LKQD and Minister for Immigration and Multicultural Affairs (Migration)

[2025] ARTA 33

LKQD and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 33 (24 January 2025)

Applicant/s:  LKQD

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/8966

Tribunal:Senior Member K Raif

Place:Sydney

Date:24 January 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 23 January 2025 at 3:58pm

Catchwords

MIGRATION – refusal to grant Protection visa – Class XA Protection visa – Ministerial Direction No. 110 applied – failure to pass the character test – whether Tribunal should exercise discretion to refuse to grant Protection visa – decision under review affirmed

Legislation

Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Amendment (Removal and Other Measures) Act 2024 (Cth)

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 415 ALR 254; [2023] HCA 37
WKBF and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 4013
YBFZ v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] HCA 40

Secondary Materials

Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Statement of Reasons

INTRODUCTION

1. This is an application for review of a decision of the delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) made on 4 November 2024 to refuse to grant a Class XA Protection visa to the Applicant.

2. The Applicant is a national of South Sudan, born in January 1979. His background and personal circumstances prior to his entry to Australia are set out in various submissions and are not in dispute. The Applicant travelled to Australia in May 2004 as a holder of the Class XB Refugee visa. The Refugee visa was ultimately cancelled in February 2015. The Applicant sought revocation of that cancellation, but the decision was made not to revoke the cancellation of the visa.

3. In February 2017, the Applicant made an application for the Protection visa, which is the subject of the present review. In August 2017 a delegate of the Minister concluded that the Applicant was not eligible for the Protection visa under subsection 36(2C) of the Migration Act 1958 (Cth) (‘the Act’) as he was considered to be a danger to the Australian community. In August 2018, the Tribunal (differently constituted) affirmed the decision under review. The Applicant sought judicial review of the Tribunal’s decision and the matter was remitted for reconsideration. In October 2022 the Tribunal (differently constituted) set aside the decision and determined that the Applicant is not considered a danger to the Australian community.

4. The Applicant was convicted of multiple offences, described below. Relevantly, in July 2020, the Applicant was convicted of offences and sentenced to 12 months imprisonment.

5. In September 2023, the delegate issued the Applicant with the Notice of Intention to Consider Refusal (NOICR) of the visa under section 501 of the Act because the Applicant had been convicted of offences and it was determined that he may not pass the character test as defined in paragraph 501(6)(a). The Applicant was invited to make representations about the NOICR and did so in December 2023. In November 2024 the delegate decided to refuse to grant the protection visa to the Applicant. The delegate determined that the Applicant did not pass the character test and exercised the discretion to refuse to grant the visa. The Applicant seeks review of the delegate’s decision.

6. The issues before the Tribunal are:

   · whether the Applicant passes the character test as required by section 501 of the Act and, if not

   ·     whether the Tribunal should exercise its discretion to refuse to grant the Applicant the visa.

   LEGISLATIVE FRAMEWORK

7. The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:

   (6)For the purposes of this section, a person does not pass the character test if:

   (a)    the person has a substantial criminal record (as defined by subsection (7))…

8. Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.

9. Should the Applicant not satisfy the character test, the discretion to refuse the visa under subsection 501(1) of the Act is enlivened.

10. On 7 June 2024, Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) was signed, coming into effect on 21 June 2024. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.

11. Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principles set out at paragraph 5.2 of Direction 110 states that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.

12. At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian government. Further, at Paragraph 5.3(3) the Direction provides that:

    ‘Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.’

13. The primary considerations which are set out in clause 8 of Direction 110 are:

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

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

    (3)the strength, nature and duration of ties to Australia;

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

    (5)expectations of the Australian community.

14. The other considerations, which are not exhaustive, are set out of clause 9 of Direction 110:

    a)legal consequences of the decision;

    b)extent of impediments if removed;

    c)impact on Australian business interests.

15. Paragraph 7(2) of Direction 110 states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

16. The character test is defined in subsection 501(6) of the Act. As noted above, paragraph 501(6)(a) relevantly states that a person does not pass the character test if the person has a substantial criminal record.

17. The Applicant’s National Criminal History Check report, a copy of which has been provided to the Tribunal,[1] sets out the Applicant’s convictions as follows:

    [1] G-Documents, p 47- 51.

17/07/20	·     Cause harm to Cth public official ·     Common assault	12 months imprisonment Fine $500
27/11/14	·     Stealing ·     Unlawful wounding ·     unlawfully wounded in circumstances of aggravation	Fine $200 Imprisonment 18 months
30/11/13	Breach of police order, restraining order	$500
22/02/13	Possess a prohibited drug	$250
24/10/12	·     Wilfully and unlawfully destroy or damage property ·     Without lawful excuse trespass	Imprisonment 3 months
14/09/12	Being armed or pretending to be armed in a way that may cause fear	Imprisonment 2 months
22/06/12	Assault public officer	Imprisonment 2 months
14/05/12	·     Breach of community based order ·     Assault public officer ·     Person who breaches CRO or community order without reasonable excuse (multiple counts) ·     Breach of suspended imprisonment order (multiple counts) ·     Wilful and unlawfully destroy or damage property ·     Disorderly behaviour in a police station ·     Stealing ·     Possess prohibited drug ·     Disorderly behaviour in public ·     Steal motor vehicle	Imprisonment (various terms to be served concurrently) and fines
17/01/12	Breach of police order, restraining order	Fine $300
20/12/11	·     Assault public officer ·     Breach of bail undertaking ·     Criminal damage ·     Possess a prohibited drug (multiple counts) ·     Common assault ·     Breach of protective bail conditions	Suspended imprisonment orders
16/08/11	Disorderly behaviour	Find $400
18/02/11	Stealing	Fine $400
30/12/10	·     Disorderly behaviour in public ·     Fail to comply with request to give police personal details ·     Assault public officer ·     Breach of suspended sent order	Fines
16/11/10 06/07/10 10/05/10	Disorderly behaviour in public place	Fines
12/04/10	·     Disorderly behaviour in public ·     Brach of violence restraining orders	Fines
09/04/10	Brach of suspended sentence	Imprisonment
11/03/10	·     Disorderly behaviour in public ·     Indecent acts in public	Fines
16/02/10	Stealing	Fines
12/01/10	·     Disorderly behaviour in public ·     Obstructing public officers ·     Stealing
08/01/10	·     Breach of suspended imprisonment order ·     Fail to obey order given by an officer ·     Disorderly behaviour in public	Fines
22/12/09	Assault public officer	Suspended imprisonment order
07/09/09	Unlawful wounding
18/08/09	·     Breach of bail undertaking ·     Common assault	Fines
14/08/09	Disorderly behaviour in public place	Fine
24/06/09	·     Disorderly behaviour in public place ·     Obstructing police officers	Fines
29/05/09	Dangerous driving No authority to drive	Fines, disqualification
12/11/07	·     breach of ACRO ·     Aggravated assault	Fines
12/06/07	·     Disorderly behaviour in public place ·     Assault public officer (2 counts)	Fine Imprisonment 6 months
25/05/07	Breach of bail undertaking	Fine
24/05/07	Assault occasioning bodily harm	Fine
09/02/07	·     Suspect and others may be ordered to move on ·     Disorderly behaviour in a police station ·     Breach of bail undertaking	Fines
27/12/06	Breach of police order	Fine
23/11/06	·     Assault public officer ·     Breach of bail undertaking	Fines
15/11/06	Breach of CBO	Fine
28/04/06	Disorderly behaviour in public place	Fine
03/02/06	·     Breach of CBO ·     Disorderly behaviour in public place ·     Suspect may be ordered to move on	Fines
11/01/06	·     Possess smoking implement ·     Possess weapon with intent to cause fear ·     Fail to comply requirement to give personal  details ·     Breach of bail ·     Assault public officer ·     Refused breath test ·     Breach of conditional release order or a community order ·     No motor vehicle license	Fines
22/12/05 20/07/05	Disorderly behaviour in public	Fines
08/04/05	Disorderly conduct	Fine

1. Having regard to the conviction in July 2020, the Tribunal finds that the Applicant has been convicted of an offence and sentenced to a term of imprisonment of 12 months. The Applicant concedes that he does not pass the character test. The Tribunal finds that the Applicant has a substantial criminal record as defined in s. 501(7)(c) and that he does not pass the character test.

   CONSIDERATION OF DISCRETION

   Protection of the Australian Community

2. Paragraph 8.1 of Direction 110 provides in part as follows:

   8.1   Protection of the Australian community

   (1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.

   (2)Decision-makers should also give consideration to:

   a)the nature and seriousness of the non-citizen’s conduct to date; and

   b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

   The nature and seriousness of the Applicant’s conduct to date

3. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequently of the non-citizen’s offending and /or whether there is any trend of increasing seriousness.

4. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.

5. In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the available sentencing remarks. The Applicant has been convicted of a large number of offences and the remarks and facts outlined below deal with only some, but not all, of his offending.

6. The Tribunal has had regards to the remarks of Magistrate Randazzo made in April 2020, in relation to the bail application following the detention incident in 2020. The prosecution outlined the facts as follows. The Applicant accused a detainee services officer of stealing his tobacco. It is recorded that the Applicant walked towards the victim and struck the victim to the face with his clenched fist approximately eight times. A struggle ensued. The Applicant placed the victim in a headlock. As the victim walked away, the Applicant followed and pushed him to the ground, punched him to the head, wrestled and punched him again. The victim sustained bleeding and bruises to his face. His Honour referred to the Applicant’s ‘propensity for violence’ and real risk of reoffending in the detention centre.

7. Magistrate Hills-Wright outlined the factual circumstances of the other 2020 incidents in his comments made in July 2020. In relation to the one incident in March 2020, it is stated that the Applicant asked the victim for a packet of cigarettes and when refused, the Applicant hit the victim in the face and at the top of the nose and forehead. In relation to the other incident in April 2020, it is stated that the Applicant approached the victim and lifted the X-box off the TV cabinet. When the victim attempted to take his X-box, the Applicant punched the victim in the mouth a few times and then punched the victim in the head. The Applicant accepted these facts. The Magistrate referred to the Applicant’s offending as ‘serious offences’ involving assaults that were unprovoked and unjustified. His Honour noted that the Applicant had a criminal record, including a record of violence, and that it was ‘not out of character’ for him to assault. His Honour acknowledged the Applicant’s mental health diagnosis and accepted that the Applicant was unwell when the offending conduct took place. His Honour also referred to the reports indicating that the Applicant had been consistently non-compliant with oral medication.

8. The Tribunal has also had regard to the earlier offending. The police facts sheet indicates that in December 2013 the Applicant and his then partner Ms H had engaged in an argument, the Applicant threw a mug at the victim, connecting with her head. As the victim attempted to walk away, she was dragged toward the unit by the Applicant.

9. In relation to the unlawful wounding offence in December 2013, the police facts sheet states that the Applicant approached the victim in a shopping centre car park and without provocation, became verbally abusive towards the victim, struck the victim in the face, the Applicant then produced a knife which he swung towards the victim’s face. The knife connected with the victim’s shoulder.

10. In November 2014 Magistrate Mignacca-Randazzo referred to the Applicant’s offending in relation to his then partner, Ms H. His Honour noted that the Applicant threw a mug at the back of Ms H’s head, and she had suffered some lacerations needing treatment in a hospital.  With respect to the second offence, His Honour noted that the Applicant went to a shopping centre, came across the victim in a car park and struck the victim in the face with his fist, then stabbed the victim in the shoulder with a knife. His Honour referred to the offending being serious. His Honour noted that the Applicant had ‘amassed a significant criminal record’ showing that he had used violence in the past and had poor compliance with community style orders.

11. The statement of material facts in relation to the December 2013 offending (stealing) indicate that the Applicant approached the victim and asked for cigarettes, money and his phone. The Applicant punched the victim twice before being handed a phone, tobacco and some cash. The Applicant later returned the phone and tobacco. In relation to the common assault offence, it is stated that the Applicant followed the victim and hit the victim with a fly swat twice in the face.

12. With respect to the aggravated burglary offending in 2013, it is stated that the Applicant had entered the living area without invite, walked around the property and later left the premises, the police located the victim’s wallet upon the Applicant.

13. In October 2012 Magistrate Young referred to the Applicant’s ‘appalling’ record, noting that past jail terms have not had any impact on his behaviour, while describing his offending as not at the higher end of the scale.

14. In relation to the February 2012 offence of burglary with intent, the police facts sheet indicates that the Applicant attended a residence, removed several flyscreens from the premises and smashed to window to gain entry. He later left the premises, and no items were identified as being stolen. The Applicant then attended a business asking for treatment on his leg. As he was asked to leave premises, he smashed the glass door. On another occasion in February 2012 the Applicant had smashed the windows at a McDonald’s restaurant. On an occasion in January 2012 the Applicant attended a business demanding a refund and when asked to leave the premises, the Applicant threw a glass at a window, causing it to smash.

15. In relation to the assault offence in February 2012 it is reported that the Applicant and the victim had been consuming alcohol. The Applicant became aggressive, grabbed the victim by the back of his neck and kneed him to the chest and abdominal area. The Applicant threw a bottle at the windows, causing these to smash.

16. In May 2012 Magistrate Cicchini referred to the Applicant having ‘offended in very serious ways’ and states that the Applicant’s offending has been persistent and serious in nature.

17. In relation to the stealing offence in January 2012 the statement of material facts indicates that the Applicant took $10 from the victim. In May, August and December 2011, the Applicant was searched with drugs found in his possession. In December 2011, the Applicant is reported to have stolen a motor vehicle.

18. In April 2010, Goetze DCJ noted that the Applicant’s return to custody twice showed inability or disrespect in living a law-abiding lifestyle. His Honour referred to the Applicant’s continued excessive use of alcohol as contributing to his offending behaviour, and his lack of insight and victim empathy.

1. In September 2009 Justice Kennedy dealt with the offence of unlawful wounding, to which the Applicant pleaded guilty. The record suggests that the Applicant was involved in an argument with another person had hit that person on the back with a piece of wood, then followed the victim who attempted to run away and struck him in the head with the piece of wood and then continued to forcibly strike the victim. The Applicant then stood over the victim and drove a piece of picket into the victim’s face two or three times. His Honour expressed concern about releasing the Applicant into the community, given his violent offending.

2. Statements of Material Facts show that on a number of occasions the Applicant breached the police orders prohibiting him from approaching or communicating with his then de facto partner, Ms H.

3. The Applicant also engaged in multiple offences which involved spitting upon others In December 2009. Magistrate Heath referred to spitting being regarded as a very serious assault and the kind of assault that the courts take seriously. In June 2007, Magistrate Malley also referred to the offence of spitting on a police officer as being serious, noting that the Applicant’s anti-social behaviour and his response in the past to warnings had ‘come on deaf ears’.

4. The Statement of Material Facts indicates, in relation to the October 2005 offending, that the Applicant had consumed alcohol, was involved in an argument, and slapped another person to the head, then continued to hit the victim to the head area. In relation to the January 2005 offending, the Statement of Material Facts records that the Applicant and another person were involved in an argument over money and a fight ensured. It is reported that during the fight the Applicant had removed a large carving knife from his sock and stabbed the victim in the shoulder.

5. On a number of occasions, the Applicant had been convicted of taking, or attempting to take, goods from supermarkets and liquor stores without paying. The Applicant had been convicted of a series of other offences such as obstructing public officers, disorderly behaviour in public places or police stations, breaches of bail undertakings, some driving offences and others. 

6. Records before the Tribunal indicate that the Applicant had been involved in numerous incidents while in immigration detention. Some of these were minor, others involved damage to property and others involved assaults or physical harm towards others. Most significant are the Applicant’s most recent convictions which arose due to his conduct while in immigration detention. The records show that the Applicant had punched an officer with a closed fist multiple times to the head and face area. Paragraph 8.1.1(b) provides that crimes committed while in immigration detention are considered to be serious.

7. The Applicant submits that many of his offences fell at the lower end of objective seriousness and others must be seen as being at the lower end of seriousness by reference to the penalty imposed. However, the Applicant concedes that he had been convicted of a number of serious offences, including violent offending, family violence and offences while in immigration detention.

8. The Tribunal acknowledges that many of the offences described above were not of a serious nature. However, the Tribunal also notes that some of the Applicant’s offences were of a violent nature. Some of the violence was entirely unprovoked and against individuals who were not known to the Applicant. There was other offending that would have caused the victims to be fearful or apprehensive about their safety. The offences that took place in the detention centre are considered to be serious. The Tribunal finds the Applicant’s offending to have been very serious.

   The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct

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

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

    a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i.information and evidence on the risk of the non-citizen re-offending; and

    ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and

11. Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in the offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.

12. As noted above, the Applicant had committed multiple offences, including offences involving violence towards others and domestic violence offences. There had been an escalation of his conduct, with earlier offences being fairly minor and escalating to assaults or aggravated assaults and property damage. The Tribunal finds that, should the Applicant engage in further criminal or other serious conduct, the nature of harm to others could be significant.

13. The Tribunal has considered the likelihood of the Applicant engaging in further criminal or other serious conduct.

14. The Applicant has been diagnosed with paranoid schizophrenia and drug induced psychosis and he is reported to have displayed symptoms of PTSD. Most recently, Dr Park’s report refers to drug induced psychosis due to suspected methamphetamine use. There are before the Tribunal a number of medical reports, IHMS records, copies of the CTOs, STARTTS reports, evidence of treatment and other medical records. The Applicant was the subject of a NSW guardianship order with Public Guardian appointed as his guardian and he was also the subject of a Community Treatment Order. The Tribunal has been provided with copies of these orders. The Applicant submits in his recent declaration that while the CTO has been suspended during his hospital admission, it is expected it would be renewed upon discharge from hospital. The Tribunal is mindful that both the NCAT Guardianship order and the NSW CTO only operate in NSW and the Applicant is presently in Western Australia. The Tribunal acknowledges a letter prepared by Mr Win, on behalf of the Office of the Public Guardian, dated 16 January 2025 indicating that proceedings have commenced in WA Civil and Administrative Tribunal for a guardianship order to be issued in that state and Mr Win’s oral evidence is that an application has been made for a new Guardianship Order in WA and the application is likely to be heard before March 2025.

15. The Applicant states that he is remorseful for his past offending and has expressed remorse in his past dealings with the court and with authorities. He states that he was not well when he committed the offences, and he submits that the offending does not reflect who he is. With respect to the most recent offending, the Applicant submits that he was held in ‘prison-like’ restrictive detention which affected his mental health. He made a statement in February 2017 explaining his past circumstances and reasons why he cannot live in his home country. In oral evidence the Applicant also expressed remorse and stated that he is now mature enough to behave differently and, if granted the visa, will not behave in the way he did in the past. In his response to the NOIR the Applicant also states that his 2020 offending was at a time when he was held in restrictive detention which had exacerbated his condition.

16. In his statement dated 17 December 2024, the Applicant states that he has been in hospital for about a month and is ready for discharge. He has support which will end soon, and he is looking for accommodation and receives support from Centrelink, which is not sufficient. The Applicant refers to the support he has received from others. He states that he wants to move to WA to be with his son and be close to the community. The Applicant states that he needs support from NDIS, help of a guardian and wants to get another CTO which encourages him to take his medication. The Applicant states that he feels depressed as he is not with his family, and he sometimes uses drugs, but he does not need drugs if he is with his son and if he has other supports. The Applicant states that he would find it difficult to live in the community on a bridging visa as he would not be able to support his son financially, which is important to him, and he feels his life is not stable.

17. The Applicant argues that it is necessary for the Tribunal to consider the likelihood of reoffending if he was given access to NDIS and appropriate supports, stating that it would offer better protection for the community if he remained a permanent resident because access to NDIS would decrease, or remove, the risk of him reoffending. The Respondent argues, by reference to the Tribunal’s decision in DVRL v Minister for Immigration 2024/7506 that it is not necessary for the Tribunal to determine what the Applicant needs to prevent him from reoffending. The Respondent refers to authorities in WKBF and Minister for Immigration, Citizenship and Multicultural Affairs,[2] and DFML v MIMA 2024/8449. The Applicant submits that this approach is not correct in the present case, for a number of reasons set out in the Applicant’s written submissions.

    [2] [2023] AATA 4013.

18. The Applicant submits that he will be able to remain in the community lawfully, either as a holder of a BVR or as a holder of a permanent visa, and it is necessary to consider whether granting the visa will better protect the community from harm, as he would have better access to appropriate treatment through NDIS. The Respondent submits, essentially, that it is not open to the Tribunal to engage in speculation as to what would reduce the risk of reoffending. The Respondent relies on a number of authorities, as well as the express wording of Direction 110 which deals with present and not speculative assessment of the future.

19. In his submission to the Tribunal the Applicant acknowledges that there had been previous non-compliance with prescribed medication, which had been linked to relapse and hospital readmission. The Applicant states that he relied on substance abuse as a coping mechanism but will not need to do so in the future if he is able to live with his son. The Tribunal does not consider that evidence persuasive. The persistent and frequent offending suggests that the Applicant had in the past found it difficult to disengage from his criminal behaviour, whether due to the substance abuse, his mental illness, non-compliance with medication or for other reasons.

20. The Applicant refers to the findings of the Tribunal made in October 2022 that he was not a danger to the community. The Tribunal has had regard to the Tribunal’s decision. At the time, Deputy President Cowdroy and Member Professor Ben-Tovim accepted that the Applicant was mentally unwell and subject to a Guardianship order and a Community Treatment Order (CTO). The earlier Tribunal had considered a number of statements, including medical evidence which indicated that the Applicant had been diagnosed with paranoid schizophrenia and had auditory hallucinations, persecutory delusions, surveillance delusions and thought passivity. The earlier Tribunal referred to a report by Jonathan Laugharne, psychiatrist, who noted the diagnosis of paranoid schizophrenia and the opinion of other psychiatrists that the Applicant’s condition would be best managed in the community and that detention could worsen his mental state and response to treatment. The earlier Tribunal noted that Dr Laugharne expressed the view that the Applicant’s mental state would improve as a result of being free from detention. The earlier Tribunal referred to a report by Dr Aiello who recommended ongoing counselling and noted the Applicant’s motivation to engage in treatment to manage his health concerns impacting his behaviour. The earlier Tribunal has had regard to a number of other reports and assessments. The earlier Tribunal had formed the view that the Applicant’s detention, and the circumstances of that detention had contributed to his offending in 2020, noting that he was not receiving adequate treatment while in detention (his CTO having been suspended). (There is before the Tribunal a copy of a report of Inspections of Australia’s immigration detention facilities). The Tribunal noted that a range of treatment and management options would be available to the Applicant if he was to live in the community, and be supported through the appointment of a Guardian, CTO and access to NDIS, mitigating the risk of violent behaviour. The earlier Tribunal concluded that the Applicant does not constitute a danger to the Australian community.

21. The Tribunal acknowledges that determination. However, that determination is of limited assistance to the Applicant in the present proceedings, in the Tribunal’s view, as the earlier Tribunal considered a very different question to the one that is posed before the present Tribunal. In the present case, protection of the community (which may encompass a consideration of whether the Applicant is a danger to the community) is only one of the factors that the Tribunal must consider. It is not the sole factor, nor a determinative factor. The present Tribunal must consider the factors set out in Direction 110 which the earlier Tribunal was not required to consider and had no regard to. As such, the Tribunal places very limited weight on the findings of the Tribunal made in October 2022.

22. The present Tribunal has also considered the report by Dr Laugharne dated 5 July 2021. Dr Laugharne had expressed a view that the Applicant would require a CTO if in the community and would need to continue on depot antipsychotic medication, as well as appropriate accommodation, a case worker and a mental health nurse, and access to a community psychiatrist, stating that a combination of a CTO and an actively involved multidisciplinary team would be crucial to monitor the Applicant’s compliance with treatment and manage the risks posed by his condition. Dr Laugharne noted that there was current evidence of psychotic delusions, suggesting the Applicant’s medication and / or dosing may not yet be optimised and that the current treatment is not resulting in full remission. Dr Laugharne expressed the view that ongoing detention may be a negative factor in the Applicant’s overall mental health. Dr Laugharne expressed the view that if the Applicant is well managed in the community, his mental health would improve overall as a result of being free from restrictive detention.

23. The Tribunal also has had regard to Dr Laugharne’s assessment dated 30 October 2017. Dr Laugharne acknowledged that the Applicant has not always been compliant with prescribed treatment while in detention but stated that it was often secondary to his frustration at his indefinite detention. Dr Laugharne refers to the Applicant’s relationship with his son as a significant factor and refers to stable accommodation and relationship with the son as protective factors. This is also consistent with the assessment by Mr Nemorinc.

24. The Tribunal has considered the report prepared by Yvette Aiello in February 2021. Ms Aiello outlines the Applicant’s background and psychiatric history and states that the Applicant acknowledged consuming alcohol in the past and felt this was a significant contributing factor in his history of assaults. Ms Aiello reports that the Applicant was not symptomatic for depression and anxiety. The Tribunal has been provided with a summary of psychological treatment by Shaun Nemorinc.

25. The Tribunal has had regard to the occupational therapy functional capacity report prepared by Ms Nina Karla Maravillas in December 2024. The report refers to the Applicant’s background and provides a functional assessment indicating that on the basis of a WHODAS assessment, the Applicant scored 57.67 placing him in the 95 percentile. It indicates that the Applicant presents with reduced cognitive abilities due to his disability, impacting on his ability to perform ADLs independently. The report also refers to an ABAS assessment showing the Applicant scored poorly compared to the general population. There is also before the Tribunal a letter from the social worker Ms Hobson supporting the Applicant’s eligibility for NDIS. While there has been some indication from the Respondent that the Applicant’s eligibility for NDIS is speculative, the Tribunal is prepared to accept, for the purpose of this review, that if a holder of a permanent visa, the Applicant may be eligible for NDIS.

26. In oral evidence Ms Maravillas confirmed the WHODAS score attributed to the Applicant and outlined the effects of that level of disability. Ms Maravillas referred to the ABAS assessment and explained the meaning of the results achieved. Ms Maravillas has expressed the view that support with medication management would assist the Applicant with taking his medication and enable the service providers to flag any concerns. Ms Maravillas states that the Applicant’s symptoms are more likely to be managed with medication, avoiding further hospital admission. Ms Maravillas also confirmed her written evidence that with the appropriate level of support, the Applicant’s behaviours of concern, as well as the hospital admissions, are likely to reduce. The Tribunal acknowledges that evidence, although the Tribunal is also mindful of Ms Maravillas’ earlier evidence that she rarely follows up with patients after completing her assessments and may not be aware of the effects of supports upon the clients’ well-being. Ms Maravillas also told the Tribunal that she is not aware of what options would be available to health professionals to enforce compliance with the treatment regime if the Applicant was to disengage with treatment or medication. As such, the Tribunal gives Ms Maravillas’ evidence about future consequences of treatment and supports limited weight.

27. Ms Maravillas has expressed the view that appropriate support will not be available to the Applicant if he was not an NDIS participant. However, Ms Maravillas confirmed that she is not confident in that evidence as she is not fully familiar with services available outside of NDIS. In that respect, the Tribunal finds Ms Maravillas’ opinion about the availability of support outside of NDIS unhelpful. The Tribunal is also of the view that the issue is not whether the Applicant will receive the full range of services recommended by Ms Maravillas through NDIS, but rather, adequate services to effectively manage his condition.

28. As noted elsewhere, the nature of the Applicant’s disability, and his need for support and ongoing treatment, are not in dispute. The Tribunal accepts that evidence and accepts that the Applicant requires extensive support. What needs to be considered, however, is the significance of that evidence and to what extent it establishes that the Applicant’s offending behaviour would decrease if he is an NDIS participant and recipient of a variety of services.

1. The Respondent submits that the government will have limited options to protect the community as conditions cannot be imposed on a permanent visa, but this would be possible if the Applicant remains in Australia as a holder of a Bridging R visa. (The Applicant notes that no BVR conditions have been identified that could help manage the Applicant’s condition and the Tribunal agrees with that submission.) The Respondent states that the Applicant is entitled to extensive support through the SRS program and has access to health and mental health care, as well as other types of support including accommodation, as a bridging visa holder.

2. The Tribunal has been provided with a Fact Sheet produced by the Department of Home Affairs which states that BVR holders may receive clinician–informed assessment to identify social, welfare, health and development needs and make targeted referral to specialist rehabilitation programs. The Fact Sheet also states that in NSW, ACSO provides a 12-month package of reintegration and rehabilitation support service to clients with extensive offending behaviour and offers a suite of forensic treatment programs including AOD, mental health, positive behaviour support and other supports.

3. The Respondent submits that while SRS support is in place, the Applicant will receive support in finding suitable accommodation and that it is not open to the Tribunal to speculate what may happen in the longer term. The Applicant submits that the SRS support is temporary (the parties agree that the service is provided for 12 months) and once the support service that he presently relies on ceases – which will occur soon if he is not granted a permanent visa - he is likely to become homeless or have unstable accommodation and this will exacerbate his condition and ability to access supports.

4. Ms Maravillas’ oral evidence is that if the Applicant becomes homeless or has unstable accommodation, this may adversely affect his ability to receive support from the support workers and to monitor his compliance with medication. Dr Laugharne in his report also refers to the desirability of stable community accommodation. The Applicant submits that he cannot afford private rental and is not eligible for community housing without a permanent visa.

5. The Tribunal accepts that it would be desirable for the Applicant to have stable accommodation. However, the evidence before the Tribunal is that until November 2025, the Applicant is eligible to receive support from SRS, which includes accommodation support. There is uncertainty as to whether the program can be extended beyond the 12 months. It is not possible (to the extent that it is permissible for the Tribunal to do so) to speculate whether the Applicant will be able to access stable accommodation once the SRS support expires in late 2025. By that time, the Applicant’s mental state and capacity for decision making may be different to what it is today. He may have access to other supports available in the community outside of NDIS that may assist with accommodation. There may be other changes in the Applicant’s circumstances or none of these circumstances may eventuate. It is not possible for the Tribunal to determine what the Applicant’s personal circumstances will be in the future.

6. Mr Win’s evidence is that there is presently an application for a guardianship order before the WACAT. The Tribunal acknowledges the oral evidence of Mr Win who told the Tribunal that the Guardian primarily responds to proposals put by others, and that the advocacy function is limited to providing letters of support, so that the guardian will not proactively look for accommodation for the subject person such as the Applicant. Mr Win informed the Tribunal that he was not familiar with the system in WA, and it is not possible to determine if a guardian appointed in WA would have a proactive role to play in supporting the Applicant with accommodation and other key decisions.

7. Significantly, the Applicant’s claim that without a permanent visa, he may become homeless or have unstable accommodation, exacerbating his mental health condition and increasing the risk of reoffending, is predicated on the assumption that the Applicant will be able to access public housing or social housing if he holds a permanent visa. However, the Applicant has not presented evidence to indicate his eligibility for supported housing (other than having to be a permanent resident), nor what the timeframes might be before the Applicant is granted such accommodation. Ms Maravillas’ oral evidence is that in her view, the Applicant would not be eligible for Supported Independent Living accommodation, so participation in NDIS will not necessarily assist the Applicant in finding stable accommodation. In the Tribunal’s view, it is purely speculative to state that if a holder of a BVR, at some point in the future the Applicant will be homeless or have no stable accommodation while as a holder of a permanent visa, he will have stable accommodation.

8. The Tribunal is not prepared to make a finding that by the end of 2025 when SRS is no longer available, and if the present support services cease, the Applicant will become homeless or will have no stable accommodation. The Tribunal does not accept the argument that, as a result, his mental health will deteriorate due to homelessness unless the Applicant is an NDIS participant and a permanent visa holder. The Tribunal finds these claims to be purely speculative.

9. The Applicant submits that the management of his mental illness is closely connected to the risk of recidivism and the Tribunal has formed the view that there is a strong causal connection between the Applicant’s mental illness, his engagement in, and response to, treatment and the risk of reoffending. The Applicant claims that to reduce the risk of recidivism, he must receive appropriate supports through NDIS. Again, the Applicant’s claims seem to be based on the assumptions that not only will he be eligible for NDIS (which the Tribunal is prepared to accept) but also that he will receive a particular level of funding that would enable a particular level of support. For example, the Applicant and Ms Maravillas spoke about a support worker checking daily to ensure compliance with medication. However, that service may or may not be funded under NDIS and the fact that Ms Maravillas recommends in her report that it would be beneficial to the Applicant, does not necessarily mean that her recommendations would be accepted. This is in addition to the fact that a service provider supporting the Applicant with medication management would be able to remind the Applicant to take medication – and report his failure to do so to health professionals – but will not be able to enforce the taking of medication. Compliance with medication may also be monitored through a CTO, which does not require the Applicant to hold any particular visa, and while the Tribunal accepts that it may take longer to ascertain non-compliance under a CTO as opposed to daily visits of an NDIS service provider (assuming it is approved by NDIS), a CTO has better mechanisms for enforcing compliance, while monitoring under NDIS has few or none.

10. The Tribunal does not accept the Applicant’s evidence that eligibility for NDIS will necessarily ensure the extensive level of support that health professionals suggest he requires.

11. It is of significant concern to the Tribunal that despite the Applicant being subject to multiple CTOs in the past, and having access to treatment, the Applicant had not always complied with treatment and the evidence suggests that he had, on multiple occasions, refused treatment. The incident reports show that on occasions in 2023 and as recently as in August – September 2024, the Applicant refused the depot injections. It is reported that in 2023, the Applicant’s mental state was so poor that he had punched a doctor and assaulted nurses. The records indicate that the Applicant initially refused the depot injection in February 2024 and resisted the injection in August 2024 and was verbally abusive at the time. On another occasion the Applicant is reported to have damaged the property where he was living.

12. The Applicant told the Tribunal that he believed the dose was not correct and that on these occasions he was stressed by what was happening around him. He states he was ‘not treated like a person’ and was feeling unwell. It is of concern to the Tribunal that the Applicant reacted violently or aggressively in response to actual or perceived stressors because he will undoubtedly experience more stressors in life in the future. In the Tribunal’s view, that shows that there is a real risk of the Applicant not complying with the medication and treatment regime in the future, or that the efficacy of treatment is questionable (consistently with the finding of Dr Laugharne) and in such circumstances there is a risk of the Applicant engaging in violent or aggressive behaviour. 

13. Ms Maravillas’ evidence to the Tribunal is that during the assessment, the Applicant recognised the need for treatment and indicated that he did want to engage with NDIS. The Applicant submits that this is evidence that he will be compliant in the future. The Tribunal accepts that the Applicant did express his willingness to engage with NDIS. However, the Applicant also recognises the need for the CTO and yet, he had in the past refused depot injections that were mandated by the CTO. The Tribunal is not satisfied that the Applicant’s stated willingness to engage in services and treatment necessarily means his future cooperation.

14. In the Tribunal’s view, there cannot be any certainty that NDIS participation will ensure the Applicant’s compliance with medication and treatment. Further, there is not any certainty that, in the absence of an active CTO in the Applicant’s place of residence, or a Guardianship order with the ‘override objection to treatment’ function, the Applicant will necessarily be compliant with treatment and will not refuse medication. As noted above, evidence before the Tribunal indicates that over the years, and as recently as late 2024 the Applicant was reluctant to have the depot injections, resulting in aggressive behaviour and threats. The Applicant’s conduct while in the community suggests there is a real possibility that he will not comply with medication, contrary to the suggestion of Dr Laugharne that residence in the community, with the appropriate support, will reduce the risk of reoffending. It is notable that Dr Laugharne’s report was prepared when the Applicant had spent some time in detention. It is not known whether Dr Laugharne’s views may be different if he was aware of the Applicant’s recent conduct in the community.

15. The Tribunal is of the view that there is a real possibility of future non-compliance with medication and treatment and that significantly increases the risk of the Applicant re-engaging in criminal behaviour.

16. The Tribunal also notes that Ms Aiello in her report in February 2021 states that the Applicant acknowledged consuming alcohol in the past and felt his consumption of alcohol was a significant contributing factor in his history of assaults. In his submission and oral evidence to the Tribunal the Applicant also stated that while he gave up on alcohol, he continued to engage in drug use as a coping mechanism and due to separation with his son. The Police fact sheets set out above do suggest that consumption of alcohol was present prior to some of the offending conduct taking place and the Applicant told the Tribunal that alcohol made him a different person and he suggests that alcohol was responsible for some of his conduct.

17. The link between the Applicant’s mental illness and his consumption of drugs and alcohol has not been established, so that even if the Applicant is treated effectively for his mental health condition, that does not necessarily mean that the Applicant will not consume alcohol or illicit drugs. The Tribunal is of the view that the Applicant’s assessment that he will not need to engage in substance abuse if he is near his son to be overly simplistic. It may be that the Applicant will feel better if he is close to his son, but it may not be the case. There may be issues in his relationship with his son in the future. It is not for this Tribunal to speculate about the nature of the Applicant’s relationship with his son and its effect on the Applicant’s mental health. It is likely, though, that the Applicant will experience other stressors when living in the community. The Tribunal does not accept the Applicant’s claim that when he lives near his son, he will no longer engage in substance abuse and the Tribunal does not accept that the Applicant’s relationship with his son will necessarily reduce the risk of reoffending.

18. There is little evidence before the Tribunal that the Applicant had engaged in any rehabilitation programs relating to the use of drugs and alcohol. The Tribunal cannot be satisfied with any certainty that in the future, the Applicant will not engage in the consumption of alcohol and / or drugs, particularly given his evidence of ongoing drug use. The Tribunal is of the view that if he does, this will increase the risk of the Applicant reoffending.

19. The Tribunal has considered the Applicant’s claims that the risk of reoffending would be significantly reduced, and the community better protected, if he holds a permanent visa and is able to access NDIS and other supports. The Tribunal accepts that the Applicant requires extensive treatment and supports but the Tribunal is not satisfied that adequate treatment and supports will only be available to the Applicant through NDIS and if the Applicant holds a permanent visa.

20. Further, for the reasons stated elsewhere, the Tribunal has formed the view that the risk of reoffending will not necessarily reduce even if the Applicant retains a permanent visa and is granted access to NDIS supports. Essentially, the Tribunal has reached that view for the following reasons. Firstly, because the Tribunal is not satisfied that the Applicant will necessarily, and consistently, engage with treatment and supports. There is no certainty that NDIS will make all the recommended supports available but even if that is the case, these cannot be enforced if the Applicant chooses to disengage. Secondly, there is some evidence before the Tribunal, notably in Dr Laugharne’s report, that even when engaging in treatment, the Applicant had not necessarily been fully responsive to treatment. And thirdly, the Tribunal has formed the view that there are other factors that contributed to past offending and that increase the risk of reoffending, such as drug and alcohol misuse. For these reasons, the Tribunal does not accept the Applicant’s claim that his ability to access NDIS will reduce the risk of reoffending. The Tribunal does not consider that the Applicant’s ability to access NDIS (which requires him to hold a permanent visa) would better protect the Australian community.

21. Ultimately, the Tribunal does not accept the Applicant’s argument that the community would be better protected if the Applicant holds a permanent visa rather than a bridging visa as he would have better access to required treatment. This is because the Tribunal is not satisfied that the Applicant will not receive adequate and appropriate treatment as a holder of a BVR, even if he does not have access to NDIS. This is so, even though the nature and extent of such treatment may not be the same and even if the Applicant could receive more extensive support, and higher Centrelink payments as a permanent resident.  It is also because the Tribunal is not satisfied the Applicant will necessarily be compliant with medication if he is an NDIS participant and because the Tribunal is not satisfied that other risk factors, such as alcohol and drug consumption, will be removed. The Tribunal also cannot assume that the Applicant will be granted a full suite of services under NDIS that he claims he requires. The Tribunal does not consider that engagement with NDIS will necessarily reduce the risk of reoffending. The Tribunal has formed these views despite the claimed presence of protective factors, such the proximity of the Applicant’s son, support from friends and the community, etc.

22. The Tribunal has formed the view that there is a high risk of reoffending. Noting the seriousness of past offences and the harm that reoffending could cause, and the high risk of reoffending irrespective of the Applicant’s visa status and the availability of NDIS supports, the Tribunal finds that this consideration weighs very heavily in favour of exercising discretion to refuse to grant the visa.

    Whether the conduct engaged in constituted family violence

23. In 2013, the Applicant committed a family violence offence in relation to his then partner. The circumstances of the offence are described above. Essentially, the Applicant threw a mug at his then partner Ms H. The Applicant submits that he has expressed remorse for the harm and has demonstrated insight into the impact of his mental health on his offending.

24. In 2006, the Applicant also committed an aggravated assault occasioning bodily harm in relation to a person he was living with. The circumstances of that offending involved the Applicant dragging a woman by the hair and slapping. In oral evidence, the Applicant denied having a relationship with that person. The Tribunal is unable to determine if the Applicant was in a relationship with the victim and, as such, the Tribunal does not find that this offence constituted family violence, for the purpose of this consideration.

25. The Applicant submits that since he will be able to remain in the country, this consideration carries neutral weight. In the Tribunal’s view, that approach is not consistent with the Ministerial Direction which does not distinguish between the Applicant’s location and residence in the community or in detention.

26. The Tribunal finds that the Applicant engaged in offending that constituted family violence in relation to Ms H. This consideration weighs heavily in favour of exercising the discretion to refuse to grant the visa.

    The strength, nature, and duration of ties to Australia

27. Paragraph 8.3.1 of the Direction provides:

    Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

28. The Applicant has been living in Australia since 2004, for a period exceeding 20 years. He did not arrive as a young child. In his declaration the Applicant refers to living in Australia for 20 years and treating Australia as his home. The Applicant started offending soon after arriving in Australia as his first offending (albeit minor) occurred in 2005.

29. The Applicant’s minor son lives in Australia, as does his former partner. There is no evidence to suggest the Applicant maintains any relationship with his former partner, although she is supportive of the Applicant’s contact with their child. There is no evidence that he has other family ties with Australian citizens or permanent residents. In oral evidence the Applicant spoke about some community support available to him in Western Australia and he gave evidence of participating in some social or sporting activities in the past. There is otherwise little evidence before the Tribunal concerning any social, employment, community or other ties that the Applicant may have established in Australia.

30. The Tribunal is prepared to accept, given the length of his stay in this country, that the Applicant may have formed some social links with Australians. However, given the scarcity of evidence about the strength of the Applicant’s ties, the Tribunal gives this consideration only limited weight against the exercise of discretion to refuse to grant the visa.

    The best interests of minor children in Australia

1. Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.

2. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

3. The Applicant has a child born in November 2010 who is presently 14 years of age. The Applicant’s son is a First Nations child, and the Applicant refers the importance of family and kinship ties to Indigenous identity. 

4. In his statement dated 20 December 2023, the Applicant referred to his desire to live in WA near his son, which, the Applicant states, is supported by the child’s mother. The Applicant told the Tribunal that he has not had contact with his son for a number of years and cannot have such contact due to the conditions of his BVR.

5. The Applicant’s son provided a statement dated 12 December 2024 in which he refers to his relationship with his father, the past visits to the detention centre and their ongoing communication on the phone. He refers to his desire to visit his father and states that if his father was to leave Australia, he would be ‘sad’ as he would not be able to see him again. 

6. The Tribunal accepts that the Applicant has an ongoing relationship with his son, who is a minor. The Tribunal accepts that both the Applicant and his son wish to maintain that relationship. The evidence before the Tribunal is that a condition of his Bridging visa is that the Applicant is precluded from making contact with his son who is a member of the family of Ms H who was a victim in relation to the family violence offending. The Tribunal thus accepts that unless that condition is varied, the Applicant cannot make contact with his son and that he would be able to do so if he holds a permanent visa that is not subject to that condition. That consideration weighs very heavily against the exercise of discretion.

7. In his December 2024 statement, the Applicant states that he cannot remain on a bridging visa for a long time as he cannot support his son financially and he would have a higher rate of payment if he is on DSP. The Tribunal is mindful that there is no suggestion that the Applicant had ever provided financial support to his son in the past, and no evidence that such support is needed. In the circumstances, the Tribunal does not consider his claimed inability to provide financial support to the child to be either contrary to the best interests of the child, nor causing hardship to the Applicant.

8. The Tribunal accepts that it may be in the best interests of the child to maintain a relationship with the Applicant. The Tribunal finds that this consideration weighs heavily against the exercise of discretion to refuse to grant the visa.

   Expectations of the Australian community

9. Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:

   The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

10. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

11. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

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

12. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[3] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[4]

    [3] [2019] FCAFC 185 (‘FYBR’).

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

13. Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

14. In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs,[5] the High Court said (regarding the same primary consideration as it appeared at paragraph 8.4 in the former Direction 90):

    Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the Applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case.
    

    [5] [2024] HCA 2 at [51]-[52]

    Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the Applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)- (3) are the relevant norm described as the expectations of the Australian community...

15. The Applicant refers to Australia’s obligations towards people with disabilities and refers to the earlier Tribunal reasoning in 2022, stating that the Australian community would be ‘fair minded and mature’. The Applicant submits that the community would expect him to be granted a permanent visa to be able access the supports that Australian citizens can access. In the Tribunal’s view, that submission is misguided because the Applicant has not established that he would not be able to access appropriate and adequate support unless he is a holder of a permanent visa and an NDIS participant. As noted above, the DHA Facts Sheet provides that Bridging R visa holders will have access to forensic clinical assessments which would inform targeted referrals to rehabilitation programs and mental health services. 

16. The Tribunal does not accept the Applicant’s claim that the only way that he would be able to access treatment and supports, at least in the immediate future, is by being a permanent resident of Australia with access to NDIS, even if the Applicant may be able to access a broader range of services under NDIS.

17. The Tribunal is also of the view that it cannot be taken for granted, as the Applicant seems to suggest, that the expectations of the community would give preference to Australia’s obligations towards people with disabilities where doing so may increase the risk of serious harm to the community or members of the community.

18. The Tribunal has formed the view that, given the seriousness of the Applicant’s conduct and the potential harm to the community of any repeat of such conduct, the community expectations weigh very heavily in favour of exercising the discretion to refuse the grant of the visa.

    OTHER CONSIDERATIONS

19. It is necessary to look at the other considerations listed in section 9 of the Direction.

    Legal consequence of the decision

20. It is not in dispute in this case that the Applicant is subject of a protection finding made in 2017. Paragraph 9.1.1(2) of the Direction directs a decision-maker to take into account the following:

    Section I97C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.

21. The Tribunal accepts that a protection finding implies that Australia owes protection obligations to the Applicant. That means that the Applicant cannot be removed to his home country. If the Applicant is not granted a visa, he may be an unlawful non-citizen and he may be detained. The High Court ruled in NZYQ[6] that immigration detention becomes unlawful once the point has been reached that there is no real prospect of a detainee’s removal becoming practicable in the reasonably foreseeable future. As such, the Applicant is unlikely to face indefinite detention.  

    [6] [2023] HCA 37

22. Evidence before the Tribunal indicates that the Applicant has been granted a Class WR Bridging R visa, most recently in November 2024. The Applicant will not be detained in immigration detention while this Bridging visa remains in effect. The conditions of the Applicant’s release would be subject to the high Court’s findings in YBFZ.[7] The Applicant provided to the Tribunal a copy of the visa grant notice in relation to the BVR, dated 11 November 2024. The conditions that attach to the Applicant’s BVR are: 8303, 8401, 8513, 8541, 8542, 8543, 8551, 8552, 8553, 8554, 8555, 8556, 8560, 8561, 8562, 8563, 8614, 8616, 8624 and 8625. The Applicant submits that the conditions, which include daily reporting, restrictions on employment and requirement to cooperate with removal, are a material imposition on his freedom and privacy. The Tribunal does not consider that to be the case, noting the Applicant’s evidence that he cannot, and does not intend to engage in employment and that the other legislative provisions, set out below, require the Applicant’s cooperation with removal. The Tribunal acknowledges that the Applicant may be required to report and there are some limitations on his movements and these conditions constitute some restrictions. The Applicant’s evidence is that he has moved to Western Australia with the knowledge and approval of Immigration. That indicates that the Applicant is able to move to another part of the country as he wishes and still comply with visa conditions. The Tribunal does not consider that compliance with these conditions would cause extensive hardship to the Applicant.

    [7] YBFZ v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] HCA 40

23. The Migration Amendment Act (Cth) 2024 and the Migration Amendment (Removal and Other Measures) Act (Cth) 2024 provide that a BVR may cease to be in effect once a mandatory notice is given to a visa holder by the Minister that s 76AAA applies to the visa holder. This may occur where permission is granted by a third country for the BVR holder to enter and remain in that country. This would provide a removal pathway for non-citizens such as the Applicant and requires the Applicant to cooperate with efforts to ensure his prompt and lawful removal. The Applicant may face a mandatory sentence of imprisonment if he does not cooperate with the Minister’s direction. That means that there is a possibility that the Applicant might be removed to a third country and would have to comply with the directions of the Minister to facilitate his removal, or face imprisonment.

24. Generally, the Tribunal accepts that the need to comply with visa conditions – some of which are restrictive – and the uncertainty about the future, including the possibility of future removal, are matters that may cause hardship to the Applicant.

25. The Tribunal also accepts that not having a permanent visa will preclude the Applicant from being able to access NDIS and supported housing. This will also result in hardship for the Applicant.

26. The Tribunal finds that this consideration weighs against the exercise of discretion and gives it significant weight.

    Extent of impediments if removed

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

    a)  the non-citizen’s age and health;

    b)  whether there are any substantial language or cultural barriers; and

    c)  any social, medical and/or economic support available to that non-citizen in that country.

28. As the Applicant is the subject of a protection finding, he may not be removed to his home country. That is, irrespective of the present decision, there is no prospect of the Applicant being removed to his home country unless he consents to such removal. The issues relating to the possibility of the Applicant being removed to another country are addressed elsewhere.

29. The Tribunal finds that this consideration is neutral.

    Impact on Australian business interests

30. Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:

    Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’

31. There is no evidence that if the Applicant cannot remain in Australia, this would significantly compromise the delivery of a major project or important service in Australia or otherwise affect any business interest. This consideration is neutral.

    Other Matters

32. As noted above in relation to the legal consequences of removal, there is a possibility of the Applicant being removed to a third country. The Tribunal has determined that the Applicant cannot be removed to his home country as he is the subject of a protection finding. However, the Tribunal has considered the consequences of the Applicant being removed to another country.

33. The evidence before the Tribunal indicates that the Applicant is receiving treatment in relation to his mental health. As there are no arrangements for the Applicant’s removal to any other country, it is not possible to determine whether adequate and appropriate treatment would be available to the Applicant in another country, and it is not for this Tribunal to speculate whether the Applicant would be removed to another country in the future.

34. The Tribunal accepts that the Applicant has a number of mental health issues and accepts the stated diagnoses. The Applicant submits that he will be permitted to remain in Australia, whether as a holder of a permanent visa or as a holder of a Bridging visa and that having permanent residence will enable him to access NDIS and the supports that he needs, thus reducing the risk to the community and reflecting community expectations. These claims have been addressed above. The Tribunal acknowledges that the Applicant will likely be eligible for NDIS if he is an Australian permanent resident and that he may not be able to access NDIS if he is not a permanent resident of Australia. As noted above, the Tribunal does not consider that the accessibility of NDIS equates to the Applicant’s ability to access adequate treatment. The Tribunal accepts the Respondent’s submission that the Applicant has access to a number of support services, which will continue irrespective of his immigration status, at least in the immediate future.

35. Generally, the Tribunal accepts that the Applicant will have access to a wider range of services and supports, and that such services and support will be provided on a longer-term basis, if the Applicant is a holder of a permanent visa. The Tribunal finds that these considerations weigh somewhat against the exercise of discretion to refuse to grant the visa.

    CONCLUSION

36. The Tribunal has had regard to the factors set out in the Direction and the Applicant’s circumstances. The Tribunal has found that the Applicant’s offending was serious, with several of his offences involving violence towards others, often unprovoked violence. The Applicant also committed serious offences including family violence and offences while in immigration detention. Significantly, the Tribunal has formed the view that there remains a high risk of the Applicant reoffending as there is no certainty that he will be compliant with medication and treatment or that any such treatment will necessarily be effective and reduce the risk of reoffending.

37. The Tribunal has determined that the protection of the community weighs very strongly in favour of exercising the discretion to refuse to grant the visa.

38. The Tribunal finds that the expectation of the community also weighs very strongly in favour of the exercise of discretion to refuse to grant the visa, given the nature and extent of the Applicant’s offending and despite Australia’s obligations towards the Applicant as a person with a disability.

39. The Applicant had committed a family violence offence and this consideration also weighs in favour of exercising discretion to refuse to grant the visa.

40. The best interests of the child weigh heavily against the exercise of the discretion.

41. The Tribunal has also accepted that, given the length of the Applicant’s stay in Australia, he is likely to have formed some ties in this country and this primary consideration weighs against the exercise of discretion.

42. There is no evidence of any impact on a business and that consideration is neutral. The Applicant cannot be removed from Australia to his home country and that consideration is also neutral. In relation to the legal consequences, the Tribunal accepts that these may be detrimental to the Applicant and these weigh against the exercise of discretion.

43. The Tribunal accepts that there may be hardship to the Applicant if he is not granted the visa because he may not be eligible to access a wider range and longer-term supports through NDIS than what may otherwise be available to him (although the Tribunal has formed the view that the Applicant may still be able to access appropriate treatment even if he is not a holder of a permanent visa) and other supports such as DSP and higher level of Centrelink payments. The Tribunal accepts that there may be uncertainty over the Applicant’s ability to remain in Australia in the longer-term future, given the possibility (whether it is presently realistic or otherwise) that the Applicant may be removed to a safe third country. There may also be some hardship associated with compliance with Bridging visa conditions. These factors weigh strongly in favour of the Applicant being granted the visa and the Tribunal has given these significant weight.

1. In the circumstances of this case, the Tribunal has decided to give greatest weight to the protection of the community. The Direction provides at 8.1.2 that “some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.” The policy also provides that:

   in some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

2. In the Tribunal’s view, this is such a case. The harm that may be caused to members of the community if the Applicant was to reoffend and if he was to act with violence towards other members of the community poses an unacceptable risk. The Tribunal acknowledges that there are considerations that favour the grant of the visa but, in the circumstances of this case, has determined that the protection of the community, which weighs strongly in favour of exercising discretion, outweighs all other considerations.

3. Having regard to all the circumstances, the Tribunal has decided that the discretion to refuse to grant the visa should be exercised. 

   DECISION

4. The Tribunal affirms the decision under review to refuse the application for a Class XA protection visa.

Date(s) of hearing:	21 & 22 January 2025
Counsel for the Applicant:	Ms C Nguyen
Solicitors for the Applicant:	Ms H Gray, Legal Aid NSW
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor