NJCT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 117

NJCT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 117 (2 February 2024)
Division:General Division
File Number(s):2022/6917
Re:NJCT
APPLICANT

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRSAnd
RESPONDENT

DECISION
Tribunal:The Hon Justice Kyrou, President
Date:2 February 2024
Place:Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
..........................[SGD]..............................................
Catchwords

MIGRATION – decision refusing to grant a class XA, subclass 866 Protection visa under s 65 of Migration Act 1958 – whether applicant, having been convicted of a particularly serious crime, is a danger to Australian community – applicant suffers from drug addiction and schizophrenia, characterised by command auditory hallucinations, gross thought disorder, delusional beliefs, disorganised behaviour and aggression when unwell – applicant is a danger to Australian community – decision affirmed.

MIGRATION – decision refusing to grant a class XA, subclass 866 Protection visa – applicant in immigration detention at time of hearing – applicant released into community on a Bridging E, class WE, subclass 050 visa under s 195A of Migration Act 1958 after hearing concluded – parties permitted to make supplementary submissions – relevance of fact respondent decided to release applicant into community on a Bridging E, class WE, subclass 050 visa instead of a Bridging R, class WR, subclass 070 visa.

MIGRATION – issue of danger to Australian community – extent to which principle that imprisonment is a last resort in sentencing assists in assessing seriousness of a person’s offending.

Legislation
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases

DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104

WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3728

WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434; [2009] AATA 512
Table of Contents

DECISION

REASONS FOR DECISION

INTRODUCTION AND SUMMARY

RELEVANT PROVISIONS OF THE MIGRATION ACT 1958

RELEVANT PRINCIPLES

Definition of ‘serious Australian offence’: ‘offence … involves violence against a person’
Danger to the Australian community
Concept of ‘danger’
Relationship between index offence and assessment of danger to community
Factors relevant to assessment of ‘danger to the Australian community’

NON-CONTENTIOUS FACTS

Applicant’s life in Afghanistan; overview of his life in Australia
Applicant’s criminal history
Applicant’s migration history and antisocial behaviour in the community

‘DANGER TO THE AUSTRALIAN COMMUNITY’ – RELEVANT LEGISLATION

‘DANGER TO THE AUSTRALIAN COMMUNITY’ – EVIDENCE AT THE HEARING

Evidence of the applicant
Applicant’s statutory declaration and statements
Applicant’s oral evidence regarding his offending and other violent conduct
Applicant’s oral evidence regarding his rehabilitation
Applicant’s oral evidence regarding his temporary release into the community
Applicant’s oral evidence regarding his plans to avoid further offending
Findings on the applicant’s credibility and the reliability of his evidence

Evidence of Dr Zimmerman
Diagnosis of schizophrenia and its effects upon the applicant
Applicant’s plans if he is released into the community
Risk posed by the applicant
Findings on Dr Zimmerman’s credibility and reliability of her evidence

‘DANGER TO THE AUSTRALIAN COMMUNITY’ – PARTIES’ SUBMISSIONS AT THE HEARING

EVENTS AFTER THE HEARING CONCLUDED

Overview
Relevant legislative provisions
Non-contentious facts
Statements made on instructions from the applicant
Parties’ supplementary written submissions

‘DANGER TO THE AUSTRALIAN COMMUNITY’ – DECISION

CONCLUSION

DECISION

Table of Initials and Pseudonyms

Initials/pseudonym Individual concerned

NJCT The applicant.

AT One of the applicant’s older brothers with whom the applicant lived in Australia for some time and who obtained a family violence intervention order against the applicant.

BT The applicant’s other older brother who lives in Australia.

CC The victim of the applicant’s intentionally causing injury offence.

DD The person threatened by the applicant at a petrol station.

EE The victim of the applicant’s recklessly causing injury offence.

FF The woman who was approached by the applicant on public transport after he was released from immigration detention in December 2022.

GG The woman who was approached by the applicant at a hotel after he was released from immigration detention in December 2022.

MHT Victorian Mental Health Tribunal

FVIO Family violence intervention order
REASONS FOR DECISION
INTRODUCTION AND SUMMARY

The applicant was born in Afghanistan. He belongs to the Hazara ethnic group and Shia Islam faith, but he is no a longer a practising Muslim. He arrived in Australia as a dependent applicant on a provisional partner visa when he was about 15 years of age. Soon afterwards, he was granted a migrant partner visa.
The applicant suffers from drug addiction and schizophrenia, characterised by command auditory hallucinations, gross thought disorder, delusional beliefs, disorganised behaviour and aggression when unwell.
After pleading guilty to various offences in the Dandenong Magistrates’ Court in mid-2021 and appealing against the sentence imposed by that Court, in late 2021 the applicant was sentenced by the County Court of Victoria to an aggregate of 12 months’ imprisonment with a non-parole period of 6 months.
On 22 August 2022, a delegate of the respondent Minister (‘Delegate’) decided that the applicant had a well-founded fear of persecution on the basis of his Hazara ethnicity and Shia Muslim faith, such that he was a refugee within the meaning of s 5H of the Migration Act 1958 (‘Act’). However, the Delegate refused to grant the applicant a class XA, subclass 866 protection visa under s 65 of the Act on the basis that he did not satisfy the criterion in s 36(1C)(b) (‘Delegate’s decision’). The Delegate also decided that the applicant was ineligible for the grant of a protection visa pursuant to s 36(2C)(b)(ii).
As appears from [‎11] below, the criterion in s 36(1C)(b) of the Act concerns whether the applicant, having been convicted by final judgment of a particularly serious crime, is a danger to the Australian community. Section 36(2C)(b)(ii) raises the same issues as s 36(1C)(b).[1]
[1] As ss 36(1C)(b) and 36(2C)(b)(ii) have similar wording, I will focus on s 36(1C)(b). My observations on s 36(1C)(b) also apply to s 36(2C)(b)(ii).
The applicant has applied for review of the Delegate’s decision.
The application for review involves two issues. The first issue is whether the applicant has been convicted by final judgment of a particularly serious crime. As a result of properly made concessions by the applicant, this is not a critical issue in this case. The second – and central – issue is whether the applicant is a danger to the Australian community.
The hearing of the application for review took place on 1, 2 and 21 November 2023. The events that occurred after the conclusion of the hearing are discussed below under the heading ‘Events after the hearing concluded’.
For the reasons that follow, the Delegate’s decision will be affirmed.

RELEVANT PROVISIONS OF THE MIGRATION ACT 1958

Section 65 of the Act provides that the Minister must be satisfied of certain preconditions before he may grant a visa. Those preconditions are described as ‘criteria’ that are prescribed by the Act or the regulations. Section 36 of the Act prescribes criteria for the grant of a protection visa.
Section 36 of the Act relevantly provides as follows:
36Protection visas—criteria provided for by this Act
(1A)An applicant for a protection visa must satisfy:
(a)    both of the criteria in subsections (1B) and (1C); and
(b)    at least one of the criteria in subsection (2).
(1B)A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security… .
(1C)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. …
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)    a non‑citizen in Australia … in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
…
…
Ineligibility for grant of a protection visa
(2C)A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
…
(b)    the Minister considers, on reasonable grounds, that:
(i)the non-citizen is a danger to Australia’s security; or
(ii)the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
Section 5M of the Act provides as follows:
5M Particularly serious crime
For the purposes of the application of this 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)a serious Australian offence; or
(b)a serious foreign offence.
A ‘serious Australian offence’ is defined by s 5(1) of the Act 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
…     …; and
(b)the offence is punishable by:
…
(iii)   imprisonment for a maximum term of not less than 3 years.
The Act does not define ‘violence against a person’, ‘serious drug offence’ or ‘serious damage to property’.
For present purposes, in order for the applicant to be granted a class XA, subclass 866 protection visa, the Delegate had to be satisfied that:
(a)the applicant was a person in respect of whom Australia had protection obligations because he was a refugee;
(b)the applicant was not a person who had been assessed as a risk to security by the Australian Security Intelligence Organisation; and
(c)the applicant was not a person whom the Delegate considered on reasonable grounds:
(i)is a danger to Australia’s security; or
(ii)having been convicted by final judgment of a particularly serious crime, is a danger to the Australian community.
The Delegate was satisfied of (a), (b) and (c)(i) but not (c)(ii).[2]
[2] The Delegate was also satisfied that the applicant was not eligible for the grant of a protection visa pursuant to s 36(2C)(b)(ii) of the Act.
As discussed below, it was conceded by the applicant that he has been convicted by final judgment of particularly serious crimes, being the offences of intentionally causing injury and recklessly causing injury. Accordingly, the issue in dispute is whether, having been so convicted, the applicant is a danger to the Australian community.
Further provisions of the Act and certain provisions of the Migration Regulations 1994 (Cth) (‘Regulations’) are discussed below under the heading ‘Events after the hearing concluded’.

RELEVANT PRINCIPLES

In WKBF v Minister for Immigration, Citizenship and Multicultural Affairs,[3] I summarised in detail some of the legal principles, including principles of statutory interpretation, that are relevant to the determination of a question under s 36(1C)(b) of the Act. Except to the extent set out below, I need not repeat my summary of those principles. However, I have taken them into account in resolving the current proceeding.
[3] [2023] AATA 3728 (‘WKBF’).

Definition of ‘serious Australian offence’: ‘offence … involves violence against a person’

It will be recalled from [‎13] above that the definition of ‘serious Australian offence’ in s 5(1) of the Act refers to an offence which ‘involves violence against a person’, ‘is a serious drug offence’ or ‘involves serious damage to property’. In the present case, the respondent relies only upon offences which are said to involve violence against a person. Accordingly, it is not necessary for me to discuss the meaning of the phrases ‘serious drug offence’ and ‘offence … involves serious damage to property’.
The offences that the applicant has committed are summarised at [‎44] to [‎53] below. The respondent relied only upon the offences of intentionally causing injury and recklessly causing injury as ‘serious Australian offences’ within the meaning of s 5(1) of the Act. Those offences were committed in late 2020 and a few months into 2021, and the applicant was sentenced in late 2021.[4] The circumstances of the offences are discussed later in these reasons.
[4] See [‎3] above, [‎47], [‎49] and [‎53] below.
Under s 18 of the Crimes Act 1958 (Vic), as in force at the time of the offending:
(a)the elements of the offence of intentionally causing injury were intentionally causing injury to another person without lawful excuse and the maximum penalty was then 10 years’ imprisonment; and
(b)the elements of the offence of recklessly causing injury were recklessly causing injury to another person without lawful excuse and the maximum penalty was then 5 years’ imprisonment.
The respondent submitted, and the applicant conceded, that the applicant’s convictions for the offences of intentionally causing injury and recklessly causing injury involved violence against a person and therefore they constituted:
(a)‘serious Australian offences’ within para (a)(i) of the definition of that term in s 5(1) of the Act; and
(b)‘particularly serious crimes’ for the purposes of s 36(1C)(b).
In my opinion, the concession made by the applicant was appropriate. It follows that I am satisfied that he has been finally convicted of two particularly serious crimes, namely, intentionally causing injury and recklessly causing injury.

Danger to the Australian community
Concept of ‘danger’

In WKBF,[5] I summarised the principles set out in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[6] and SLGS v Minister for Immigration, Citizenship and Multicultural Affairs[7] as follows:
[5] [2023] AATA 3728 [64]–[70]. (citations omitted).
[6] (2023) 297 FCR 550 (‘DMQ20’).
[7] [2023] FCAFC 104 (‘SLGS’).
Neither the Act nor the Convention [Relating to the Status of Refugees[8]] defines the concept of ‘danger’ for the purposes of s 36(1C)(b) of the Act, and a precise definition is likely not possible. It is a term of everyday usage without a technical meaning and should be understood to carry its ordinary meaning. It falls for consideration under the light of the whole of the relevant facts and circumstances that present in any given case.
[8] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
Conceptually, ‘danger’ is a function of probability and consequence, both of which may be measured along spectra. When assessing the presence of danger (in the sense that the natural and ordinary meaning of that word imports), the required analysis is both quantitative (what is the level of probability that something might happen?) and qualitative (what are the consequences if it does?). The process of assessing what combinations of probability and consequence suffices to qualify as ‘danger’ for the purposes of s 36(1C)(b) of the Act involves speculation and thus is not capable of producing a precise determination.
For the purposes of the qualitative dimension in the probability component of the concept of ‘danger’, ‘risk’, ‘possibility’ and ‘probability’ are synonymous, in the sense that there exists a ‘danger’ if there is a sufficient risk, possibility or probability of sufficient harm. The use of adjectives such as ‘real’, ‘significant’ and ‘substantial’ to describe what suffices for present purposes is misconceived. A person that presents a sufficient likelihood of sufficient harm will pose a danger even though there remains a prospect – and perhaps, in some cases, a likelihood – that the harm might never be realised.
For the purposes of the qualitative dimension in the consequence component of the concept of ‘danger’, as s 36(1C)(b) of the Act involves an exception to Australia’s protection obligations, it is likely that Parliament intended that the consequence should involve harm of non-trivial kinds. Accordingly, even a very high likelihood or certainty that a person might cause others to feel anxious, offended, embarrassed, miserable or despondent is unlikely to suffice. ‘Danger’ implies a prospect (however measured) of injury (at the very least), most likely of physical or psychological kinds.
It follows that a person will pose a ‘danger’ insofar as there is a sufficient likelihood (as described above) that they will engage in conduct that visits upon others a sufficient degree of harm (as described above).
The principles summarised … above are derived from the plurality decision of Thomas and Snaden JJ in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. Their Honours made the following concluding observations:
To speak of the presence of ‘danger’, then, is to speak of a risk of harm that extends beyond what ordinarily attends routine human activity. …
Insofar as danger might present in the form of a person (as s 36(1C) of the Act contemplates), the likelihood that he or she might visit harm upon others must at least rise beyond what is contemplated by ordinary personal interactions. …
In its human form, then, ‘danger’ presupposes that there should be something about a person’s character or proclivities (or both) that suggests a probability and quality of harm to others that is beyond the typical consequences of routine interaction. Ordinarily, that would fall to be assessed by reference to the person’s prior conduct and the likelihood that it might be repeated. A person with no history of violent offending would ordinarily be thought not to pose any danger to others, no matter that he or she might possess some real capability to inflict harm. A person with an appetite for and history of violence, on the other hand, might well be thought otherwise.
In DMQ20, Rares J adopted a different approach to the concept of ‘danger’ than that of Thomas and Snaden JJ. The reasoning of Thomas and Snaden JJ was adopted by Jackson J (with whom Snaden J agreed) in SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. In SLGS, Rares J stated that, although he adhered to his reasoning in DMQ20, he agreed that the reasoning of Thomas and Snaden JJ must now be applied.
In the present case, the parties did not cavil with the above summary of the relevant principles.

Relationship between index offence and assessment of danger to community

It will be recalled that the criterion in s 36(1C)(b) is expressed as follows: ‘the applicant is not a person whom … having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community’. In WKBF, I discussed whether s 36(1C)(b) requires that there be some causal connection between the particularly serious crime, of which a person has been convicted by final judgment (‘index offence’), and the assessment whether the person is a danger to the Australian community. I expressed the following views:[9]
(a)Unaided by authority, I would have concluded that there must be a causal connection between the index offence and the assessment of whether an applicant constitutes a danger to the Australian community, and that connection can be established if the index offence is ‘a’ cause of that assessment.
(b)At present, there is no authoritative Federal Court case law on the issue of a causal connection between the index offence and the assessment of danger to the Australian community.
(c)Even if a causal connection is required, factors other than the index offence may be taken into account in determining whether a person is a danger to the Australian community.
[9]WKBF [2023] AATA 3728, [73]–[107].
In the present case, the index offences for the purposes of s 36(1C)(b) of the Act are the offences of intentionally causing injury and recklessly causing injury.
Both parties advised that they did not wish to make any submissions regarding the views I expressed in WKBF on the above issue of a causal connection between the index offences and the assessment of whether the applicant constitutes a danger to the Australian community. In any event, that issue is not in contention in the present case because it was common ground that the possible danger posed by the applicant was that he might commit an offence of a similar kind to the index offences.[10]
[10] Since I published my reasons in WKBF, a further decision of the Federal Court discussing the issue of the relationship between the index offence and the assessment of whether a person is a danger to the Australian community has been published. In VCFR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1606, [105]–[108] O’Sullivan J, in obiter observations, agreed with a submission made by the Minister that there is not an inherent ‘like for like’ link between the two concepts of a ‘particularly serious crime’ and a ‘danger to the Australian community’ in s 36(1C)(b) of the Act.

Factors relevant to assessment of ‘danger to the Australian community’

In WKCG v Minister for Immigration and Citizenship,[11] after observing that the question whether a person constitutes a danger to the Australian community is one of fact and degree which must be determined having regard to all the circumstances of each case, Tamberlin DP stated that the considerations relevant to that question include the following factors:
·‘the seriousness and nature of the crimes committed’
·‘the length of the sentence imposed’
·‘any mitigating or aggravating circumstances’
·‘[t]he extent of the criminal history … the nature of the prior crimes, together with the period over which they took place … [t]he criminal record must be looked at as a whole’
·‘[t]he risk of re-offending and recidivism and the likelihood of relapsing into crime’
·‘prospects of rehabilitation’.[12]
[11] (2009) 110 ALD 434, 438 [25]–[26]; [2009] AATA 512 (‘WKCG’).
[12] This paragraph repeats WKBF [2023] AATA 3728, [108].
The factors set out in WKCG are ‘pertinent’[13] and ‘useful’,[14] provided that they are approached not as a ‘test’ or a mechanical checklist, but as a guide to assessing the fundamental question of fact.[15] The assessment required by s 36(1C)(b) of the Act has been described as ‘multifactorial’ and the process of assessment as one ‘in which all factors, by instinctive synthesis, are given consideration’.[16] The factors relevant to the assessment will depend on the facts of each case. The assessment is not constrained by the factors set out in WKCG.[17]
[13]          DOB18 v Minister for Home Affairs (2019) 269 FCR 636, 655 [78].
[14]          SLGS [2023] FCAFC 104, [85].
[15]          SLGS [2023] FCAFC 104, [85].
[16]          FSKY v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 295 FCR 625, 627 [5], 633 [40], 634 [42], 635 [46], 638–9 [65].
[17]          This paragraph repeats WKBF [2023] AATA 3728, [109].
In WKBF, I made extensive observations on the factors set out in WKCG. It is not necessary for me to repeat my observations in full. It suffices to set out the following observations which are particularly relevant to the present case:[18]
[18] WKBF [2023] AATA 3728, [111]–[123] (citations omitted).
First, there is considerable overlap between the factors. For example, as discussed below, aggravating circumstances are relevant to an assessment of the seriousness of the crime committed. Further, the nature of an offender’s criminal history, some mitigating circumstances and an offender’s prospects of rehabilitation can be very relevant to an assessment of the risk of reoffending.
Secondly, the seriousness and nature of the crimes committed refers to the offender’s actual offending. Some offences are serious but may be committed in a range of ways and in circumstances which vary greatly along a spectrum of gravity. For example, the offence of intentionally causing injury is a serious offence with a maximum penalty of 10 years’ imprisonment under s 18 of the Crimes Act 1958 (Vic) and thus satisfies para (a)(i) of the definition of ‘serious Australian offence’ in s 5(1) of the Act. However, if the injury caused by the offender is minor – such as a miniscule scratch or bruise that heals quickly without leaving a mark – it cannot be said that the offender’s actual offending was at the high end of the spectrum of gravity.
Thirdly, the length of the sentence imposed must be considered in the context of whether the offender has been convicted and sentenced for a single offence or for multiple offences. In the former case, the length of the sentence as a proportion of the maximum penalty may provide an indication of the seriousness of the offending. In the latter case, the individual sentences for each offence and the orders for cumulation made for sentences other than the base sentence are important. …
Fourthly, in sentencing law, a mitigating circumstance is any circumstance which may warrant moderation in the sentence that might otherwise be appropriate. Mitigating circumstances include: a plea of guilty; cooperation with law enforcement authorities; remorse; demonstrated rehabilitation; the existence of protective factors – such as a supporting family and friendship network – that reduce the risk of reoffending; provision of restitution to victims; and any matter which reduces the offender’s moral culpability for the offence, including youth and mental illness. In relation to mental illness, it is well established that if there is a causal link between the offender’s mental illness and the commission of the offence, the offender may be entitled to mitigation in sentence on the basis that their moral culpability for the offending is reduced.
Of course, for the purposes of s 36(1C)(b) of the Act, the question that arises in relation to mitigating circumstances is not how they inform an assessment of an appropriate sentence, but how they inform an assessment of whether the offender is a danger to the Australian community. However, depending on the precise facts of a case, there may be some overlap between the two questions, particularly since some mitigating factors may have an impact on the risk of reoffending.
In the case of a mental illness, if the illness contributes to a person being violent, they can be found to pose a danger to the Australian community notwithstanding the illness may be a mitigating factor for sentencing purposes or might even render them incapable of being found guilty of an offence due to mental impairment. That is because conduct – such as homicide – can render a person a danger to the Australian community even if they cannot be found guilty of any offence for that conduct. However, there must first be a conviction for a particularly serious crime before the issue of danger can arise in relation to conduct that was committed or may be committed subsequent to that conviction.
Fifthly, in sentencing law, an aggravating circumstance is any circumstance, over and above the elements of an offence, which adds to the gravity of the offending. … As aggravating circumstances add to the gravity of the offending, they are relevant to an assessment of the seriousness of the offending.
It is important to note that, in sentencing law, aggravating circumstances generally refer to the circumstances of the offending itself and events leading up to it, such as pre-planning. Aggravating circumstances usually do not include conduct subsequent to the offending. … Further, where the offender commits two offences immediately after each other but is charged with only the first of the offences, the commission of the second offence cannot be treated as an aggravating circumstance of the first offence. Additionally, the absence of a mitigating circumstance – such as lack of remorse and lack of progress towards rehabilitation – cannot be treated as an aggravating circumstance.
Once again, for the purposes of s 36(1C)(b) of the Act, the question that arises in relation to aggravating circumstances is how they inform an assessment of whether the offender is a danger to the Australian community, particularly insofar as they may have an impact on the risk of reoffending.
Sixthly, in considering an offender’s criminal history, the focus should not be on the number of offences committed but on the nature and seriousness of the individual offences comprising the criminal history and the period covered by that history. … Similarly, the fact that an offender has a tendency to disregard the law and is not a law-abiding individual, does not in and of itself demonstrate that they are a danger to the Australian community. … Section 36(1C)(b) is directed to particular types of offences which have particular consequences.
Seventhly, the risk of re-offending and recidivism and the likelihood of relapsing into crime must not be considered in terms of offences in the abstract. What is relevant is the risk of committing an offence which poses a danger to the Australian community, rather than any form of reoffending. …
The causes of the prior offending are relevant in this context. … In cases … where it is contended that there is an insufficient probability of reoffending because the underlying cause of the offending has been eliminated, it may assist in making out that contention if there is expert evidence about the underlying cause of the prior offending and the elimination of that cause.
Eighthly, prospects of rehabilitation involve an assessment of the degree to which the offender has already addressed the factors that contributed to the prior offending and the degree to which they are willing and able to continue to address those factors so as to reduce the risk of reoffending. Again, what is relevant is rehabilitation that addresses the risk of committing offences which pose a danger to the Australian community, not offences in the abstract. An assessment of the prospects of rehabilitation involves consideration of measures already taken to promote rehabilitation, the progress that has been made to date and measures that will be taken in the future to promote rehabilitation. Measures already taken include completion of recidivism avoidance programs and treatment that seeks to address the underlying causes of prior offending and guard against reoffending. Measures that will be taken in the future include continuation of programs and treatment. The existence of protective factors – such as a supporting family and friendship network – that assist the offender to focus on socially positive behaviour and discourage further offending are also relevant to an assessment of prospects of rehabilitation.
I would add a further observation in relation to the factors ‘the seriousness and nature of the crimes committed’ and ‘the length of the sentence imposed’. I have noticed that, in many decisions of the Tribunal and delegates of the Minister, it has been said that an offence is at the serious end of offending because a sentence of imprisonment was imposed. A prison sentence has been said to be an indicator of the seriousness of the offending because imprisonment is the most severe form of sentence available in Australian courts or, put another way, because imprisonment is the last resort in sentencing. In my opinion, this type of reasoning should be avoided because it is very simplistic and capable of leading to erroneous assessments of seriousness of offending. For example, an offender who causes a minor scratch upon a victim may be sentenced to 1 month imprisonment for the offence of intentionally causing injury. As this offence is subject to a maximum penalty of 10 years’ imprisonment under s 18 of the Crimes Act 1958 (Vic), it cannot sensibly be concluded that the offence committed by the offender is at the serious end of the spectrum of seriousness for the offence of intentionally causing injury.

NON-CONTENTIOUS FACTS
Applicant’s life in Afghanistan; overview of his life in Australia

As I have stated before at [‎1] above, the applicant was born in Afghanistan. He belongs to the Hazara ethnic group and Shia Islam faith.
The applicant has no memory of his father and reported that his father was killed by the Taliban. His mother died in about 2007 in Pakistan.
The applicant reported that he was raped twice while living in Afghanistan, that he felt ‘dirty’ because of this and that he did not tell anyone.
The applicant fled Afghanistan for Pakistan in around 2006, when he was about 13 years old and lived there until 2008 when he came to Australia. He has two older brothers who live in Australia (AT and BT), while another older brother and two older sisters remain overseas.
The applicant lived in Australia with his brother AT and AT’s wife and attended school from Years 8 to 11. He then went to TAFE and sought a plumbing apprenticeship but it appears that he was not successful in obtaining one. He worked for AT’s building company as a labourer for some time but was unemployed from January 2020. I accept that the Covid-19 pandemic may have affected the applicant’s prospects of obtaining employment. The applicant had been unemployed between March 2017 and March 2019, prior to the pandemic. He has a driver’s licence.
The applicant began using cannabis around 2014 and progressed to heavy use of that drug. From around 2016, he started using other drugs, such as methamphetamines, and consuming alcohol.
In his teens, the applicant began experiencing psychotic symptoms in the form of auditory hallucinations. The hallucinations are bizarre and relate to ancient Rome, ancient Egypt, black magic and slavery, and involve the notion that black people are bad. He had reported that he regards some black people as cursed. He became preoccupied with atrocities that occurred in ancient times and started to believe that others around him were somehow involved. He began experiencing a psychosocial decline, which resulted in him being unable to establish himself in a relationship, engage in sustained study or employment, and led to the breakdown of his relationship with his brothers and a period of homelessness.
As I have already stated, the applicant suffers from drug addiction and schizophrenia, characterised by command auditory hallucinations, gross thought disorder, delusional beliefs, disorganised behaviour and aggression when unwell.
Around late 2020, the applicant’s brother, AT, obtained a family violence intervention order (‘FVIO’) against him. The circumstances that led to the issuing of the FVIO are summarised at [‎46] below. Until the issue of the FVIO, AT was one of the main community supports for the applicant, by helping him with accommodation, providing him with some work and taking him to his appointments for injectable depot antipsychotic medication. The FVIO expired in mid-2022 and was not extended.
Beginning in late 2016, the applicant has been the subject of multiple involuntary treatment orders under the Mental Health Act 2014 (Vic), which was replaced in 2023 by the Mental Health and Wellbeing Act 2022 (Vic) (‘Victorian Mental Health Act’). Some of those orders have involved care by Area Mental Health Services, while others have involved inpatient admissions in late 2016 or early 2017 at psychiatric facilities. It was reported that, during one of his inpatient admissions in late 2016 or early 2017, the applicant incorporated a co-patient into a delusional episode and assaulted that person.

Applicant’s criminal history

The applicant was first dealt with by the Dandenong Children’s Court in 2011 for three minor driving charges. No conviction was recorded and the applicant was placed on a six month good behaviour bond. As I consider that this offending is irrelevant to an assessment of whether the applicant is a danger to the Australian community, I will not make any further reference to it.
The applicant’s first conviction occurred in late 2020, when he was convicted in the Melbourne Magistrates’ Court of one charge of assault with a weapon,[19] one charge of intentional criminal damage to property,[20] one charge of assault with an instrument[21] and two charges of entering a private place without authorisation or excuse.[22] He was placed on a two-year good behaviour bond for these offences. There is no information before the Tribunal about the circumstances of these offences.
[19] Contrary to s 24(2) of the Summary Offences Act 1966 (Vic). The maximum penalty at the time of the offending was 2 years’ imprisonment.
[20] Contrary to s 197(1) of the Crimes Act 1958 (Vic). The maximum penalty at the time of the offending was 10 years’ imprisonment.
[21] Contrary to s 24(2) of the Summary Offences Act 1966 (Vic). The maximum penalty at the time of the offending was 2 years’ imprisonment.
[22] Contrary to s 9(1)(e) of the Summary Offences Act 1966 (Vic). The maximum penalty at the time of the offending was 6 months’ imprisonment.
In early 2021, in the Frankston Magistrates’ Court, the applicant was convicted of one charge of intentional criminal damage to property, one charge of refusing to leave a place after a warning[23] and one charge of committing an indictable offence while on bail.[24] He was convicted and fined $850 for these offences. The circumstances of these offences were as follows. The applicant attended his brother, AT’s, house in late 2020 and was aggressive. AT warned the applicant that he should leave the house, which the applicant refused to do (offence of refusing to leave a place after a warning). The applicant then caused damage valued at $150 to AT’s door (offence of intentional criminal damage to property). He was on bail at the time (offence of committing an indictable offence while on bail). A FVIO was issued preventing the applicant from having any further contact with AT.
[23] Contrary to s 9(1)(f) of the Summary Offences Act 1966 (Vic). The maximum penalty at the time of the offending was 6 months’ imprisonment.
[24] Contrary to s 30B of the Bail Act 1977 (Vic). The maximum penalty at the time of the offending was 3 months’ imprisonment.
In late 2021, in the County Court of Victoria, the applicant was sentenced to an aggregate of 12 months’ imprisonment with a 6 month non-parole period for the charges listed below, except for the charge of possessing cannabis; that charge was found proven but it was dismissed under s 76 of the Sentencing Act 1991 (Vic):[25]
[25] As stated at [‎3] above, the applicant pleaded guilty to the charges listed at [‎47] in the Dandenong Magistrates’ Court and, after being sentenced by that Court, he appealed against the sentences to the County Court.
(a)one charge of intentional criminal damage to property;
(b)one charge of intentionally causing injury;[26]
(c)one charge of affray;[27]
(d)one charge of attempting to commit an indictable offence (robbery);[28]
(e)two charges of possessing a controlled weapon without an excuse;[29]
(f)two charges of committing an indictable offence while on bail;
(g)one charge of failing to answer bail;[30]
(h)one charge of possessing cannabis;[31]
(i)one charge of recklessly causing injury;[32] and
(j)one charge of assaulting an emergency worker on duty.[33]
[26] Contrary to s 18 of the Crimes Act 1958 (Vic). The maximum penalty at the time of the offending was 10 years’ imprisonment.
[27] Contrary to s 195H(1) of the Crimes Act 1958 (Vic). The maximum penalty at the time of the offending was 5 years’ imprisonment.
[28] Contrary to ss 75, 321M of the Crimes Act 1958 (Vic). The maximum penalty at the time of the offending was 15 years’ imprisonment.
[29] Contrary to s 6(1) of the Control of Weapons Act 1990 (Vic). The maximum penalty at the time of the offending was 1 year imprisonment.
[30] Contrary to s 30(1) of the Bail Act 1977 (Vic). The maximum penalty at the time of the offending was 2 years’ imprisonment.
[31] Contrary to s 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The maximum penalty at the time of the offending was 1 year imprisonment.
[32] Contrary to s 18 of the Crimes Act 1958 (Vic). The maximum penalty at the time of the offending was 5 years’ imprisonment.
[33] Contrary to s 51(2) of the Summary Offences Act 1966 (Vic). The maximum penalty at the time of the offending was 6 months’ imprisonment.

The intentional criminal damage to property offence was committed in early 2020, when the applicant caused damage valued at $250 to a wall. When using a publicly available computer terminal in a shop, the applicant had difficulty logging into his Centrelink account. He became frustrated and damaged the wall under the computer terminal by kicking the wall multiple times.
The offence of intentionally causing injury involved the applicant causing injury to CC in late 2020 in the following circumstances. The applicant approached CC outside a hotel and a verbal altercation took place. The applicant then produced a knife which he had concealed in the front of his pants and used it to stab CC in the abdomen. CC was conveyed to a hospital in a stable condition. One of the two charges of possession a controlled weapon without a lawful excuse was constituted by the possession of the knife. The applicant had been smoking methamphetamines the day before and was unable to sleep. He believed that CC was a gang member in Pakistan who was ‘after him’. CC was in fact unknown to the applicant. This incident also involved the offence of affray, although it is not clear precisely what facts constituted that offence.
The offences of attempting to commit an indictable offence (robbery), the second offence of possession of a controlled weapon without a lawful excuse and one of the offences of committing an indictable offence while on bail occurred in early 2021. The applicant approached the victim DD at a petrol station and told him to hand over the keys to DD’s car, otherwise he would stab DD. This constituted the offence of attempting to commit an indictable offence (robbery). When DD retreated inside the store of the petrol station, the applicant approached another person, who was in their car at the time, kicked the passenger door and produced a knife. That person then drove away. The possession of the knife constituted the second offence of possession of a controlled weapon without a lawful excuse. The applicant then walked away from the petrol station and was arrested. He was on bail at the time he committed the offences described in this paragraph.
The applicant’s failure to answer bail occurred in April 2021. It appears that he was granted bail several weeks earlier. There was no further information before the Tribunal about the circumstances of this offence.
A few months into 2021, the applicant was arrested in the carpark of a supermarket following a complaint from a member of the public about drug use in the carpark. The applicant was searched and a small amount of green vegetable matter was found in his jacket pocket. He was charged with possession of cannabis on that day.
A week or so after the applicant was charged with possession of cannabis, EE, who was unknown to the applicant, was entering a pharmacy when, without prior warning or provocation, the applicant ran towards EE and attempted to stab him with the sharp end of a steel rod. The applicant continued to kick EE and hit him with the rod for about 30 seconds, causing EE to bleed from his head. This constituted the offence of recklessly causing injury. The applicant was arrested later that day and taken to a police station, where he was placed in a cell. The applicant spat at a police custody officer through the door flap in the cell. This constituted the offence of assaulting an emergency worker on duty. The applicant was on bail at the time of the offending, and was thus charged with committing an indictable offence while on bail.
On one occasion while he was in immigration detention, the applicant was watching a documentary with fellow detainees about Siberian and Austrian empires. He was affected by methamphetamines and was hearing voices. He informed Dr Nina Zimmerman, a consultant forensic psychiatrist, that the voices told him that one of the detainees was the oppressor in the Empire and, as a result, he poured boiling water on that detainee. No serious injury was caused. In his evidence, the applicant agreed that this incident had occurred. However, he described the water as ‘hot’ rather than ‘boiling’. Because the applicant’s evidence is direct evidence based upon his recollection whereas Dr Zimmerman’s report can be said to contain a prior inconsistent statement by the applicant, I will proceed on the basis most favourable to the applicant, namely, that the water was hot rather than boiling.
There can be little doubt that the applicant’s mental illness has contributed to his offending and antisocial behaviour, and that his drug use has exacerbated his mental illness. That is the view expressed by Dr Zimmerman in her report, which I will discuss later in these reasons. I also note that the Magistrate who sentenced the applicant at first instance for the offences set out at [‎47] above stated that it was ‘clear [that the applicant’s] mental health has contributed to [his] offending’.

Applicant’s migration history and antisocial behaviour in the community

As I have already stated, the applicant arrived in Australia as a dependent applicant on a provisional partner visa and was subsequently granted a migrant partner visa.
Due to his conviction for the offences referred to at [‎47] above for which he was sentenced to an aggregate of 12 months’ imprisonment, the applicant’s visa was cancelled under s 501(3A) of the Act in October 2021. He was transferred to immigration detention at the conclusion of his term of imprisonment in early 2022.
In August 2022, the applicant applied to the Tribunal for a review of the Delegate’s decision.
On about 26 December 2022, following the decision of the Full Court of the Federal Court in Pearson v Minister for Home Affairs,[34] the applicant’s visa was reinstated and he was released from immigration detention. On 27 January 2023, he withdrew his application for review at the Tribunal. On about 17 February 2023, following the commencement of the Migration Amendment (Aggregate Sentences) Act 2023, his visa cancellation was reinstated and he was placed back in immigration detention. I will refer to the period between about 26 December 2022 and about 17 February 2023 as ‘the first period of release’. The applicant’s application for review at the Tribunal was reinstated on 29 March 2023.
[34] (2022) 295 FCR 177.
In February 2023, prior to the applicant being placed back in immigration detention, he relapsed and began using cannabis and methamphetamines. As a result, his mental health declined, he became psychotic and started hearing voices and thinking about the Roman Empire. During his interview by Dr Zimmerman, he told her the following about an incident in which he saw a young woman who he did not know, FF, on public transport. He described her as a ‘Jewish Israeli girl’, and asked for her name and phone number. He then asked FF to marry him. He kept on asking her questions and following her on the train. At the time, he was hearing voices which told him that Jewish people were generals that ruled the Roman army. Another female passenger intervened and told the applicant to leave FF alone and get off the train, otherwise the police would be called. When the applicant disembarked from the train, he approached police and they ‘let [him] off with a warning’.
The applicant also told Dr Zimmerman about a separate occasion, during which he saw a different woman, GG, in a hotel and told her that he wanted her to be his lady. This prompted the hotel manager to call the police about the applicant’s conduct. As with FF, GG was unknown to the applicant. The applicant was affected by methamphetamines when he approached GG.
Events after the conclusion of the hearing of the application for review are discussed below under the heading ‘Events after the hearing concluded’.

‘DANGER TO THE AUSTRALIAN COMMUNITY’ – RELEVANT LEGISLATION

Some provisions of the Victorian Mental Health Act are relevant to the issue of whether the applicant is a danger to the Australian community.[35]
[35] Paragraphs [‎64]–[‎66] repeat WKBF [2023] AATA 3728, [182], [186] and [187].
Section 143 of the Victorian Mental Health Act sets out the criteria that must be satisfied for a person to be made subject to a treatment order. A treatment order may be a 28 day temporary treatment order (which can be either a community temporary treatment order or an inpatient temporary treatment order)[36] or a non-temporary treatment order (which can be either a community treatment order or an inpatient treatment order). An inpatient treatment order (whether temporary or non-temporary) authorises the detention of the patient in a designated mental health service for the purpose of treatment.[37] Section 143 provides as follows:
[36] Victorian Mental Health Act, s 181(1), 182, 183.
[37] Victorian Mental Health Act, s 182(3).
143        Compulsory treatment criteria
The compulsory treatment criteria for a person to be made subject to a temporary treatment order or treatment order are that—
(a)         the person has mental illness; and
(b)because the person has mental illness, the person needs immediate treatment to prevent—
(i)        serious deterioration in the person’s mental or physical health; or
(ii)       serious harm to the person or to another person; and
(c)if the person is made subject to a temporary treatment order or treatment order, the immediate treatment will be provided to the person; and
(d)there are no less restrictive means reasonably available to enable the person to receive the immediate treatment.
Section 193 of the Victorian Mental Health Act provides that, for a person over 18 years of age, the period of a treatment order made by the Victorian Mental Health Tribunal (‘MHT’) must not exceed 6 months. However, the treatment order can be extended from time to time.
Sections 194 and 195 of the Victorian Mental Health Act relevantly state:
194Community or inpatient treatment order
(1)The [MHT] must determine whether a treatment order is—
(a)a community treatment order; or
(b)subject to subsection (2), an inpatient treatment order.
(2)The [MHT] must not make an inpatient treatment order in respect of a person unless the [MHT] is satisfied that the person cannot be treated in the community.
195What does a treatment order authorise?
(1)A treatment order authorises compulsory treatment to be given to the treatment patient.
(2)A community treatment order enables the treatment patient to be treated in the community.
(3)An inpatient treatment order authorises the detention of the treatment patient for the purpose of transporting the patient to the responsible designated mental health service and the detention of the patient for the purpose of providing treatment to the patient at the service under the order.

‘DANGER TO THE AUSTRALIAN COMMUNITY’ – EVIDENCE AT THE HEARING

The applicant called two witnesses to give oral evidence: himself and Dr Nina Zimmerman, a consultant forensic psychiatrist. The respondent cross-examined each witness. The Tribunal arranged an interpreter in the Dari language for the applicant. However, with the concurrence of his lawyer, the applicant expressed a preference to give evidence directly in the English language, with the interpreter being called upon to assist him when he felt he required assistance. He gave evidence on this basis, only occasionally seeking assistance from the interpreter.
In the course of giving evidence-in-chief on the first day of the hearing on 1 November 2023, the applicant stated that, if he is released into the community, he will work either for his brother (AT) or in a café. The respondent’s lawyer indicated to the Tribunal that he would not object to an adjournment of the hearing to facilitate the applicant calling AT as a witness if the applicant wished to do so. The applicant’s lawyer stated that inquiries would be made of AT overnight.
On the second day of the hearing on 2 November 2023, the applicant’s lawyer advised the Tribunal that contact had been made with AT, who was willing to provide a statement and give evidence at an adjourned hearing. On this basis, the further hearing was adjourned until 21 November 2023. The day prior to the adjourned hearing, the applicant’s lawyer advised the Tribunal that AT would not be providing a statement or attending to give evidence. At the adjourned hearing, the applicant’s lawyer stated that one of the reasons AT was not called was a reluctance on his part to provide oral evidence or a written statement. The applicant’s lawyer also stated that it was difficult to get in contact with AT.
The respondent did not call any witnesses.
Both parties relied upon a number of documents that have been filed with the Tribunal. I have read all those documents. In relation to the health and other records generated by the immigration detention authorities, it is noteworthy that many of them state that the applicant was compliant with his medication, had a positive attitude and was cooperative. Some of the records note that the applicant stated that he felt well, did not hear voices, wanted to stay away from drugs, and enquired about reducing or ‘coming off’ his medication due to side effects such as jaw stiffness. Other records refer to instances of the applicant stating that he had heard voices and of him refusing to take some of his medication.
After the conclusion of the hearing, the applicant sought to rely upon additional material of a factual nature. This material is discussed below under the heading ‘Events after the hearing concluded’.

Evidence of the applicant

The applicant signed a statutory declaration dated 27 January 2022 and two statements dated 8 April 2022 and 28 September 2023, respectively. As I have already stated, he gave oral evidence and was cross-examined.

Applicant’s statutory declaration and statements

In his January 2022 statutory declaration, the applicant stated that he had worked hard to get back to a place where he feels mentally healthy and like himself. Without the help that he gets in Australia, he fears that he would start to hear voices again and become sick.
In his April 2022 statement, the applicant stated that, when he came to Australia, he started to hear voices, which told him things about other people and that he used to think the voices were true. He was afraid to talk about the voices and could not tell anyone that he was hearing them. However, as of the date of his statement, his mental health was good.
In his April 2022 statement, the applicant described beginning to use drugs in around 2014–2015 in order to not be scared of the voices, and to numb himself. He stated that ‘I understand now that drugs made the voices worse [but at] the time, I couldn’t see that.’ He left AT’s home because the voices were getting worse and he began sharing houses with other people and was homeless on occasion. He got into harder drugs when the voices got worse. In late 2020, he tried to return to his family but could not understand why his family would not let him in, so he became aggressive. He now understands that he was really sick then and his family did not know how to help him. He does not remember much about being violent, but remembers thinking that there was something about the voices telling him to be chasing people, and of him being aggressive because he thought the people he hurt were ancient Romans or Egyptians. He remembers feeling that the voices were controlling him. He now feels really bad for the people that he hurt and wishes he could change what he did.
In his April 2022 statement, the applicant stated:
Prison was bad but it got me to doctors and nurses who could help me. It gave me time to clean myself. But I wish I could take care of myself in the first place.
I struggled a lot when I first went to prison. I now know I was psychotic but I didn't understand what was going on. I thought the prison guards were against me. I was aggressive to the guards because I thought I was doing the right thing to protect myself. I regret that. I didn't understand what jail was for and I didn't know what I could use it for and I was angry.
Now that I am doing better I can see that time was important for me to get stable. I am seeing a counsellor, doctors, and working with a mental health service. Prison was the first place to have people who understood. It has been very helpful to have the support of doctors. I can ask the doctors whether what I was hearing was true. I didn't realise that I had stories in my head that weren't true because I was so used to it.
I am learning more about my mental health and how to stay stable. I know now if I start to hear voices, I can go to get support from doctors and family. I'm able to talk to other people about my problems and not keep it to myself. If I'm talking about what I'm feeling, I can stay around the right people. I don't want to be around people who are messing with drugs; I know that that won't help.
I want to be working and supporting myself. I know I will need help to keep my mental health stable and am working with my counsellors. I want to be taking care of myself by making sure I have good people around me.
…
I feel really bad for my offending. I understand it now but it doesn't make it right. I am doing everything I can and work with my doctors to keep my mental health stable. Because I am stable, I can stay away from drugs.
…
I realise that I was unstable and offended and that's why I'm here. Being in prison was bad but it got me stable. Being in detention is really hard and I fear that I won't have access to all the support I need. I hope to work and be a part of the community and help myself: at the same time I hope to be able to turn to my doctor when I need.
…
I want to make the right choices to look after my future and my life. I don't want to be using drugs and hearing voices again. I am going to work with my doctors to stay stable and I am ready to do the right thing.
The applicant’s September 2023 statement is similar in many respects to his April 2022 statement. In the September 2023 statement, he relevantly said the following about his remorse, insight into his mental illness and drug taking, their causal connection to his past offending, and the incentive to not offend again arising from the prospect of indefinite detention:
I am very remorseful for my actions. I understand the consequences of my actions and the impact that I have had on my victims and the community. I believe that I have learnt my lesson.
I understand that my mental health and drug use was the context for my offending, as well as the sexual assault from when I was a child. At that time, I did not know how to ask for help with my mental illness. Now, I know that it is important that I continue to have treatment for my mental health and take medication for my Schizophrenia. I will continue my treatment in the community. I also know that it is important that I reach out for help and support when I need it.
I am no longer using drugs. I do not want to use drugs again because I understand the negative impact that they have on me.
I know that it is important to obey the laws in Australia … I am committed to doing the right thing in the community in following the law ….
I understand that if I commit any further criminal offences in Australia, including if I do not correctly manage my mental health, that I will not be given another chance to remain in the community and keep my visa. Having been in immigration detention, I do not want to come back to this place. I know that I would have to stay in immigration detention for a long period of time, or indefinitely, because I cannot be returned to Afghanistan.
…
I know that I will need to continue to receive treatment and support for my conditions to be able to manage my mental health.
I have sought the help of mental health nurses and psychiatrists in prison and in the detention centre. They have helped me to understand my mental health condition and allowed me to realise when I need to reach out for help and support. I know that I will also require ongoing treatment for the rest of my life because of my diagnosis with Schizophrenia.
My mental health continues to be much better than it has been before. I am taking my medication and speaking to a psychologist … in the detention centre.

In his September 2023 statement, the applicant relevantly stated the following about his plans if he is released into the community:
Because I have [the following] plans, I know that it won’t be like the last time – I won’t get into trouble or misbehave.
For my accommodation, my case manager at the detention centre has told me that they will find me short-term accommodation for three months. During that time, they will help me find a job so that I can then secure longer-term accommodation. I would like for that longer-term accommodation to be located in a place that assists people like me with mental health conditions.
For my employment, I am happy to have any job that I can find. I hope to be able to work as a labourer or a tradie so that I can use my hands and be outside. I have recently obtained my White Card and I have also completed a barista course so I could work in a café if I had the opportunity. … I would also like to be able to undertake further courses to help prepare me for high duties in my work and give me more career opportunities.
When I have some money saved, I want to use that as a deposit to be able to get a small loan for a [second-hand] car. …
For my medication, I know that I must continue to take my prescribed medication to manage my mental health. I will continue to take my medication and find a local GP where I can get my prescriptions and a local pharmacy where I can fill my prescriptions.
For my mental health, I will see a local GP to be able to have a referral for a mental health care plan so that I can see a psychologist. I will also need to have the contact details for the local hospital and mental health clinic so that I can reach out to them if I need assistance and support. …
[I] would also like for my psychologist to be able to refer me to drug and alcohol rehabilitation services so that I can learn more about my mental health, my Schizophrenia diagnosis and how that contributed to my decision making where I offended. It is important that I know this so that I can avoid offending in the future.
…
If I can continue to manage my mental health, I am sure that I will continue to abstain from drugs and alcohol. I know that doing drugs and alcohol has a negative impact on my mind and my body and I do not want to do drugs again. I know that taking my medication and continuing with support services will mean that I can manage my mental health.
…
I do not have contact with my family members in Australia as we have a strained and difficult relationship. I want to be able to find my own network of friends in the community. I hope to do this by going to the gym and playing sport, like basketball or soccer, or doing boxing or mixed martial arts … where I will be able to meet positive people to make friends with.
…
I understand the consequences if I do the wrong thing again, including losing my visa and having to remain indefinitely in immigration detention. This is not a risk that I am willing to take.

Applicant’s oral evidence regarding his offending and other violent conduct

In examination-in-chief, the applicant said that, when he committed the crime of intentionally causing injury against CC, he was hallucinating on drugs and hearing voices about Roman and Egyptian history and emperors, black people, slave histories and how the world is at war with everything. He was on depot antipsychotic medication at the time, but he was not ‘using it much’ because he did not think he needed it, and he was not seeing a doctor. The night before he committed the offence, one of his Sudanese friends was assaulted by a drug dealer. He then saw some people ‘through enemy’s eyes’. The inference I draw from this evidence is that these negative thoughts prompted the applicant to injure CC.[38]
[38] It is not clear from the applicant’s evidence whether he was referring to the injury to CC or EE.
In cross-examination, the applicant admitted the accuracy of the police allegations against him in relation to the incidents where he kicked a hole in a wall, stabbed CC in the abdomen, threatened DD at a petrol station, hit EE with a steel rod and spat through a cell door at a police custody officer. He said that, at the time he approached DD, he was high, lost and feeling bad and that he spat at the police custody officer because he was mentally very sick and could not cooperate in manners and behaviour. He knew that he was on bail at the time of the offences. He was not really sure what bail was, but understood that being on bail meant that it was really important that he not commit further offences. In examination-in-chief, he said that he chose to attack EE randomly because he was hearing too many serious voices, was using drugs and his mind was complicated with too many things, including that he had witnessed a person getting beaten up that night.[39]
[39] It is not clear from the applicant’s evidence whether he was referring to the attack on EE or CC.
In cross-examination, the applicant was asked about an incident which occurred in immigration detention when he poured hot water on another detainee. He said that the incident occurred a few weeks after he returned to immigration detention. He was watching a documentary about Siberian and Austrian empires in a classroom with some other detainees. He began hearing voices about a different empire and the voices told him to hurt the other detainees, so he ended up throwing hot water on one of the other detainees. He was on his medication at that time but was still hearing voices. He had smoked methamphetamine before the incident occurred. That was the only time he smoked methamphetamine after he returned to immigration detention.

Applicant’s oral evidence regarding his rehabilitation

In examination-in-chief, the applicant stated that using methamphetamine makes his schizophrenia worse. As a result of the medical treatment he had received in immigration detention, it was clear to him that he did not need to use drugs anymore and needed to stay on his medication, as he was unstable without his medication. He had not heard voices for three months. He stated that he had used illicit substances on one occasion in immigration detention. The drug and alcohol officer told him not to smoke methamphetamine because it causes problems with sleeping and to use cannabis instead.
In re-examination, the applicant stated that, between early 2022 when he was transferred from prison to immigration detention and about 26 December 2022 when he was released into the community, he sometimes used cannabis and methamphetamine. He talked to his drug and alcohol counsellor who told him that it was good that he was using drugs because he will know what drugs will do to him when he gets out.
In examination-in-chief, the applicant stated that, in the three years that he had been in prison and immigration detention, he had been receiving drug and alcohol counselling, medication and psychiatric treatment. As part of his treatment, he received olanzapine and paracetamol every day and monthly injections of depot antipsychotic medication. The nurses would remind him when he needed to have his monthly injections. When released into the community, he will connect himself with a local doctor, who would let him know when he needed to take his medication. He would ask his case worker to help him find a local doctor. He will also ask his case worker and counsellor to help him obtain NDIS funding.
In examination-in-chief, the applicant stated that he had completed some education courses in immigration detention, and was doing things ‘every day’. This included English classes, art classes, barista courses and white card classes. The white card would enable him to work in the construction industry when released. He had undertaken drug and alcohol counselling in detention, weekly for about six or seven months, and attended a gym.
In cross-examination, the applicant stated that he had attended drug and alcohol rehabilitation classes every week for three or four months. He was then taken to the report of Dr Zimmerman, which recorded that he did not attend drug and alcohol programs because he knew the things they are saying. He stated that he had been to all of the classes but just told Dr Zimmerman that he did not feel like he needed to go. He later stated that, after seeing Dr Zimmerman, he decided that he needed to attend the programs to help himself get better.
In cross-examination, the applicant was pressed on his claim that he used cannabis once in immigration detention after his drug and alcohol counsellor told him to smoke cannabis. He stated that he was told to use cannabis instead of methamphetamine. He also admitted, as he had told Dr Zimmerman, that he had used cannabis and methamphetamine after he was returned to immigration detention, but stated that it was only on one occasion.
In response to a question from the Bench, the applicant stated that he last heard voices about two weeks prior to giving evidence on 1 November 2023. He was watching a video with a friend and ‘there was voices reflect in my head about the video, about the life, the situation I was’.[40] In re-examination, he said: ‘I hear voices sometimes on the fact of the news or in the media or the movies or the story.’[41] I have interpreted the applicant’s evidence as meaning that something he sees on television or in the media can trigger the hearing of voices.
[40] The quote is reproduced as it is in the transcript.
[41] The quote is reproduced as it is in the transcript.

Applicant’s oral evidence regarding his temporary release into the community

In examination-in-chief, the applicant stated that, when he was released from immigration detention on about 26 December 2022, he and other detainees were provided with two months’ accommodation in a hotel, and a job search appointment was organised for him. He was given $360 and subsequently received Centrelink payments of $560–$600 per fortnight. He did not see a GP because he did not have a Medicare card. In re-examination, he stated that he was only given one hour’s prior notice that he would be released. He was released with $360, two weeks of medication and his possessions. He did not have the opportunity to speak to a medical practitioner and had no opportunity to get any mental health support while he was released.
In examination-in-chief, the applicant stated that after his medication ran out two weeks following his release from immigration detention on about 26 December 2022, he smoked methamphetamine. He did so because the other people with whom he was spending time were smoking methamphetamine and he started smoking that drug with them. If he is released again, he would not do the same thing because he does not need to prove himself to anyone who is using drugs, and he needs to show his value to the community.
In cross-examination, the applicant stated that he started using drugs a month after his release into the community and that, when he was offered the drugs, he could not say no because he had an addiction. He accepted that his compliance with medication while he was in the community was ‘patchy’.
In cross-examination, the applicant admitted that he asked a young woman on a train (FF) to marry him. He said that the reason he had done so was because voices in his head told him that the next person he would see would be a Jewish general that ruled the Roman army. He said that he asked her to marry him because he was a lonely person and thought that he needed a girlfriend to be happy. He accepted that asking somebody to marry him on the first occasion that they met was an unusual thing to do and would have been quite frightening for the woman. He had taken methamphetamine the day before he was on the train.
In cross-examination, the applicant was asked about another occasion during the period of his release in the community, when he told a woman at the hotel at which he was staying (GG) that he wanted her to ‘be his lady’. He said that he was outside his hotel room when he saw a female guest at the hotel. He decided he wanted to talk to her and see if ‘something will happen’. She told him not to talk to her, otherwise she would call the police. He had never met her previously and was affected by methamphetamine at the time.

Applicant’s oral evidence regarding his plans to avoid further offending

In cross-examination, the applicant was taken to a statement he had made to Dr Zimmerman, that in order to never offend again he would ‘just stay at home and watch TV and not go out’.[42] He accepted that in order to work, he would need to leave his home.
[42] See [‎129] below.
In examination-in-chief, the applicant stated that, when he was previously on ‘mental health orders’[43] he complied with them and they helped him to control his schizophrenia and ensure he was compliant with his medication. If he were released into the community, he would consider going back on a mental health order. When he is released, he will make sure he got a good place to stay, take his medication, and see nurses and mental health professionals in order to ensure that he does not reoffend. He would also like to find a job and purchase a car to get to work and attend medical appointments. He understands the effect that hearing voices and taking drugs can have on his mental health and he does not want to be in that position again.
[43] I take this to be a reference to treatment orders made under the Victorian Mental Health Act.
In examination-in-chief, the applicant stated that, if he were released again, the most important thing would be to look after his medication and have a place to stay where he would be able to be stable and not use drugs. He now has a Medicare card and was previously able to fill out all the paperwork to receive Centrelink payments. When he is released, one of the first things he will do will be to see his doctor and get his medication. He would continue seeing counsellors and other professionals because he did not want to relapse onto drugs. He will undertake a mental health course, attend a gym and study online.
In examination-in-chief, the applicant stated that a case worker from Australian Border Force (‘ABF’) had told him that they will provide him with assistance for three months in order to help him obtain documents, accommodation and employment and help him connect with a doctor so that he can obtain his medication. At the end of the three month period, he would make sure that he would have a place to go, was connected with medical professionals and would have his medication. He knew that obtaining Centrelink payments, or employment was important to pay for his bills and accommodation in order to ensure that he did not become homeless again. He would either work for his brother’s (AT’s) building trades company or in hospitality. He has worked in the building industry previously.
In re-examination, the applicant stated that he would not take drugs in the community and if they were offered, he would just walk away. He has talked to a psychiatrist and counsellors who have warned him about the harm that use of methamphetamine can cause.
In cross-examination, the applicant was taken to his April 2022 statement, in which he had expressed: an understanding of how drug use exacerbated his mental illness; an intention to seek accommodation, employment and education, take his medication, access mental health treatment and make connections through sport and a gym; an intention to stay stable and seek medical support for his mental illness if he were released; and a desire to stay away from drugs. In the statement, the applicant said that because he was stable, he could stay away from drugs.[44] In cross-examination, the applicant accepted that a lot of the matters mentioned in the April 2022 statement were similar to the matters mentioned in his September 2023 statement. He accepted that he was unable to stay off drugs during the first period of release into the community but said that he has made it clear to himself not to go down that direction again next time he is released.
[44] See [‎77] above.
In cross-examination, the applicant stated that he has missed some doses of his medication while he has been in immigration detention. He has tried to have his medication changed but his psychologist told him not to do it. He has not asked to stop taking his medication but has asked his psychiatrist how long he would be on medication and when he could stop. He had also requested that his medication be reduced. In re-examination, he said that, whenever he asked health professionals about changing or ceasing his medication, he followed the advice they gave him. In re-examination, he said that he now understands that he may need to stay on medication for the rest of his life.
In cross-examination, the applicant was taken to medical reports dated 30 June and 25 July 2022 in which he had asked medical staff on several occasions to stop his depot injection as he felt well. He agreed that he had asked to stop his depot injection at the time because he thought that his treatment for mental health would stop after 12 months. He no longer thinks that, because he knows that if he does not take his medication, he will feel drowsy and agitated. He changed his mind about stopping his medication because his psychiatrist has told him that he cannot be normal without medication.
In cross-examination, the applicant was taken to the report of Dr Zimmerman, which recorded that he wished to stop his depot antipsychotic medication. He agreed that he had said that to Dr Zimmerman, stating that he did so because he felt that the injection gave him too many side effects.

Findings on the applicant’s credibility and the reliability of his evidence

The applicant submitted that he could give reliable and credible evidence, despite having a mental health condition. He contended that, although he may have appeared rehearsed and at one stage began reading parts of his statement dated 28 September 2023, it was not uncommon for applicants to read over their statements many times prior to an important hearing. He also contended that allowance needed to be made for the fact that, during the time that he was giving evidence, he was getting more tired.
The respondent submitted that, whilst the applicant was sincere in the witness box, there were issues regarding the extent to which his plans for the future could realistically be fulfilled. I take this to mean that the respondent contended that the applicant should be found to be a credible, but not a reliable witness.
In assessing the applicant’s credibility and the reliability of his evidence, I have taken into account his mental illness and the additional difficulties faced by a person with a mental illness giving evidence in the unfamiliar environment of a Tribunal hearing. I have also taken into account the fact that, although the applicant is reasonably proficient in English, it is not his first language. Further, I have considered the fact that the applicant appeared to be getting tired towards the final stages of his evidence.
Having made appropriate allowance for the above matters, I have formed the view that there were some unsatisfactory aspects of the applicant’s evidence. Some of it appeared to be memorised and rehearsed. Some of his answers were rambling, tangential and incoherent. At one point, unprompted, he began reading from his statement dated 28 September 2023. He also stated that he had ‘memorised [some answers] in [his] head’.
Parts of the applicant’s evidence were contradictory. For example, in examination-in-chief, he stated that he had not heard voices for three months whereas, in response to a question from the Bench, he stated that he last heard voices about two weeks prior to giving evidence on 1 November 2023. By way of further example, he gave evidence during examination-in-chief that, while in immigration detention, he had attended drug and alcohol counselling every week. In cross-examination, he was taken to Dr Zimmerman’s report where she recorded that he had told her that he did not attend drug and alcohol counselling because he already knew what he would be told at those sessions. In response, he stated that, since being examined by Dr Zimmerman, he had changed his mind and had attended drug and alcohol counselling.

The absence of any details regarding the nature of the applicant’s current accommodation is highly significant because Dr Zimmerman repeatedly stated in her evidence that the applicant would be at risk of reoffending if he lived on his own, and that an important element of reducing the risk of reoffending was the applicant living in supported accommodation.[67] Dr Zimmerman stated that she did not believe that the applicant should be treated as a voluntary patient in the community and that he requires intensive case management, including regular mental state review until a sustained period of stability is achieved.[68]
[67] See [‎116], [‎130]–[‎131], [‎141]–[‎142].
[68] See [‎142] above.
The absence of any details in the statements on instruction regarding the nature of the applicant’s medical treatment is also highly significant because Dr Zimmerman, in her evidence, emphasised that another important element of reducing the risk of the applicant reoffending was that he be under medical supervision. She stated that supervision should ideally be in the form of a compulsory treatment order and, at the very least, the applicant should be linked up with an Area Mental Health Service. She stated that without such supervision, there was a risk that the applicant would cease taking his medication.[69] There is no indication that the applicant is subject to a compulsory treatment order or is linked up with an Area Mental Health Service. I will discuss the issue of a compulsory treatment order further below.
[69] See [‎122], [‎130]–[‎133], [‎135], [‎141]–[‎142] above. As set out at [‎135] above, Dr Zimmerman stated that seeing an Area Mental Health Service would be ‘absolutely crucial’ to a successful discharge of the applicant from immigration detention.
Further, the absence of any details in the statements on instruction regarding the medication the applicant is taking and the form in which he is taking it is highly relevant. That is because Dr Zimmerman gave evidence that all the applicant’s medication should be given purely by a depot injection, as she was not confident that he would take oral medication.[70]
[70] See [‎132] above.
It follows from the above discussion that a key deficiency in the statements on instruction and the applicant’s supplementary written submissions is that they fail to address the factors which Dr Zimmerman repeatedly stated in her evidence were necessary to reduce the risk of the applicant reoffending. In this regard, it will be recalled that, in response to my associate’s enquiry as to whether the parties wished to make further submissions or adduce further evidence, the applicant’s lawyers stated only that they had a short submission to make.
As discussed at [‎141] above, in her report, Dr Zimmerman stated that there are three crucial areas that needed to be addressed in order to reduce the risk of the applicant reoffending. First, he needs ongoing case management and follow up by a public psychiatric service as a compulsory patient on depot medication in the community. Secondly, he needs to be engaged in a drug and alcohol rehabilitation program, which can be provided by an Area Mental Health Service. Thirdly, he needs stable accommodation that is tailored for people with mental illness. Dr Zimmerman added that an NDIS package would be able to provide supportive community links. The statements on instruction and the applicant’s supplementary written submissions do not deal with these three ‘crucial areas’ or an NDIS package. As appears from [‎152] above, the applicant’s submissions at the hearing recognised the importance of a compulsory treatment order, supported accommodation and the arrangement of an NDIS package to address the risk of reoffending.
Due to the abovementioned deficiencies in the statements on instruction and the applicant’s supplementary written submissions, I find that the risks of reoffending identified by Dr Zimmerman have not been adequately addressed by the applicant. This finding is significant because the applicant’s history suggests that compliance with medication is not sufficient to ameliorate the risk of reoffending. It will be recalled that, while the applicant was in immigration detention and compliant with his medication and attending counselling, he took drugs, had delusional thoughts involving another detainee and sought to harm the other detainee by throwing hot water on him. This instance indicates that, even when the applicant was compliant with his medication and had insight into the effects of taking illicit drugs, he was unable to resist taking illicit drugs, with the consequence that he engaged in harmful conduct towards a fellow detainee. As stated by Dr Zimmerman, even in circumstances where the applicant was compliant with his current medication regime, there remained a residual risk of violence.[71]
[71] See [‎125], [‎141] above.
Further, during the first period of release into the community, the applicant relapsed into drug taking despite accommodation being provided for him, and engaged in disinhibited antisocial conduct towards two women (FF and GG). As stated by Dr Zimmerman, disinhibited behaviour can lead to reoffending.[72]
[72] See [‎126] above.
It is true that the applicant gave evidence that, if he is released into the community in the future, he will not associate with people taking drugs and will walk away if he is offered any drugs. As I have stated earlier, I do not doubt that the applicant’s evidence about his intended conduct was sincere. The statements on instruction say that the applicant ‘will continue to obey the law’ and that he has remained ‘incident free’ between 15 December 2023 and 19 January 2024. However, the statements on instruction do not say that the applicant has abstained from taking drugs and associating with people taking drugs during that period. In any event, for the reasons I have previously given, the applicant’s conduct during his time in immigration detention and the first period of release into the community did not match his professed intentions in his 8 April 2022 statement. For the reasons discussed below, because of this fact, the dearth of detail regarding the applicant’s current arrangements in the community and the failure of the statements on instruction to deal with crucial aspects of Dr Zimmerman’s evidence as to mitigation of risk of reoffending by the applicant, I am not satisfied that he will be able to continue to obey the law or remain ‘incident free’ in the community.
In relation to [‎201(f)] above, I accept that, at a conceptual level, the applicant is aware that, if while he is living in the community he reoffends or otherwise breaches the conditions of his Bridging Visa E, that visa may be cancelled and replaced by a Bridging Visa R or he may be returned to immigration detention, and that he believes that the prospect of either of these events occurring will act as a deterrent to future offending. However, as with the applicant’s other conceptual understandings to which I have already referred, I am not satisfied that it will act as a sufficient deterrent to prevent relapse into drug use, exacerbation of his mental illness and commission of further violent offences. I accept Dr Zimmerman’s evidence that, although knowledge of the risk of further immigration detention is capable of motivating the applicant not to reoffend, if he becomes unwell and starts hallucinating, such knowledge would not prevent reoffending.[73] It follows that I reject the applicant’s submissions summarised at [‎154] and [‎188] above.
[73] See [‎143] above.
As I have already stated, Dr Zimmerman expressed the opinion that if the applicant were released into the community unsupported and left to his own devices, he would present a moderate risk of violent conduct.[74] She stated that that risk would be lower if the applicant receives supports upon release. However, she did not say that, in that event, the risk of the applicant engaging in violent conduct would cease to be moderate. Indeed, Dr Zimmerman expressed some doubt about the efficacy of some of the applicant’s plans to avoid reoffending if he were released into the community. In my opinion, given the applicant’s previous propensity to carry a knife, a moderate risk of violent conduct translates into an unacceptable risk that he will cause serious injuries upon individuals he encounters and thus pose a danger to the Australian community. It follows that I reject the applicant’s submission summarised at [‎149] above.
[74] See [‎137] above.
In her evidence, Dr Zimmerman stated that the applicant was a clear-cut candidate for a compulsory treatment order. The applicant’s submissions at the hearing recognised the importance of a compulsory treatment order in addressing the risk of reoffending. The applicant also gave evidence that he would consider being subject to a ‘mental health order’, without identifying the nature of such an order. In this regard, I accept Dr Zimmerman’s evidence that the applicant should not be treated as a voluntary patient in the community and that he requires intensive care management.[75]
[75] See [‎142] above.
The evidence suggests that, if the applicant were to be subject to a compulsory treatment order, his compliance with his medication would improve and the risk of reoffending would be reduced.[76] However, there are two key difficulties with the applicant’s reliance in his submissions at the hearing upon such an order in support of his contention that he is not a danger to the Australian community.
[76] See [‎131]–[‎133] above.
First, there was no evidence at the hearing about any enquiries being made about the imposition of a compulsory treatment order or the likelihood that the applicant would become subject to one either at the time of his release from immigration detention or shortly afterwards. Likewise, the statements on instruction do not state that the applicant is subject to a compulsory treatment order or that any enquiries have been made about the making of such an order. It would be speculative to conclude that such an order will be made. I note that the applicant has not been subject to such an order for several years.
Secondly, even if a compulsory treatment order is made and the applicant is compliant with his medication and attends counselling, the incident with the hot water indicates that the taking of medication and attendance at counselling will not ensure that he will not have delusional thoughts and harm someone. I also note that, despite taking his medication and attending counselling sessions, about two weeks prior to the first day of the hearing on 1 November 2023, the applicant heard voices when he was watching a video with a friend.[77]
[77] See [‎89] above.
It follows that the possibility of the applicant being made subject to a compulsory treatment order does not alter my analysis concerning the risk of the applicant causing harm to others.
I will now consider the factors listed in WKCG in the light of the above findings on the evidence.
In the past, the applicant’s delusional beliefs arising from his mental illness have resulted in him engaging in violent criminal conduct. The most serious of the applicant’s offences – particularly the index offences of intentionally causing injury and recklessly causing injury – were of a grave and concerning nature. Two of the offences involved unprovoked attacks with dangerous weapons upon innocent members of the community who were going about their daily activities and who had no connection with the applicant. In one instance, the applicant threatened to stab a stranger at a petrol station.
The applicant’s serious offending extended over a relatively short period of about 14 months, between early 2020 and early 2021, and the only term of imprisonment that was imposed upon him was a relatively short aggregate period of 12 months. However, it is of concern that the most serious offences were committed very recently and some of them involved dangerous weapons, with the potential to cause very serious injuries.
Whilst there were mitigating circumstances present for sentencing purposes – including the applicant’s mental illness and his disadvantaged upbringing – those circumstances did not mitigate the risk of reoffending; in fact his mental illness causally contributed to some of the offences. Insofar as some of the offences – such as recklessly causing injury[78] and intentional criminal damage to property[79] – were committed while the applicant was on bail, that was an aggravating circumstance.
[78] See [‎53] above.
[79] See [‎46] above.
The factor in WKCG of ‘[t]he risk of re-offending and recidivism and the likelihood of relapsing into crime’ must be considered in the light of my discussion above of:
(a)the applicant’s plans for his living arrangements and engagement with protective factors to avoid reoffending after his release from immigration detention;
(b)the aspects of those plans that are not mentioned in the statements on instruction; and
(c)the failure of the statements on instruction to address key aspects of Dr Zimmerman’s evidence concerning the steps to be taken to reduce the risk of reoffending.
It appears from the statements on instruction that, between 15 December 2023 and 19 January 2024, the applicant secured accommodation and employment and continued to access medical treatment and take his medication. However, for the reasons already discussed, even with stable accommodation and compliance with medication, based upon his past conduct, there is a significant risk that the applicant will relapse into drug taking, have delusional thoughts about people he encounters and act in a harmful manner towards them. Depending upon the nature of the applicant’s delusional thoughts and whether he is carrying a weapon, there is a significant risk that he will commit a violent offence which inflicts serious injuries upon people he incorporates into his delusional thoughts. It follows that I reject the applicant’s submission summarised at [‎149] above.
It is true that, during the first period of release, the applicant was not charged with or convicted of any offence. However, his disinhibited antisocial behaviour towards FF was linked to his delusional beliefs caused by his mental illness, in that he thought she was a ‘Jewish-Israeli girl’ and that Jewish people were generals in the Roman army. Although his disinhibited antisocial behaviour towards GG was not expressly linked to his mental illness, in both cases, the applicant’s behaviour gave rise to sufficient concern for the safety of FF and GG to result in police involvement. It was fortunate that the applicant did not engage in violent criminal conduct during his interaction with FF and GG. However, I note Dr Zimmerman’s evidence, which I accept, that disinhibited behaviour can lead to reoffending.[80] Based upon that evidence, I am of the view that there was a significant risk that, if the applicant had remained in the community for a longer period with access to illicit drugs and without proper medical treatment, he may have experienced delusional beliefs which may have resulted in violent criminal conduct which caused very serious injuries upon the victims.
[80] See [‎126] above.
As discussed at [‎137] above, Dr Zimmerman expressed the opinion that the applicant posed a moderate risk of violence to members of the Australian community – by assaulting a stranger whom he had incorporated into his delusional beliefs – if he were to find himself homeless, relapse onto drug use and experience an exacerbation in his psychotic symptoms. She went on to say that ‘there’s a significant risk of future violence offending.’[81] I am of the view that Dr Zimmerman’s opinion is soundly based on the evidence and accept it without hesitation.
[81] See [‎139] above.
The final factor listed in WKCG is ‘prospects of rehabilitation’. The applicant gave evidence that, if he is released into the community, he will aim to remain offence free in accordance with the plans to which I have already referred. The statements on instruction say that the applicant ‘will continue to obey the law’ and that he has remained ‘incident free’ between 15 December 2023 and 19 January 2024. I am prepared to treat the evidence about the applicant’s time in immigration detention in the manner most favourable to the applicant, namely, that he: is remorseful for his crimes and antisocial behaviour; regularly attended counselling sessions; and regularly took his medication. However, despite the evidence being viewed in this manner, even in the controlled environment of immigration detention the applicant could not overcome the urge to take illicit drugs. He found ways to use them, which triggered his delusional beliefs and which, in turn, caused him to act violently towards a fellow detainee by throwing hot water on him. Also, despite taking his medication and attending counselling sessions, about two weeks prior to the first day of the hearing on 1 November 2023, the applicant heard voices when he was watching a video with a friend.[82]
[82] See [‎89] above.
Based upon the statements on instruction, between 15 December 2023 and 19 January 2024, the applicant had accommodation and a job, accessed medical treatment, took his medication and had applied for Centrelink payments. However, for the reasons already discussed, those statements omit reference to important aspects of the applicant’s plans and Dr Zimmerman’s evidence about the crucial steps to be taken to reduce the risk of reoffending.
Overall, it can be concluded that, although the applicant has taken some steps towards rehabilitation, his rehabilitation is incomplete.
It follows from the above discussion that, whilst it is a relevant consideration that there has been no adverse incident during the applicant’s residence in the community between 15 December 2023 and 19 January 2024, I cannot accept the applicant’s supplementary written submission that this establishes that he is not a danger to the Australian community.
The applicant’s supplementary written submissions regarding the granting of the Bridging Visa E to him by the respondent under s 195A of the Act require me to impermissibly speculate about the respondent’s reasons for doing so. I do not know why the respondent granted such a visa to the applicant, save that, pursuant to that section, he must have been satisfied that it was in the public interest to do so. However, the notion of the public interest is very broad and I do not know upon which aspect of the public interest the respondent relied. Further, I do not know what evidence or other material the respondent relied upon in deciding to exercise his power under s 195A and the extent to which, if any, that evidence or material overlapped with the evidence or material before me.
I reject the applicant’s supplementary written submission that, in deciding to grant a Bridging Visa E to him, the respondent must have been satisfied that the applicant is not a danger to the Australian community. Under s 195A of the Act, the respondent was not required to be satisfied that the applicant was not a danger to the Australian community. Further, assuming without deciding that a Bridging Visa R could have been granted to the applicant, the fact that the respondent granted a Bridging Visa E rather than a Bridging Visa R does not necessarily mean that the respondent formed the view that the applicant is not a danger to the Australian community. If the respondent had formed the view that the applicant is not a danger to the Australian community, the respondent could have easily instructed his lawyers to concede in the present proceeding that the applicant satisfies the criterion in s 36(1C)(b) of the Act and that he is not ineligible for the grant of a protection visa pursuant to s 36(2C)(b)(ii). The respondent did not do so.

In any event, the above discussion about the respondent’s actual or potential courses of action and possible state of mind does not assist me in determining this proceeding. The respondent exercised a power available to him under s 195A of the Act. That section raises different issues – including the issue of the public interest – to the issues with which I am concerned under s 36(1C)(b). My duty is to apply the terms of that section and to determine the issue of whether the applicant is a danger to the Australian community based upon the evidence and other material before me (including the statements on instruction) and the parties’ submissions (including their supplementary written submissions) considered as a whole.
In circumstances where I have found that the applicant’s evidence is not a reliable basis for predicting his behaviour in the future[83] and there are key deficiencies in the statements on instruction,[84] the evidence of the only other witness in this case – Dr Zimmerman – assumes great significance. This is particularly so in the light of the fact that she is an expert on the risk of reoffending by individuals with a mental illness, the fact that she was called by the applicant and the fact that neither party sought to impugn her evidence. As is apparent from what I have already stated, Dr Zimmerman’s evidence supports the conclusions I have expressed above and I accept it in its entirety.
[83] See [‎110] above.
[84] See [‎209]–[‎217] above.
In WKBF, I summarised the key principle emerging from DMQ20 and SLGS as follows: a person will pose a ‘danger’ to the Australian community insofar as there is a sufficient likelihood that they will engage in conduct that visits upon others a sufficient degree of harm.[85] On the basis of my analysis and the evidence of Dr Zimmerman which supports it, I am of the opinion that, contrary to the applicant’s submissions at the hearing and his supplementary written submissions:
(a)there is a sufficient likelihood that, even if the applicant takes his medication as required, he will relapse into drug taking, have delusional thoughts and incorporate people he encounters into those delusional thoughts;
(b)when the applicant incorporates people he encounters into his delusional thoughts, there is a sufficient likelihood that he will engage in conduct that causes a sufficient degree of physical or psychological harm to those people; and
(c)accordingly, the applicant is a danger to the Australian community.
[85] See [‎25] above.

CONCLUSION

For the above reasons, I am satisfied on reasonable grounds that the applicant is a person who, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

DECISION

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the preceding 245 paragraphs are a true copy of the written reasons for the decision of The Hon Justice Kyrou, President
......................[SGD]............................
Associate
Dated: 2 February 2024
Dates of hearing:  1, 2 and 21 November 2023
Solicitor-Advocate for the Applicant:          Ms C Ford
Solicitors for the Applicant:  Carina Ford Immigration Lawyers
Solicitor-Advocate for the Respondent:     Mr O Morris
Solicitors for the Respondent:  Clayton Utz

Initials/pseudonym	Individual concerned
NJCT	The applicant.
AT	One of the applicant’s older brothers with whom the applicant lived in Australia for some time and who obtained a family violence intervention order against the applicant.
BT	The applicant’s other older brother who lives in Australia.
CC	The victim of the applicant’s intentionally causing injury offence.
DD	The person threatened by the applicant at a petrol station.
EE	The victim of the applicant’s recklessly causing injury offence.
FF	The woman who was approached by the applicant on public transport after he was released from immigration detention in December 2022.
GG	The woman who was approached by the applicant at a hotel after he was released from immigration detention in December 2022.
MHT	Victorian Mental Health Tribunal
FVIO	Family violence intervention order