his victim impact statement. It refers to medical reports. It is my observation that those wounds inflicted by you on Mr 111 came within millimetres of being fatal. Just missed his neck. Not surprisingly, Mr 111 succumbed to his injuries and was unable to continue the struggle or to chase you out of the house. Mr 111 collapsed within the entry to his home, where he received aid from his wife and friends awaiting an ambulance. He was removed by that ambulance, transported to the Shepparton Hospital and then later the Alfred Hospital in Melbourne where he was treated for a combination of very serious injuries, including stab wounds and jaw fractures.
You heard him say he was in ICU, that is an intensive care unit. He was in an intensive care unit because he was dangerously ill. If I understand and it might not be absolutely correct but the knife came very close to the back of his neck, within his mouth. A little lower, it would have been perilously close to being a fatality.
Mr 111’s injuries included his jaw being fractured, his tongue being cut in half and the rear of his throat being pierced.
Counts 5 and 6, one of burglary and theft. Those two offences took place at ZZZ between a quarter past seven and a quarter past ten on Tuesday 3 September 2013. The owners of the premises is a lady and gentleman who I am going to refer to in a moment, had left their access door open and gone out. Again, similar to the YYY household, once inside the garage you could access that house and you did. Again, you ransacked that premises like you were doing at the YYY household. You stole from the main bedroom of that premises two necklaces, a Citizen watch, that is the brand, jewellery and $300 in cash.
Counts 7 and 8, you have attended at QQQ where you have entered the rear yard of that unit. You cut the flywire screen to Miss CCC’s bedroom window, climbed through the window and walked past her bed in which Miss CCC was sound asleep. Perhaps it is just as well she was sound asleep and stayed asleep. Again, a comment. Having gained entry to the premises, you have taken her handbag which contained her purse and credit cards. You also took her Australian passport and sunglasses, a Lenovo, laptop computer and assorted jewellery including a silver woman’s watch, gold earrings, white gold ring set with diamonds. They were all taken. As I said earlier, Miss CCC was asleep and was not alerted to your presence. She discovered the intrusion into her house and the theft of her property the following morning.
The last two counts in the presentment, again a count of aggravated burglary and theft. That occurred between midnight and 11.30 am on Tuesday 10 September of last year. You have attended at RRR where you have entered the rear yard of the premises. You have again cut a flywire screen and entered the kitchen. You had to wind out the window and climb through to gain entry, that is, through the window. The police officers indicate this entry point was small and a forensic examination showed that dust had been disturbed from the windowsill and latent fingerprints confirmed that entry had been via that window. Once inside these premises, you again proceeded to steal therein. Among other things, you stole a wireless internet device, a Commonwealth Bank credit card, Miss DDD’s driver’s licence and other forms of identification from her purse. Miss DDD, like the previous young lady, was sound asleep. OOO was asleep, so to was PPP. They must sleep well in Cobram. She was not alerted to your presence and like with Miss CCC, she discovered the losses and the fact that somebody had been in her house and nicked her goodies the following morning.
Justice Pilgrim described the Applicant’s offending as ‘...amongst the very worst I have encountered in my experience on the bench’.[37] His Honour noted in his sentencing remarks that the Applicant’s offending had ‘brought devastation’ on one family and that other victims no longer feel secure in their own homes. His Honour noted that another victim had stated that she has difficulty sleeping and is very anxious.[38] The effect on the victim of the intentionally causing injury offence was described by Justice Pilgrim in his remarks as follows:
He was in an intensive care unit because he was dangerously ill. If I understand and it might not be absolutely correct but the knife came very close to the back of his neck, within his mouth. A little lower, it would have been perilously close to being a fatality.
Mr 111’s injuries included his jaw being fractured, his tongue being cut in half and the rear of his throat being pierced.[39]
[37] RB3(b) at p.24 [43].
[38] Ibid at [44]-[45].
[39] Ibid at [8]-[9].
Justice Pilgrim noted in his sentencing remarks that the sentences for the relevant offences of aggravated burglary had been increased to 25 years and the Attorney-General had stated in Parliament that this was in response to disquiet in the community because of burglaries and home invasions.
The Applicant does not contend that the index offending would, if repeated, cause anything short of serious physical harm but submits that, notwithstanding the very serious nature of the offending, the Tribunal can be satisfied that the probability of repetition is sufficiently low to justify a finding that he is not a danger to the Australian community.[40]
[40] ASFIC at [9]-[10].
The Tribunal readily accepts that if the Applicant’s past offending conduct were repeated it would threaten serious physical and/or psychological harm to members of the Australian community.
While the Tribunal may consider the particularly serious crime of which the visa applicant has been convicted and the risk that he or she will offend in that way in the future, the risk of repetition of other past conduct may also be considered.[41] There is no necessary link between the conviction for a particularly serious crime referred to in s 36(1C) and the finding of danger to the Australian community. The decision-maker is not limited to considering the possibility that the applicant might reoffend in a similar manner.[42]
The nature of the prior criminal behaviour
[41] SLGS (Jackson J) at [84].
[42] DMQ20 (Rares J) at [56]; WKCG (DP Tamberlin) at [29].
The Applicant began offending only a few months after arriving in Australia. His offending was repeated. On 13 November 2014 he was convicted of seven offences over a six week period from July to September 2013. Justice Pilgrim described his offending in that period as ‘a one man crime wave’.[43] On 5 February 2015 he was convicted of two further similar offences.[44]
[43] RB3(b) at p.23 [35].
[44] T53 at p.896.
The offences were ‘aggravated’ because the Applicant was armed with a knife and he entered the victims homes when they were present. The Applicant’s use of a knife was pre-planned and the risk of injury to the victims was predictable. The Applicant was not dissuaded from offending by the obvious distress his initial offending caused for his victims or the serious injuries inflicted on a later victim. Justice Pilgrim noted:
…despite the horrendous encounter at Mr and Mrs 111’s house on 23 August. You know how horrendous it was, you do not need me to tell you. Ten days later, well within ten days, you commit the offences of burglary and theft at ZZZ and the following day, the day after, the aggravated burglary and theft on Jane … Then within a week, six days in fact, you are at it again and you commit another aggravated burglary at RRR.[45]
[45] RB3(b) at [34].
The offending is set against a background of the Applicant’s involvement in gang activity in Malaysia before arriving in Australia.
Considered in this context, the nature of the Applicant’s offending suggests that he has had a willingness to engage in criminal activity which involves a risk to the welfare of others and that he may not be discouraged by the prospect of inflicting harm on others.
Mitigating or aggravating circumstances at time of offending
The Applicant explained his circumstances at the time of his offending in his written statement of 3 February 2025 as:
I was going through a really difficult time when I committed the offences. I was not stable and wasn’t looking after myself properly. I was struggling with my mental health to the point of thinking about committing suicide. My visa had expired, and I was scared that I would be returning to Malaysia, where I would be persecuted because of my sexuality. I was using marijuana because I thought it was helping me cope with the uncertainty of my circumstances. I accepted a job as a fruit picker, but I was underpaid and I didn’t have enough money to survive. As I look back now I can see that I was mentally very unwell. At that time, I did not get the support I needed because I didn’t know that support was available, I was emotionally immature and didn’t know how to speak up and I felt a lot of shame about being mentally unwell. I felt that things were hopeless and couldn’t work out a way out of my difficulties.[46]
[46] Exhibit A1 at [4].
The Applicant describes his situation today as very different:
My mental health feels stable and manageable. I am still working on understanding my mental health and the way my mind works; this is an ongoing journey for me. But, despite the challenges of re-integrating into the community, I feel well. I am being proactive in trying to organise mental health support and find work. I have been clean from drugs for 12 years and know I will not use them again. I have gone through many stressful situations, including in prison and detention, but I am able to manage stressful situations very differently now. I have learned many strategies, as I’ve described in this and my previous statements, and I also know it’s important to reach out for help when you’re struggling.[47]
[47] Exhibit A1 at [25].
While the Applicant’s engagement with counselling and his abstinence from drugs are positive indicators, the Tribunal is mindful that the objective of the Applicant’s offending in 2013 was theft. His crimes were calculated to benefit himself financially. He was not actuated by an emotional response to a stressful situation. He did not have a defence of mental impairment available to him.[48] Dr Watson opined that his mental disorder played a central role, but this was principally by way of poor judgement in relation to the Applicant’s dealing with his state of financial necessity. The Applicant is currently unemployed and dependant on social security payments. He has acknowledged that he will find it difficult to obtain employment. He has been diagnosed with Cervical Radiculopathy (C5-7 Nerve Root Compression) – a pinched nerve in the neck – that causes pain from his neck down to his shoulder which will limit his job options further.[49] The evidence does not show that the financial issues that motivated his previous offending have substantially changed.
Remorse
[48] RB3(b) at [22].
[49] Exhibit A2 at [8].
The Applicant plead guilty to each of the offences for which he was convicted. In his various written statements and in his oral evidence he expressed his remorse. He stated it most recently in his statement of 3 February 2025 as follows:
Initially, I found it hard to express the remorse I felt for my actions. However, over time and because of my participation in counselling and programs, I began to see how my actions impacted the victims of my offending. I deeply regret the harm I caused to each of the victims of my offending. There is no excuse what I did. I understand how my actions would have impacted their lives, and I will feel that guilt for the rest of my life. For example, Mr Hyde, the man who I assaulted in his home, had to live through the pain and trauma of the actual event and then also live with the physical and emotional scars afterwards. The other people who were home when I broke into their houses would have been terrified and confused when they saw me in their homes. The person who I stole from when they weren’t home would have felt horrible that someone had been in their house without their permission. I am sure that my actions would have also had a ripple effect and impacted many others, not just those directly involved.[50]
[50] Exhibit A1 at [5].
In July 2022 a mental health nurse reported that during a screening interview the Applicant told her that:
…he had just spoken to his lawyer, expressed frustrations in regards to the prosecution providing mixed messages on the actual injuries to his victim, despite offence happening 9 years ago. ;States the reported injuries have changed from victim being stabbed in his shoulder, to his neck/artery and now reports he has been told his jaw was injured and tongue split open; states he just wants the straight facts so he can accept the situation as it is with hopes to move on with his life however this issues may impact his upcoming court proceedings in regards to his visa.[51]
[51] RB3(c) at p.219.
In his oral evidence to the Tribunal the Applicant stated that he had only done a quick read of the report on the victim’s injuries when it was provided in 2013 and didn’t recall the full extent until he read it in detention when he felt disgusted with himself. He disclosed that as part of his rehabilitation program in prison, the MIVIP, he had been required to write a mock letter of apology to his victims and that this helped him to appreciate the harm he had caused.
The Tribunal is satisfied that the Applicant regrets his offending and the consequences that have resulted for him and the harm that his actions have caused to his victims. However, the Tribunal is not satisfied that his remorse is a strong factor in deterring him from further offending.
Conduct in custody

The Applicant was arrested on 13 September 2013 and held on remand for 426 days until sentenced on 13 November 2014[52] to 9 years imprisonment with a minimum non-parole period of 7 years.[53] The applicant applied for parole on 26 September 2019, but the application was refused. The Applicant completed his sentence and was released into immigration detention on 2 July 2022. On 14 August 2024, the Applicant was released into the community on a BVR following the rejection of his application for a Protection visa.
[52] RB3(b) at [52].
[53] Records produced by Corrections Victoria show that he was subsequently sentenced in the Shepparton Magistrates’ Court to an additional 6 months imprisonment (to be served concurrently) in relation to additional charges of burglary and shopsteal.
Prison records indicate that the Applicant was subject to discipline for a number of incidents while in prison. They included concealing medication, throwing food at another prisoner, refusing to comply with an officer’s direction, smoking tobacco in a bathroom, being verbally abusive and physically threatening towards officers, physically assaulting an officer and attempting to prevent them from leaving his cell.[54] The Applicant provided a response to each of the specific incidents in his written statement of 5 March 2025[55] and submitted through his counsel that:
...in the context of the pressures of a decade in various forms of custody, his prison and immigration detention records disclose nothing of genuine relevance to the recurrence of that offending. There are some low-level acts of disobedience and minor altercations with other prisoners in which he was, for the most part, the victim. Nothing in the course of that decade gave rise to any further charges or convictions after his arrest in 2013.[56]
[54] Exhibit A2 at [29]-[46].
[55] Ibid at [29]-[47].
[56] ASFIC at [40].
Having reviewed the prison records and having regard to the Applicant’s evidence regarding those incidents the Tribunal accepts that they provide some indication of a continuing anti-social attitude by the Applicant, but viewed in the context of the challenging prison environment many of the incidents warrant little weight in assessing the risk of re-offending. However, in one incident on 16 March 2020 the Applicant admitted to being involved in a fight with his cellmate because he had pushed into line ahead of him. This incident was followed in 2021 by incidents in March and May 2021 and in January 2022 involving verbal of physical abuse of prison officers.
The Applicant’s application for parole was refused by the Adult Parole Board on 4 March 2022 on two grounds: first that the Applicant was liable for deportation and unable to meet the requirements of parole, but secondly on account of:
Your behaviour in the controlled environment of prison, which indicates that if released on parole into the community you would be unwilling or unable to comply with parole conditions designed to mitigate your risk.[57]
[57] RB7 at p.410.
There were then four separate incidents of physical violence recorded in IHMS Client Incident Records[58] involving the Applicant while in immigration detention during the period from July 2022 to August 2024. The Applicant responded to these incidents in his statement of 5 March 2025[59] and acknowledged that they each involved physical altercations with other detainees over what the Applicant acknowledged were ‘relatively small things’.[60]
Conduct in the Community
[58] RB(3)(f).
[59] Exhibit A2 at [47]-[50].
[60] Ibid at [51].
The Applicant has now lived in the community on a BVR for more than six months. During that time he admitted in his oral evidence that:
(a)He did not comply with mandatory daily reporting obligations for around 10 days due to a misunderstanding[61] and subsequently failed to meet weekly reporting obligations on 3 or 4 occasions; and
(b)He was involved in an incident in supported accommodation at Nicholson St Fitzroy on 30 October 2024 in which he was involved in a physical altercation with another resident. The Applicant explained that he shared a room with the other party. He said he was taking a nap at around 6:00pm when the other party began playing loud music on his stereo. He said he asked the other party twice to turn the music down but when he failed to do so he threatened to break the stereo. The other party then punched the Applicant and he responded by head butting the other party. The Applicant suffered a minor concussion and attended hospital for assessment.
[61] Exhibit A2 at [12].
The Applicant also provided a written statement dated 24 March 2025[62] regarding an incident on 13 March 2025 at his current accommodation. The statement was supported by a USB recording of selected footage from surveillance cameras in the Applicant’s room and in the house.[63] The Applicant submitted that the incident demonstrated that he was able to de-escalate a situation of potential violence in accordance with strategies learned during counselling.
[62] Exhibit A3.
[63] Exhibit A4.
The Applicant said that the incident commenced at around 6:18pm when an Airbnb guest in the house, Phillip, barged into the Applicant’s room and began searching the room. The video recording[64] showed the Applicant opening the door to his room and admitting Phillip who walked past him to look inside an open clothes cupboard. The video then cut out for some 20 seconds due to what the Applicant described as a glitch. Upon resumption, the video showed the Applicant reclining on his bed and operating his mobile phone. Phillip was not present.
[64] Utilising the Applicant’s own surveillance camera.
The Applicant said that later at about 7:40pm he went to the kitchen and saw Phillip and his girlfriend Noel. The Applicant said that Phillip apologised to him for entering his room but the Applicant said he tried to ignore him because he was upset and wanted to be left alone. He said that Phillip persisted in his apology. In his oral evidence the Applicant stated that he believed Phillip had entered his room to look for Noel whom Phillip suspected of having sexual relations with the Applicant. The video recording did not cover this aspect of the incident.
The Applicant then said that at about 8:45pm he returned to the kitchen believing that Phillip had left the house, but found Noel cutting up food in the kitchen. He said he asked Noel if she was okay or needed some help and told her that he knew of domestic violence organisations. He said he thought she may have been in a violent relationship with Phillip. This part of the incident was not covered by the video recording.
The video recording[65] then shows, from two separate angles, Phillip in an agitated state remonstrating with the Applicant in a threatening manner. Noel is shown stepping between the two and the Applicant retreating, eventually leaving the kitchen via some stairs.
[65] Using the house CCTV cameras.
The Applicant claimed in his statement that Phillip reached for a knife in the kitchen and that he later came outside the Applicant’s room and said something like ‘come out and fight’ but the Applicant stayed in his room and spoke to 000. Neither of these aspects of the alleged incident are captured on the video.
The Tribunal accepts that the video evidence confirms that the Applicant’s conduct in this incident was not to escalate matters and to retreat in the face of threats from Phillip. However, the video evidence does not provide a comprehensive account of events. It is clear that Phillip entered the Applicant’s room after the Applicant opened the door to him and looked inside a clothes cupboard. The Applicant says that Phillip later apologised but he tried to ignore it. Some time later the Applicant raised the issue of domestic violence with Noel (whom Phillip had suspected of having a sexual relationship with the Applicant) which seems to have triggered an angry and aggressive response from Phillip.
The Applicant’s counsel submits that it was proper and responsible for the Applicant to raise the issue of domestic violence with Noel if he was concerned for her welfare. The Tribunal readily accepts that such concern and offer of assistance are appropriate and responsible. However, in personal interactions context is very important. The Tribunal cannot know for sure on the evidence provided what was the true context in which the Applicant spoke and acted. However, it is noted that whatever the Applicant’s motives were it was his conduct that angered Phillip and resulted in a heated exchange which had the potential to escalate into violence. This is not to say that the Applicant was at fault in this particular incident, but this incident, the Nicholson St incident and earlier incidents in immigration detention do illustrate the potential for the Applicant to become involved in confrontational situations. Dr Wojnarowska opined that the Applicant’s risk of future violence ‘...is associated with the presence of antisocial and psychopathic traits, impulsivity and need for retaliation; therefore, it is likely that he will return to using aggression, including physical, as a means of conflict resolution’.[66]
[66] RB4 at [108].
It is of further concern that these matters have arisen so soon after the Applicant was released into the community and at a time when he is subject to supervision under the terms of his BVR and he has an application for a protection visa under active consideration.
The cumulative effect of the Applicant’s conduct over the period from March 2020 while in custody and since his release raises a concern that the Applicant still represents a risk of re-offending in a violent manner if released into the community.
Mental health
A prominent issue in the assessment of risk in this matter has been the Applicant’s mental health. The sentencing judge had regard to the report of Dr Lester Walton consultant psychiatrist in determining sentence.
Dr Walton examined the Applicant while he was on remand on 4 October 2013 and 5 September 2014 and prepared a report to the Court for the purpose of sentencing.[67] He noted that the Applicant was acutely psychotic at the time of his initial assessment but seemed much more at ease on the latter occasion with parallel reduction in auditory hallucinations and paranoid ideas. He concluded that the Applicant was of normal intelligence with no significant cognitive deficit. He diagnosed the Applicant as suffering from paranoid schizophrenia, which was then in substantial remission. He opined that the Applicant’s mental disorder played ‘a central role in his offending, principally by way of poor exercising of judgement in relation to his state of financial necessity’.[68]
[67] RB1.
[68] RB1 at p.5.
Justice Pilgrim accepted Dr Walton’s opinion that the Applicant’s mental health condition was a factor to be taken into account in sentencing in accordance with the Verdins principles.[69]
[69] R v Verdins [2007] VSCA 102.
The Applicant was assessed while in custody by Dr Jillian Spencer of IHMS on 4 July 2022 who reported:
...enthusiastic engagement, cooperative and polite. Speech of normal rate, volume and prosody. Mood: euthymic. Thought normal in tempo, no FTD. Spiritual over-valued ideas but no delusions identified. Some experiences of ‘energy’ that could be perceptual disturbances but sound more in keeping with his overvalued ideas as part of an abnormal personality. No suicidal thoughts. Imp: no mood, anxiety or psychotic symptoms currently. Seems to have Cluster A personality traits and his spiritual ideas may be in line with this. History of sexual assault in jail and, following this, had psychotic symptoms and seems to have been treated for schizophreniform disorder. Has been off medication for three years without relapse.[70]
[70] T51(d) at p.875.
The Applicant was seen by an IHMS counsellor between July 22–Sept 23 who assessed him as a low risk of self-harm and harm to others and noted ‘…Schizotypal personality and BPD traits (when anxious) and have noted but further investigation is needed (BPD provisional diagnosis). Continue to work on Anger management strategies’.[71]
[71] RB5 at p.395.
The Applicant was assessed while in prison by IHMS psychiatrist Sally Chow on 20 August 2022. She stated in her report that ‘…diagnostically unclear, no evidence of mood, anxiety or psychosis. not convincing of Autism Spectrum Disorder but I have given him some questionnairs and advised him of Dr Spencers diagnosis of Cluster A personality traits’.[72] In a further report of 2 September 2022 Dr Chow noted that the Applicant recorded a score of 24 on the Adult Autism quotient, with a score of over 29 being clinically significant for autism and concluded that the Applicant would benefit from further testing.[73]
[72] Ibid at p.394.
[73] RB5 at p.396.
The Applicant participated in 10 months/17 sessions of trauma focused counselling with Foundation House from 10 November 2022 to 11 September 2023.[74] The counsellor’s summary report stated:
[The Applicant] has engaged well with counselling. [The Applicant] struggles to discusses his experiences of trauma, in relation to his sexuality due to fear of persecution. He also continues to struggle with interpersonal relationships and dealing with emotional regulation. [The Applicant] would benefit from ongoing counselling support with IHMS counsellor to help explore interpersonal challenges and manage emotional dysregulation. [The Applicant] would benefit from further exploration of the diagnosis of autism spectrum disorder and attention deficit disorder so that appropriate support system could be put in place.[75]
[74] RB3(i).
[75] Ibid at p.345.
The Applicant was again assessed by Dr Chow on 15 September 2023 who recorded a diagnosis of Cluster A personality disorder and noted that his mental state was stable and that he feels supported by current supports. She noted nil risks.[76] He was again assessed by Dr Chow on 19 January 2024 who noted that the Applicant had reported four incidents of physical aggression against him by other detainees. She reported that his mental state was stable, but he was sensitive to interpersonal issues triggered by past history of racial discrimination.[77]
[76] Ibid at p.399.
[77] Ibid at p.402.
On 24 June 2022, ahead of his release from prison, a mental health screening was completed for the Applicant which indicated nil psychotic symptoms and assessed that he was a low risk of harm to self and to others.[78]
[78] Ibid at p.407.
The Applicant was assessed by Dr Gosia Wojnarowska, consultant psychiatrist, by videolink on 4 February 2025 at the request of the Respondent. Dr Wojnarowska took a detailed history from the Applicant and reviewed clinical records and the report of Dr Walton. She administered two tests, the Hare Psychopathy Check-List (PCL-R) to assess the extent to which the Applicant’s personality structure conforms to the clinical construct of psychopathy and the HCR-20 v3 test, a broad-band violence risk assessment instrument.
Dr Wojnarowska noted that on the PCL-R the Applicant ‘...scored positively on most items with his final score being 26. A score of 25 is required to meet the threshold for psychopathy. His score was elevated on both Factors: Factor 1 –Interpersonal/Affective and Factor 2 –Lifestyle/Antisocial. The presence of psychopathy is closely associated with criminal and antisocial behaviour’.[79] Dr Wojnarowska noted that:
Juvenile delinquency and criminal versatility were not scored as his history while living in Malaysia is not available. Both items are highly relevant in all risk assessments.[80]
[79] RB4 at [70].
[80] Ibid at [71].
Dr Wojnarowska acknowledged that it was difficult to assess the Applicant’s personality as the interview was conducted over video link and there was a paucity of reliable independent information about his interaction style. However, based on the PCL-R, her assessment that the Applicant was an unreliable historian, his offending history in Australia, his antisocial behaviour in prison and detention, and his history of gang affiliation while living in Malaysia she concluded:
In my opinion [the Applicant] does not suffer from a major mental illness. After a period of treatment and containment in a secure environment away from illicit substances and life stressors, his psychotic illness diagnosed as Schizophreniform Disorder has fully resolved.
[The Applicant] fulfills the criteria for Antisocial Personality Disorder (ASPD). He has a long history of antisocial behaviour dating back to his adolescence. He is impulsive, lacks regard for societal norms, breaks law, displays anger and tends to lie. There is a possibility that he also presents with some Cluster A traits, as evidenced by his difficulty forming close relationships. However, the latter are not of a concern in relation to his risk of reoffending and can be seen as a neutral factor. There is currently no evidence of illicit substance use disorder.[81]
[81] RB4 at [109]-[110].
Dr Wojnarowska concluded that the Applicant’s ‘...risk of future violence is in moderate range and is associated with the presence of antisocial and psychopathic traits, impulsivity and need for retaliation; therefore, it is likely that he will return to using aggression, including physical, as means of conflict resolution’.[82]
[82] Ibid at [108].
The Applicant asserts that the Tribunal should reject Dr Wojnarowska’s diagnosis that the Applicant has antisocial personality disorder (ASPD) in light of Justice Pilgrim’s carefully considered findings in the course of sentencing the Applicant that he suffers from schizophrenia,[83] citing DMFR and Minister for Immigration, Citizenship and Multicultural Affairs:
…The Tribunal is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence are necessarily based … It has long been held that weight to be given to any convictions which may be proved in subsequent civil proceedings is a matter for the administrative decision-maker. However, the Tribunal cannot accept the Applicant’s contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying his conviction or sentence.[84]
[83] ASFIC at [45]
[84] [2024] ARTA 28 at [25]; see also HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121.
The Tribunal accepts that it should treat the Applicant’s conviction and sentence as ‘strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted’.[85]
[85] Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at [43].
Justice Pilgrim expressly accepted that Dr Walton’s opinion meant the Applicant did not have a defence of mental impairment but also accepted that his disorder played a central role in the offending, principally by way of exercising poor judgement in relation to dealing with his state of financial necessity. His Honour relied on Dr Walton’s opinion that this reduced the Applicant’s moral culpability in applying the principles in Verdins to moderate his consideration of the principles of general and specific deterrence in determining sentence.
That the mental disorder was paranoid schizophrenia was an opinion expressed by Dr Walton at the time. The exact nature of the Applicant’s condition was not a factual matter determinative of guilt. The absence of a mental impairment defence meant the Applicant’s mental condition was not relevant to a finding of guilt and conviction. While Justice Pilgrim’s reasoning on sentencing was based on the opinion that the Applicant was suffering from paranoid schizophrenia, albeit in remission, the diagnosis was not in the nature of a finding of fact. It was an opinion that the Court chose to rely on in assessing sentence in the same way that the court might have regard in the sentencing process to a witness impact statement, statement of remorse or apology by the accused or a submission from the prosecution or defence.

For the purpose of assessing the risk of re-offending the Tribunal accepts the professional assessment of Dr Walton that at the time of his offending the Applicant’s mental disorder played a central role in the offending, principally by way of exercising poor judgement in relation to dealing with his state of financial necessity. However, the assessment of future risk requires the Tribunal to have regard to the evidence as it relates to the Applicant’s current mental state. In this respect it is appropriate to weigh the opinion expressed by Dr Walton in 2013 with subsequent professional assessments of the Applicant’s mental state, including the professional opinion of Dr Wojnarowska.
Dr Wojnarowska said in relation to the opinion of Dr Walton that:
I do not concur with Dr Walton’s opinion. [The Applicant] does not present with a major mental illness. If a diagnosis of Schizophrenia were correct, [the Applicant] would not be able to function without treatment with antipsychotic medications. On Mental State Examination [the Applicant] did not present with any symptoms which would suggest untreated mental illness. These could be blunted affect, thought processing difficulties, poverty of thought, delusions or hallucinations. It is likely that his illness at the time of his assessment by Dr Walton in 2013 was situational and time limited.[86]
[86] RB4 at p.385.
Dr Walton was not called to give evidence. In her oral evidence Dr Wojnarowska commented that Dr Walton’s diagnosis had relied entirely on the Applicant’s statements during two interviews, in one of which he was displaying irrational thoughts. Dr Wojnarowska commented that she was surprised that Dr Walton had not accessed other information and that she would never offer a diagnosis of a serious mental illness such as schizophrenia without doing so.
Dr Wojnarowska’s assessment that the Applicant does not currently suffer from an untreated mental illness but has an ASPD personality disorder is broadly consistent with the clinical observations of Dr Chow and Dr Spencer who noted the Applicant’s treatment for ‘schizophreniform disorder’,[87] a short-term psychotic disorder, and identified a similar condition of Cluster A personality traits. Dr Wojnarowska also observed that if the Applicant had schizophrenia he would not have been able to function without treatment with antipsychotic medication, which he did not take. Various assessments over the period of the Applicant’s incarceration have not identified psychotic symptoms consistent with Dr Walton’s initial diagnoses.
[87] T51(d) at p.900.
On the basis of this evidence, the Tribunal accepts Dr Wojnarowska’s professional opinion and finds that currently, and for the purpose of assessing future risk, the Applicant has ASPD personality traits, but is not suffering from a chronic mental illness.
Rehabilitation
The Applicant provided evidence of the positive steps he has taken to rehabilitate himself. In his statement of 3 February 2025 he stated:
While serving my prison sentence, I had the benefit of undertaking many programs that helped me to better understand myself and my offending, such as:
a.Moderate Intensity Violence Intervention Program, including modules: Life Pathways, Offence Processing, Prosocial thinking, Anger and Violence, Victim Awareness and Self-Management (completed 21 October 2020);
b.RUSH Program - Suicide and Self-Harm Prevention Initiative (4 July to 12 September 2019);
c.Talking Change Program – focused on behaviour change (7 August to 21 October 2020);
d. Healthy Relationships Program (completed 9 December 2020); and
e.Inside Out Prison Exchange Program – Comparative Criminal Justice System with RMIT University in May 2019.
While I was held in immigration detention, I had counselling with Foundation House from November 2022 until September 2023 and also did counselling through IHMS.
Through these programs and counselling I’ve learned some skills and techniques that help me navigate difficult situations.[88]
[88] Exhibit A1 at [7]-[9].
The Applicant’s records also show that he has completed the following courses at Bendigo TAFE: Certificate in General Education for Adults, Kitchen Operations, Access to Vocational Pathways, Work Education, Employment Pathways, Information, Digital Media and Technology and at Box Hill Institute in Occupational Health and Safety, First Aid, Horticulture, Traffic Control, Commercial cookery and Vocational Pathways. He also completed an RMIT undergraduate subject entitled ‘Comparative Criminal Justice Systems.[89]
[89] See RB4 at [32]-[33].
These concerted actions by the Applicant to address his mental health concerns and the practical necessities of living in the community are positive factors but they should not be seen as a closed issue.
A report prepared on the completion of the Healthy Relationships Program (HRP) on 5 January 2021[90] recommended that the Applicant undertake the Know the Score Program (to reduce the risk of alcohol and drug related harm) and the Smart Move Program (to develop participants’ self-regulatory capacity) and upon release into the community, the Maintaining Change program (to gain peer support to assist in the transition back into the community). The recommendations suggested that the Applicant would benefit from strategies to manage conflict and high-risk situations related to anti-social peer association, ways to engage with pro-social peers, practising assertive communication, utilising strategies to assist in regulating his emotions and rebuild relationships with his aunt, god parents, nieces and nephews.
[90] RB3(h).
The Applicant has not undertaken any rehabilitation since his release into the community in October 2024 but he indicated on 3 February 2025 that he was organising counselling support through Centre Against Sexual Assault (CASA) in relation to a sexual assault he claims to have endured as a teenager. He confirmed in his statement of 5 March 2025 that he is on the CASA waiting list and the waiting list for Foundation House,[91] but it may take three months for him to be allocated a counsellor.
[91] Exhibit A1 at [15]-[16]; Exhibit A2 at [3].
Dr Wojnarowska’s assessment of the prospect of effective rehabilitation from the effects of ASPD is not optimistic. She stated:
The prognosis for ASPD is generally considered poor with the condition often being life long and highly variable in terms of individual outcomes; while some symptoms may lessen with age, particularly after 40, most individuals with ASPD will continue to experience significant challenges in maintaining relationships, employment and avoiding criminal behaviour, especially if left untreated. However, as they age, approximately 30% improve with the most violent and dangerous features remitting.[92]
[92] RB4 at [111].
The assessment of Dr Wojnarowska is borne out by the experience of the Applicant.
The Applicant claimed in July 2022 that through his rehabilitation programs he had learned:
a.        how to handle emotions;
b.        how to not get carried away with emotions;
c.        the ability to relax when feeling stressed;
d.        appropriate techniques for resolving conflict;
e.        suitable means of interacting with other people;
f.         how to better express myself;
g.        how to manage myself in sensitive and emotionally charged situations;
h.        the importance of sharing personal experiences with trustworthy people;
i.         understand the impact on victims of crime;
j.         how to reduce the risk of recidivism;
k.        the significance of treating everyone with respect, compassion and empathy;
l.         how to seek help from appropriate sources;
m.       how to solve problems.[93]
[93] T6(b) at [20]-[21].
He said he had found the above skills to be very helpful and intended to put them into practice in his everyday life.
In May 2023 he stated that his counsellors had ‘…taught me how to agree to disagree, and how to harness healthy patterns of critical thinking. They have taught me about the benefits of taking a step back and thinking through difficult situations. The benefits I have obtained from these sessions are innumerable’.[94]
[94] TB51(b) at [2]-[5].
From November 2022 to September 2023 he had extensive counselling with Foundation House.[95]
[95] Exhibit A1 at [8].
Yet, in November 2023, December 2023 and May 2024 he was involved in confrontations with other detainees while in detention[96] and after his release was involved in a fight with a room-mate in the Nicholson St house in October 2024.
Protective factors – pro-social associates – community involvement
[96] Exhibit A2 at [48]-[50].
Since his release into the community on a BVR in August 2024 the Applicant has found stable accommodation in a shared house run by Mr El Baba where he assists the owner with some cleaning and setting up rooms for Airbnb short-term tenants.
He is receiving Centrelink benefits and claims to have contacted AMES, Life Without Barriers and Vacro for assistance in finding work. He says he has applied for jobs in telemarketing, administration, reception, customer-service and cleaning. He is awaiting the outcome of a few interviews.[97]
[97] Exhibit A1 at [17].
The Applicant says he attends Friday prayers at different mosques around Melbourne[98] and he has a letter of support dated January 2023 from the Islamic Council of Victoria indicating that he is eligible for the Muslim Connect program which focuses on reconnecting members of the community who have been incarcerated with support networks within the Victorian Muslim community. There is no evidence that the Applicant has pursued this option.
[98] Ibid at [21].
The evidence indicates that the Applicant has limited pro-social associates in the community. He says he has made contact with two community groups, Many Coloured Sky (an LGBTIQ+ support group) and a charity named Community Pantry where he has applied for a volunteer role but he has not received a response from either.[99]
[99] Exhibit A2 at [9]-[10].
He called evidence from his landlord and friend Mr El Baba who was introduced to him by his brother-in-law, a former prisoner, but admitted that he has known Mr El Baba for only 5 months. Otherwise, the Applicant gave no indication of any friends or family in the community. This is understandable given his limited contact with the community. He arrived in Australia in 2013 and for the first seven months lived in St Kilda, Werribee, Swan Hill, Mildura and Shepparton. He was arrested in September 2013 and spent over 10 years in prison or detention until his release in October 2024. Since his release he has lived in a motel in Ardeer, supported accommodation in Fitzroy and in his current shared house in Greenvale.
Dr Wojnarowska commented that the Applicant could be productive in a stable environment. He is intelligent and could secure employment if motivated. She also identified his fear of deportation as a protective factor in relation to future reoffending.
Notwithstanding the Applicant’s expressions of intention, he has been in the community on a BVR for over 7 months and while he has secured accommodation in a shared house he has not obtained paid employment, has not engaged with community groups other than Friday prayers, has not accessed counselling and, apart from Mr El Baba, he has not established a pro-social network.
He therefore remains a vulnerable member of the community.
Professional assessments of risk
The Applicant’s prospect of avoiding further offending if released into the community without supervision has received limited professional assessment.
Justice Pilgrim did not provide a clear assessment of the Applicant’s prospects for rehabilitation in his sentencing remarks. He stated:
To comment on your rehabilitation as discussed between me and your barrister, it is a hard observation to make because it is really unknown what is going to happen to you because of the prospect perhaps of being deported. But if you are to be rehabilitated, you are obviously to follow the principles of medication to assist you with your waxing and waning schizophrenia. I do hope that if you do go back to Malaysia, there is some opportunity for rehabilitation. I am not ignoring rehabilitation but it is a very difficult exercise to look into that crystal ball in your instance.[100]
[100] RB3(b) at [46].
Dr Walton’s report focussed on the appropriateness of taking the Applicant’s mental condition into account on sentencing in accordance with the Verdins principles. He did not express an opinion on the likelihood of the Applicant re-offending.
On completion of the MIVIP on 21 October 2020, for which the Applicant attended all 32 sessions, he was assessed by a clinician against the Violence Risk Scale (VRS), scoring him in the ‘moderate’ risk of violence relative to other male offenders.
The Applicant’s application for parole was refused by the Adult Parole Board on 4 March 2022 on two grounds. First that the Applicant was liable for deportation and unable to meet the requirements of parole, but secondly on account of:
Your behaviour in the controlled environment of prison, which indicates that if released on parole into the community you would be unwilling or unable to comply with parole conditions designed to mitigate your risk.[101]
[101] RB7 at p.410.
Dr Wojnarowska’s overall assessment in February 2025 was that the Applicant’s ‘...risk of future violence is in moderate range and is associated with the presence of antisocial and psychopathic traits, impulsivity and need for retaliation; therefore, it is likely that he will return to using aggression, including physical, as means of conflict resolution’.[102]
[102] RB4 at [108].
The Tribunal is not bound by the assessments of Dr Wojnarowska and other experienced professionals and is required to make its own assessment of the risk that the Applicant will be a danger to the Australian community. However, professional opinion warrants significant weight in the overall assessment.
Conclusion
Having considered the factors discussed above the Tribunal summarises the Applicant’s position as follows:
(a)The Applicant’s offending was very serious. It was repeated and involved the use of a weapon. It resulted in significant physical and psychological harm to members of the Australian community.
(b)The Applicant’s offending was significantly affected by his mental health condition at the time and it has now been identified that he suffers from an ASPD which exhibits ‘the presence of antisocial and psychopathic traits, impulsivity and need for retaliation making him likely to use aggression, including physical, as means of conflict resolution’.
(c)ASPD is a life-long condition which is not easy to address through counselling and while the Applicant has participated in counselling he has not avoided confrontations since undertaking the counselling. He has not undertaken counselling in the community since released seven months ago, although he has made an application and is awaiting an offer.
(d)The Applicant has demonstrated repeatedly over the last few years in prison, detention and in the community that he can become involved in confrontational situations in which violence and aggressive behaviour are manifest.
(e)The Applicant resorted to theft in the past when facing financial hardship and personal distress. He remains in a vulnerable position in the community. While he has secure accommodation at the moment he has no employment and is dependant on Centrelink payments. He has a chronic back condition which may affect his ability to secure work. He has limited pro-social contacts and support.
(f)The Applicant has expressed remorse for his actions and may be deterred from offending by the risk of deportation but he has demonstrated through his evidence and in his dealings with counsellors and health professionals including Dr Wojnarowska that he is prone to tailoring what he says to suit his circumstances and he is an unreliable witness in his own cause.
Taking these matters into account and giving due weight to the professional assessment of Dr Wojnarowska, the MIVIP assessor and the Adult Parole Board, the Tribunal is satisfied that the Applicant is at least a moderate risk of reoffending if released into the community without supervision. The evidence indicates that the Applicant represents a present and serious risk of inflicting physical or psychological harm on members of the Australian community within the reasonably foreseeable future. On this basis the Tribunal is not satisfied, on reasonable grounds, that the Applicant is not a danger to the Australian community and therefore the Applicant does not meet the criterion in s 36(1C) of the Act.
There is no scope for decision-makers to weigh the danger to the Australian community under s 36(1C)(b) against other considerations. If the requirements of s 36 are not met a Protection visa cannot be granted. The majority in SZOQQ v Minister for Immigration and Citizenship stated:
Under s 65(1) of the Migration Act, if satisfied of the required matters, the Minister is to grant a protection visa and, if not so satisfied, is to refuse to grant a protection visa. In other words, the Minister is vested with a fact-finding function but not a discretion. In the respondent’s words, “once the existence or absence of such obligations is determined to the satisfaction of the decision-maker, consequences follow under s 65. There is no room for any exercise of discretionary judgment which would involve weighing the interests of the visa applicant against other considerations”.[103]
[103] (2012) 200 FCR 174, [2012] FCAFC 40 (Jagot and Barker JJ) at [40]; see also Flick J at [27].
Accordingly, the correct and preferrable decision is to affirm the decision under review.
Decision
The Tribunal affirms the decision of the delegate of the Respondent dated 14 August 2024 to refuse the Applicant a Protection (Class XA) (Subclass 866) visa under s 36(1C)(b) of the Act.

I certify that the preceding 121 (one-hundred-and-twenty-one) paragraphs are a true copy of the reasons for the decision herein of General Member R. West

…………[sgd]…………………………….
Associate
Dated: 10 April 2025

Date(s) of hearing: 25 & 26 March 2025

Counsel for the Applicant: Mr Greg Hughan

Solicitors for the Applicant: Ms Andrea Main and Ms Drita Halimi, Victoria Legal Aid

Counsel for the Respondent: Mr James Forsaith

Solicitors for the Respondent: Ms Catherine Oppel, Australian Government Solicitor
Schedule A – Applicant’s Exhibits

1.       Exhibit A1

Applicant’s statement dated 3 February 2025

2.       Exhibit A2

Applicant’s statement dated 5 March 2025

3.       Exhibit A3

Applicant’s statement dated 24 March 2025

4.       Exhibit A4

Video footage of Applicant’s accommodation

5.       Exhibit A5

Statement of Mr El Baba dated 20 March 2025

Date(s) of hearing:	25 & 26 March 2025
Counsel for the Applicant:	Mr Greg Hughan
Solicitors for the Applicant:	Ms Andrea Main and Ms Drita Halimi, Victoria Legal Aid
Counsel for the Respondent:	Mr James Forsaith
Solicitors for the Respondent:	Ms Catherine Oppel, Australian Government Solicitor

1. Exhibit A1	Applicant’s statement dated 3 February 2025
2. Exhibit A2	Applicant’s statement dated 5 March 2025
3. Exhibit A3	Applicant’s statement dated 24 March 2025
4. Exhibit A4	Video footage of Applicant’s accommodation
5. Exhibit A5	Statement of Mr El Baba dated 20 March 2025