PFKJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

PFKJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 172 (8 February 2022)
Division:GENERAL DIVISION
File Number(s): 2020/2634
Re:PFKJ
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:8 February 2022
Place:Sydney

The reviewable decision, being the decision of the delegate of the Minister for Home Affairs dated 8 April 2020 to refuse the applicant’s XA-866 (permanent protection) visa, is set aside.
The matter is remitted to the Minister with a direction that the applicant is not a danger to the Australian community.
.................................[SGD].......................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – protection visa refused – whether applicant is a danger to the Australian community – guardianship order – scheduled under mental health legislation – serious health issues – social isolation – decision set aside and remitted
LEGISLATION
Migration Act 1958 (Cth) ss 5, 5M, 36, 65, 499, 501, 501k
CASES
DOB18 v Minister for Home Affairs [2019] FCAFC 63
MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
SECONDARY MATERIALS
Ministerial Direction No 75 - Refusal of protection visas relying on section 36(1C) and section 36(2C)(b).
Migration Legislation Amendment Bill (No. 6) 2001, Second Reading Speech
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
8 February 2022
INTRODUCTION

Section 501K of the Migration Act 1958 (Cth) (the Migration Act) provides that the Administrative Appeals Tribunal (‘the Tribunal’) must not publish (in electronic form or otherwise), any information which may identify a person as a person who applied for a protection visa. The section was introduced in 2001 and is intended to avoid creating a protection need, or endangering the lives of family overseas.[1] Unlike the cognate provision relating to federal judicial proceedings (section 91X), the statutory restriction relates not just to the person’s name, but to ‘any information which may identify’ the applicant.
[1] See Migration Legislation Amendment Bill (No. 6) 2001, Second Reading Speech. The Speech refers also to the protection of ‘colleagues’ although this is not reflected in the statutory provision.
Subsection 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) authorises the Tribunal to make non-publication and non-disclosure orders as a matter of discretion. By contrast, section 501K is mandatory. Section 35 must therefore be read subject to the restrictions imposed by section 501K.
Section 501K applies where the review relates to a person in their capacity ‘as a person who applied for a protection visa’. It extends to any relative or other dependant of the person. The present proceedings involve the applicant ‘in his capacity as a person who applied for a protection visa’. Therefore, the Tribunal must not publish any information which may identify him, or any relative or other dependant.
Given the possibility of key word searching, such information would include citations to, or direct quotations from, reported court decisions that refer to him, whether or not such identifying information is contained in materials submitted by the parties for the purpose of determining these proceedings, and whether or not such information is already in the public domain.
BACKGROUND
Arrival in 2006
The applicant entered Australia in May 2006[2] in his mid to late twenties on a Global Special Humanitarian visa issued under the Migration Act 1958 (Cth) (the Migration Act).[3]
[2] T2/12
[3] Subclass XB202 (Global Special Humanitarian) visa
Soon after arriving in 2006, he formed a relationship with an Australian woman. He lived with her for about two years, and they had a child in 2007. He worked as a meat processor during the latter part of 2006.
In late 2006, he was diagnosed as suffering from lymphadenitis and tuberculosis (TB), and was identified as producing positive test results for HIV, the human immuno-deficiency virus, a causative agent of the acquired immune deficiency syndrome (AIDS) and other related conditions. In 2007, he received at least two notifications from the Victorian Health Department under the Health Act 1958 (Vic). In October 2007 he attended hospital and was warned by health officials of the dangers of having unprotected sex.[4]
[4] Unsigned statutory declaration: T7/117, 119.
In December 2006 and January 2007, he received further treatment for TB and was counselled about transmissibility of HIV. It appears that his partner was HIV positive, although his child was not.
In early April 2007, the applicant received a direction from the Victorian Chief Health Officer requiring him to divulge his HIV positive status to any sexual partner and to use condoms during sexual intercourse.
In late April 2007 he was served with an isolation order and detained for 28 days. The order was renewed every 28 days thereafter.[5] His detention continued through 2007, and in late December the Chief Health Officer made a further isolation order, which resulted in his further detention in a hospital where he was isolated in an empty ward with one nurse and two security guards. He had no visitors and was always supervised. He was held under those circumstances until March 2008 when he was moved into a house in Melbourne chosen by the Department of Health, again under an isolation order. He was under strict supervision and monitored by video surveillance. A further isolation order was made in May 2008 under which he was allowed five minutes a day without supervision. He could not attend for job interviews or do any study without supervision. In June 2008 the terms of his supervision were gradually relaxed, and he could leave the premises for up to four hours a day. He was compliant with this regime.
[5] The order was made under Health Act 1958 (Vic), section 121.
The means by which his HIV status became known to law enforcement are not apparent on the materials before the Tribunal, but in 2008 he was charged with two counts of reckless conduct endangering persons, namely engaging in unprotected sexual intercourse with a woman whilst the applicant was aware that he was HIV-positive.[6] The two counts related to the same woman on the same evening.
[6] The applicant was not charged with the then available but now repealed HIV specific offence (Crimes Act 1958 (Vic), section19A). The offence with which he was charged captures HIV transmission within a general criminal offence, by statutory definition of key terms, rather than an HIV-specific offence: see for example, Crimes Act 1900 (NSW), section 4. HIV is captured by the extended definition of ‘grievous bodily harm’ so as to include ‘any grievous bodily disease’; HIV transmission therefore falls under a general criminal offence, rather than a HIV-specific offence.
He pleaded guilty to these charges and in August 2008 he was sentenced in the County Court of Victoria to two years' imprisonment wholly suspended for three years on the first count; and on the second, a community-based order for two years with special conditions. The sentencing judge declined to give a sentencing discount for the plea of guilty.
Deterioration of physical health (2009 – 2014)
In 2009, the applicant suffered a subarachnoid haemorrhage and had a stroke, causing paralysis to his left side.[7]
[7] Statutory Declaration, 4 October 2018 at [1.20]: T8/128.
Court of Appeal decision
In April 2010 the Court of Appeal set aside the convictions because the sentencing judge did not take the applicant’s guilty plea into account in passing sentence. In resentencing, the court took into account his loss of liberty in civil detention over almost 16 months. The Court accepted that the applicant had a developing awareness of the inappropriateness of his behaviour, referring to two medical reports in which he acknowledged the mistake in his conduct. A therapeutic public health approach was considered to be more appropriate than treating the case as one for punishment. Also, there had been a very significant deterioration in the appellant's health, which was “seriously compromised”. This warranted a merciful disposition. On count 1, he was convicted and discharged; on count 2 he was sentenced to a community-based order.
Post release
There is little information about his living circumstances from the time he was released from civil detention in Victoria in 2008. At some point he moved to the Northern Territory. He was employed as an orderly in an aged care facility in Alice Springs between 2011 and 2013, which suggests that there had been some improvement to the condition of his health.[8]
[8] T9/143.
Domestic violence offending in South Australia in 2014 and 2015
During 2014 he was in an intimate relationship which gave rise to three criminal convictions in South Australia. On the first occasion, the couple went to a shopping centre. He was grossly affected by alcohol and struck his partner. She did not have any visible injuries at the time but there was bruising later. He was taken into custody and released on bail six weeks later. He visited her at her house the day after being released, in breach of his bail conditions. They broke up after this incident but in August 2014, they had a chance encounter at a hotel. They began drinking together. They left the hotel and went to a takeaway food outlet. According to witnesses, they were fighting, and he struck her again, kicking and punching her on the ground. He was again arrested. Bail was refused.
In December 2014, he was sentenced to six months imprisonment with three months suspended upon entry into a good behaviour bond. He was required to undertake alcohol abuse prevention programs if so directed. He was released 10 days after the sentencing hearing, the magistrate taking his time on remand into account.
The magistrate noted a few mitigating factors. The applicant was remorseful and seemed to understand the significance of his actions. He accepted the allegations and was entitled to credit for an early plea of guilty. He had no prior convictions and this offending occurred over a period of three months. He was lonely and drinking too much. He had no friends or family in Australia but had done a good job with his employment. He was capable and had potential to be part of the community. He had plans to see his child in Melbourne and was hoping to see that child. His refugee status was noted.
In February 2015, the applicant committed a more serious assault on the same woman. He admitted hitting her on the head with a wine bottle. He was not arrested until December 2016, almost two years later.[9]
[9] T9/149.
He was charged with aggravated assault causing harm (weapon used). The maximum penalty for this offence was five years.[10] He was sentenced in May 2017 to nine months imprisonment (allowing a 30% discount for an early plea), together with an additional three months (being the activated suspended sentence), making a total of 12 months imprisonment.[11] The magistrate recognised that he had experienced trauma in his life and that “his offending history is not as lengthy as some”. The non-parole period was set at six months and he was released from prison in December 2017.
[10] Criminal Law Consolidation Act 1935 (SA), section 20, (‘Appendix’).
[11] T9/147.
Refugee visa cancellation
In June 2017, his refugee visa was cancelled.[12] When he was released from prison in December, he was detained in immigration detention, where he remains.[13] On 10 April 2018, a delegate of the respondent decided not to revoke the decision to cancel his refugee visa.[14] The material before the Tribunal does not indicate whether the applicant challenged the decision not to revoke.
[12] Under section 501(3A) of the Migration Act.
[13] Under section 189 of the Migration Act.
[14] Under section 501CA(4) of the Migration Act: T9/136.
On 27 September 2018, his application for a bridging visa was rejected.
Application for protection visa
In September 2018, the applicant applied for a protection visa.
On 5 October 2018, he was interviewed with the assistance of an interpreter by telephone by an officer of the Department of Home Affairs.[15] The applicant’s migration agent was present. I have listened to the audio file record of the interview. He admitted hitting his then partner with a glass, although he later said it was a bottle. He said that they were both heavily intoxicated. He felt sorry about it because he was drunk.
[15] Interview held on 5 October 2018 with an official from Department of Home Affairs; see audio file, 1.04.
On 9 October 2018, the delegate wrote to the applicant and to his representative about his offending.[16] He was asked to explain in writing why he was blaming his victim. In response, the applicant filed an unsigned statutory declaration. He replied:
1.1      I accept that I committed the offences referred to in the letter from the department dated 9 October 2018. My explanation is that I committed those offences at a time and in circumstances when I had consumed alcohol that was affecting me. If I had not been under the influence of alcohol at the time, I would not have committed any of those offences.
1.12     The offences for which I was arrested in July and August 2014 happened because the lady had come to me with alcohol immediately after my release. We got drunk and started fighting and that is why I have now decided to avoid alcohol and the company of people that are drunkards.
1.15     At my protection visa interview on 5 October 2018, I wasn't trying to blame anyone for the offences I had committed, I was trying to give an honest answer to the interviewer and I take full responsibility for the offences I committed. [17]
[16] T9/131.
[17] T10/162.
On 27 November 2018, a further invitation to comment letter was sent to the applicant relating to various incidents that were alleged to have occurred in immigration detention.[18] In response, the applicant filed a statutory declaration dated 6 February 2019.[19]
[18] T13/169.
[19] T16/179-180.
By letter dated 8 April 2020, the Department of Home Affairs informed the applicant that his application for a protection visa (subclass 866) had been refused.[20] The delegate was satisfied that the applicant was a person in respect of whom Australia had protection obligations. The delegate was also satisfied that he had been convicted by a final judgment of a particularly serious crime and was a danger to the community. He was therefore not eligible for a protection visa. [21]
[20] T2/7.
[21] T2/39.
On 30 April 2020, the applicant lodged an application for review with the Tribunal.[22] In his application for review, the applicant stated:
I had a stroke in 2009 and had an operation. My left leg is paralysed and I used a walking stick. I also can't see in my right eye. The stroke and operation also affected how I think and remember things.
[22] T1/1.
He also stated that he was “significantly disabled and do not pose a risk to anyone”.[23]
[23] T1/5.
HEARING BEFORE TRIBUNAL
The Tribunal is authorised by its enabling act to review specified decisions made in the exercise of powers conferred by an enactment.[24] The decision by the delegate to refuse his application for a protection visa is subject to review by the Tribunal.
[24] The Administrative Appeals Tribunals Act (Cth) (the AAT Act), section 25.
The application was heard by videoconference on 19 January and 22 December 2021, in accordance with current arrangements relating to the COVID-19 pandemic.
The applicant was represented by counsel, the respondent by the Australian Government Solicitor.
The Tribunal was provided with the following materials.
Applicant’s materials
·Applicant’s Statement of Facts, Issues and Contentions, dated 29 September 2020;
·Psychological assessment by Mr Sava Tsolis, clinical psychologist, dated 11 September 2020;
Respondent’s materials
·Statement of Facts, Issues and Contentions, dated 16 October 2020;
·Decisional materials relating to the decision under section 37 the AAT Act (the ‘T docs’) (247 pages);
·Supplementary T docs (71 pages);
·Respondent’s Tender Bundle (Incident Reports) (31 pages);
·Copy of audio file of interview with applicant on 5 October 2018 by delegate.
The applicant gave evidence. He said that he was in a wheelchair and that his left leg was paralysed and that he was due to have another operation. He was able to stand only with the assistance of a crutch and only for ten minutes at a time.[25] The applicant’s counsel then asked for an adjournment. He said that he was taken by surprise by the applicant’s answers. He was unaware of the seriousness of his client’s physical condition. He said he wished to procure medical reports relating to the applicant’s state of health. Such reports would be directly relevant to the critical issue before the Tribunal.
[25] Transcript, 29 January 2021, 12-14.
The respondent did not oppose the request for an adjournment, which was duly granted. Unfortunately, the matter did not resume until 22 December 2021, and there were further developments during the intervening period.
FURTHER DEVELOPMENTS
During 2021, the applicant became increasingly frustrated about his ongoing detention, while the staff became increasingly concerned with his perceived recalcitrance in relation to his medication. His state of health is complex, involving discrete physical and mental health conditions. In March 2021, he was transferred to Bankstown Hospital for a mental health assessment under the Mental Health Act 2007 (NSW) (MHA).[26] Although the incident is described as an acute psychiatric hospital admission, the mental health team did not make a positive diagnosis of psychosis.[27] He was hypertensive and was given amlodipine. In May 2021, he was returned to immigration detention.
[26] Banks House, 7 April 2021-6 May 2021: RTB/30.
[27] IHMS Reports, 44.
The relevant program manager of the Liverpool HIV Clinic considered that he was not a public health risk due to his refusal to take HIV medication. He was entitled to refuse medication for HIV and was an appropriate subject for outpatient follow-up.[28] The discharge notes prepared by Dr Lily Chen (trainee specialist) record the possibility that he was not mentally ill, and that there were other cultural, personality and educational factors at play. He was able to provide “some rationale for his claims”.[29]
[28] According to its website, HARP (HIV/AIDS and Related Programs Unit (HARP)) works in partnership with government and Non-Government Organisation to provide strategic direction and support around Sexually Transmitted Infections (STIs), HIV/AIDS, Blood-Borne Viruses (BBVs) and Needle and Syringe Program (NSP) services, including: Clinical network support and effective governance arrangements; Monitoring and improving the performance of services; Direction, advice and financial accountability for AIDS programs and related funding streams: RTB 4-5.
Capacity to Consent to Medical Treatment
At around the same time, the applicant’s general practitioner referred him for a neurological assessment. The GP was concerned about his mental capacity. The referral was to delineate his cognitive functioning and for an opinion about his capacity to make informed medical decisions. He was clearly perturbed by this development. A file note records the following:
Appeared settled in mood and behaviour, settled in mental state, nil evidence of psychosis, nil acute risk to self. Was calm and cooperative with appropriate speech, nil confusion or distress noted, appeared alert and oriented logical and his memory is intact. Became upset after hearing the reason for the appointment, was upset because he doesn't know on what grounds did Serco deem him to be confused. Stated that it didn't make any sense to him, reported that the only time he speaks to the officers is when he is asking for something and doesn't think that that's a sign of confusion. Reported that everything is the same, he is frustrated with Immigration, has been trying to contact his CM but he is not answering, will try again later today. Nil other issues reported, detainee is aware of the MHT if requiring further input. [30]
[30] File Note 22 March 2021, IHMS Reports, 48.

The Neuropsychological Assessment Report is dated 12 August 2021. It is written by a clinical neuropsychologist who assessed the applicant on 17 June and 6 August 2021.[31] The Report notes that the head of the applicant’s treating team had reported that the applicant was repeatedly and adamantly refusing to take his medication, despite the explanations that had been given to him, and the consequences of refusing treatment. His psychiatrist had requested a community treatment order (CTO). The referral letter stated that the applicant “does not seem to comprehend or care”, and that he demonstrates difficulties with cognition, having difficulty with attention, memory, and executive functioning. These were the reasons for the referral.
[31] Report of Neurological Assessment: RTB/16-18.
The psychologist administered some tests, including the Wechsler Adult Intelligence Scale, 4^th edition, (WAID-IV) and concluded that the applicant did not have the capacity to make informed medical decisions, and that the appointment of a substitute decision-maker was highly recommended.
Request for Specialised Complex Care Placement
On 15 October 2021, a doctor from IHMS referred the applicant for high care support. The referral states:
Mr [PFKJ] was previously requiring a part time carer to assist with all activities of daily living however due to recent deterioration is now requiring 24/7 carer support. This is due to a combination of generalised worsening lower left limb weakness causing unsteadiness when mobilising and transferring presenting a significant falls risk.
Mr [PFKJ] is poorly motivated with utilising aids to mobilise and is at risk of pressure area injuries due to immobility. Since recent deterioration Mr [PFKJ] will only use a wheelchair to transfer and mobilise. It is likely that his condition will not improve and further mobility aids such as a hospital bed, pressure area care mattress and a hoist x 2 staff assist will be required to be facilitated in a disability suitable type of accommodation.
Mr [PFKJ] is non-compliant with most medications and requires daily encouragement and observation with medication administration and management 24/7.
An occupational therapy review recommended three weekly physiotherapy sessions to reduce the risk of muscle wastage, strengthen muscles and promote mobility. This service could be provided in a supported independent living accommodation environment with the assistance of carer support and encouragement as outpatient rehabilitation would not be suitable with Mr [PFKJ]’s level of cognitive impairment. A behavioural support plan would also be implemented by a behaviour specialist to promote medication compliance with the assistance and encouragement of his 24/7 care team.
IHMS recommends an alternate specialised complex care placement in a supported independent living environment where the above care needs can be facilitated and managed safely and effectively which cannot be met within a detention centre setting.
The medical records provided by way of support for the high care request indicate that the applicant has experienced a variety of physical and mental health conditions, some of which remain current and ongoing. These include human immunodeficiency virus (HIV), uncontrolled hypertension, chronic hepatitis B infection with liver lesions, gout, latent tuberculosis infection (LTBI), syphilis, and podiatry issues.
I note an IHMS note, dated 12 March 2021, which states that a chest X-ray was not suggestive of TB but that he was immunocompromised. The file note records his presentation to hospital on mental health issues but there were no ‘TB related issues.’ He was recommended for a further X-ray in September 2021. There were ‘No new issues.’[32]
[32] IHMS Reports, 53.
Perhaps the most serious condition relates to uncontrolled hypertension, which resulted in an admission to Liverpool hospital on 7 October 2021 for suspected stroke. There was concern for his blood pressure throughout 2021.
[PFKJ] was recommended for transfer to the emergency department at Liverpool hospital for an urgent review of his uncontrolled hypertension when his blood pressure was severely high. He refused to attend but agreed to take his medication following which his blood pressure had improved. The following day an IHMS GP documented his blood pressure was improved and Mr [PFKJ] stated he would take his medication in the mornings. An IHMS nurse provided Mr [PFKJ] with a Webster pack and encouraged attendance to the clinic for observations. On 16 June 2021, an IHMS GP noted Mr [PFKJ] was doing well with the Webster pack for his anti-hypertensive medications and his condition was improving. On 13 August 2021, Mr [PFKJ] advised the GP he was taking his medication properly, but his blood pressure was still high. The GP had suggested adding another agent for better control which Mr [PFKJ] declined. On 03 September 2021, an IHMS GP consulted Mr [PFKJ] about this health issue when Mr PFKJ insisted, he was taking his medication even though IHMS noted he missed collecting it on two occasions. Mr [PFKJ] was re-educated about the importance of his treatment and consequences should he not follow. Mr [PFKJ] complained about his left leg weakness from the previous stroke and was encouraged to do exercises and use the muscle in a safe way. He was reassured that he will be referred for physiotherapy to help him to maintain his residual function in the left leg.
Mr [PFKJ] has agreed to continue with the Webster pack but in September 2021 was advised that his renal function was slightly worse than in March 2021.
On 13 September 2021, an IHMS GP consulted Mr [PFKJ]’s nephrologist and advised that Mr [PFKJ] was compliant with his prescribed medications. The nephrologist advised to change Mr [PFKJ]’s blood pressure medications and should his blood pressure reach certain readings then add another one. Mr PFKJ was recommended for a follow-up review in three months again in January 2022.
On 23 September 2021, the GP documented that Mr [PFKJ]’s blood pressure remained high and encouraged medication compliance.
On 07 October 2021, Mr [PFKJ]’s blood pressure was recorded as severe, and Mr [PFKJ] was not cooperative with examination. The GP recommended transfer to the emergency department at Liverpool hospital for suspected stroke. Mr [PFKJ] was admitted under the Immunology team for investigations of reported acute worsening of his left lower limb for three days on the background of residual weakness from his previous intracranial pathology.
Mr [PFKJ] was reporting worsening of his left lower limb weakness for a few days without any precipitant. This was associated with some subjective sensory loss, but he had no urinary symptoms. His baseline mobility was with crutches, but he also required use of a wheelchair. On admission a brain Computerized Tomography (CT) scan was performed and showed some left sided changes. This was discussed with a neurologist who was unable to explain Mr [PFKJ]’s symptoms. A CT scan of Mr [PFKJ]’s lumbar spine showed left L4/5 foraminal stenosis although he did not have any features of sciatica. Mr [PFKJ] was assessed by hospital physiotherapist who has cleared him from a mobility perspective for discharge with crutches. Several other investigations were performed, and his imaging results were discussed with a neurosurgeon who advised that Mr [PFKJ] would not need any outpatient follow-up unless he develops any concerning symptoms.
Post discharge on 11 October 2021 an IHMS GP consulted Mr [PFKJ] and noted that he had trouble getting up from bed to go to the toilet due to his symptoms of leg weakness that had gradually worsened. Due to the leg paralysis, it was recommended for Mr [PFKJ] to have a full-time carer. This is yet to be actioned. Mr [PFKJ] is currently in a quarantine following his hospital discharge. His Covid-19 results were negative. He continues being attended to daily by the IHMS medical team for welfare checks and has two auxiliary crutches as well as wheelchair available in his room.[33]
[33] RTB 24/25.
The medical records also refer to a history of alcohol and drug abuse, Adjustment Disorder with Anxious Mood, Brain Haemorrhage (2009), Cognitive Impairment and residual neurological impairment from brain injury, Disinhibited Behaviour, Chronic Schizophrenia, and Psychotic Disorder.
The applicant’s mental health issues are comprehensively if somewhat inconclusively covered in the following medical notes:
In April 2021, Mr [PFKJ] was transferred to Bankstown hospital for treatment under the Mental Health Act (MHA) after he presented with persecutory delusions and mildly elevated mood. The hospital discharge summary advised that the mental health symptoms have caused Mr [PFKJ] to decline to take his HIV medication over a week.
Mr [PFKJ] stated he didn’t believe he had HIV and held delusions that an IHMS GP at VIDC was trying to kill him.
Upon discharge Mr [PFKJ] denied any difficulties with his sleep or appetite, he denied suffering any suicidal ideation and did not appear to be suffering any religious delusions or perceptual disturbances. He was then transferred to “Banks House” at Bankstown hospital after he attended mental health tribunal and was granted inpatient order up to four weeks due to his ongoing refusal of medications.
Mr [PFKJ] was discharged on 06 May 2021 and reported feeling much better. Mr [PFKJ] stated he would be compliant with the charted depot medication and denied any self-harm or harming others ideation or plans.
On 11 May 2021, an IHMS psychiatrist discussed Mr [PFKJ]’s situation with the hospital and was advised that despite month admission the discharge summary stated "The treating team were unable to conclude if Mr [PFKJ] was experiencing psychosis or whether his symptoms were in the context of cultural, personality and educational factors. He refused HIV medications whilst in hospital but deemed to have capacity to refuse. Mr [PFKJ] begun on a depot antipsychotic with suggestion to continue for possible psychosis.”
Since the hospital discharge Mr [PFKJ] continued to refuse oral medications despite encouragement. On assessment the IHMS psychiatrist documented clinical impression of “Complex neuropsychiatric morbidity; previous intracranial haemorrhage, HIV illness currently refusing medications, awaiting neuropsychological testing to explore probable cognitive deficits and recent admission with possible psychosis. Cognition has been hard to assess due to language issues and likely low educational attainment.”
Mr [PFKJ] was scheduled for neuropsychological testing with the results submitted for assessment of a Guardianship. Mr [PFKJ] was placed on ongoing SME.
On 28 May 2021, Mr [PFKJ] signed a refusal of treatment form advising he will not be taking any medications including his depot injection. On 10 June 2021, an IHMS psychiatrist ceased the depot given Mr [PFKJ]’s ongoing refusal.
On 01 July 2021, an IHMS psychiatrist reported that in his opinion “Mr [PFKJ] has a complex chronic neuropsychiatric syndrome which is likely multifactorial. There have been multiple brain injuries with radiological evidence of ongoing brain changes. His personal and developmental history is sketchy, but he almost certainly has limited education. He has likely suffered psychological trauma in his life. He has been in chronically stressful situation with prolonged immigration detention. He has cognitive deficits on testing with the MOCA (23/30). Since discharge from hospital, he has been refusing the prescribed depot antipsychotic medication and has not attended psychiatric follow up. The main concern with regards to risk is his ongoing refusal to take HIV medications and the potential health consequences of this. There is also risk of ongoing noncompliance of psychiatric treatment which will likely lead to further deterioration of his complex neuropsychiatric condition.” The psychiatrist advised he liaised with the Bankstown Community Mental Health Team and their psychiatrist who reviewed Mr [PFKJ] in hospital. They agreed that Mr [PFKJ] should be managed on a Community Treatment Order (CTO) and they have written a CTO care plan.
On 17 June 2021 and 06 August 2021, Mr [PFKJ] attended neuropsychological assessment and on 01 September 2021 an IHMS psychiatrist reported that a six-month CTO has been granted for Mr [PFKJ]. However, the psychiatrist also commented that the neuropsychological reported suggested that “Mr [PFKJ] lacks capacity to make medical decisions. Whilst, it is not explicitly noted in the report, I would also interpret the results of this testing as suggesting that he lacks capacity to make decisions with regards to Immigration matters. In my opinion a Public Guardian should be sought.” The IHMS psychiatrist also noted history of Syphilis (in 2018) and documented that he is aware that tertiary neurosyphilis can cause delusions and cognitive impairment and may present years after the initial infection.
A follow-up pathology testing was requested and on 03 September 2021 Mr [PFKJ] agreed to have his depot injection. He was provided with his CTO letter which he was upset about, but no acute risks were identified.
On 07 October 2021 an IHMS GP discussed with the psychiatrist that Mr [PFKJ]’s Guardianship is in progress and is scheduled for December 2021. IHMS mental health team continues monitoring and managing Mr [PFKJ]’s mental health closely or as clinically indicated.[34]
[34] RTB/28-29.
Appointment of Guardian
On 4 November 2021, the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) made a guardianship order under the Guardianship Act 1987 (NSW) for a period of 12 months. The functions of the Public Guardian under the Guardianship Order (the Order) are as follows:
5. The guardian has the following functions:
a) Advocacy
To advocate generally for [PFKJ].
b) Health care
To decide what health care [PFKJ] may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where [PFKJ] is not capable of giving a valid consent.
The appointment of a guardian requires consideration and coordination between state and commonwealth entities with respect to the applicant’s health care and accommodation needs, whether in the future he is transferred again to a hospital pursuant to the Mental Health Act, or indeed, released into the community.[35] He will undoubtedly require a good deal of social welfare support to survive in the community. The appointment of a Public Guardian provides some comfort that appropriate arrangements will be made for his accommodation.
[35] See, Guardianship Act 1987, ss 11-13.
RESUMPTION OF THE TRIBUNAL HEARING
On 22 December 2021, the matter was resumed before the Tribunal. The respondent provided a Supplementary Statement of Facts, Issues and Contentions, dated 14 October 2021.
The Tribunal also received:
·Neuropsychological Assessment Report, dated 12 August 2021;
·Request for Specialised Complex Care Placement, dated 15 October 2021;
·Copy of a Guardianship Order, dated 4 November 2021.
·Clinical Records of International Health and Medical Services, including notes from various medical professionals from various dates.
The Tribunal was assisted by an interpreter in the applicant’s home language.
The applicant did not give further evidence to the Tribunal.
I note that the Guardianship Order specifies that the Public Guardian has the function ‘to advocate generally’ on behalf of the applicant. The present application was commenced prior to the appointment of the Public Guardian. It was not submitted that the appointment of a guardian meant that the present proceedings should be stayed pending the approval of the guardian or discontinued. However, in light of the Guardianship Order, made on 4 November 2021, I asked Mr Glenister whether he had liaised with or received any instructions from the Public Guardian. He undertook to obtain instructions from his instructing solicitor. The Public Guardian has since indicated that they consent to the applicant’s representatives acting on the applicant’s behalf in the present matter before the Tribunal.
LEGISLATIVE FRAMEWORK
Section 36 of the Act provides:
36 Protection 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 (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(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.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
...
(aa) a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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
...
Section 5M provides:
5MParticularly 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…
“Serious Australian offence” is defined in s 5 of the Act as follows:
serious Australian offence means an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
Section 65 provides:
65Decision to grant or refuse to grant visa
(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
THE APPLICATION OF SECTION 36
The National Police Certificate was received into evidence. The applicant’s counsel did not dispute that the applicant had been convicted of the offences recorded therein. The aggravated assault offences committed by the applicant in South Australia were punishable by a maximum term of either three or five year’s imprisonment.
I agree with the delegate that each iteration of the aggravated assault offence charged against the applicant is a ‘serious Australian offence’, as defined by subsection 5(1) of the Migration Act, and therefore each of these three convictions are for a ‘particularly serious crime’ as defined by section 5M of the Migration Act.

I am satisfied that the applicant has been convicted by a final judgment of a particularly serious crime. It is therefore necessary to determine whether, having been convicted by a final judgment of a particularly serious crime, the applicant is a danger to the Australian community.[36]
[36] T2/42.
In terms of the assessment of ‘danger’, the delegate applied what he described as the “test” laid down by the Honourable Deputy President Tamberlin in WKCG and Minister for Immigration and Citizenship [2009] AATA 512. His Honour stated:
The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 100:
...
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk.
I note that there has been some suggestion that the comments falling from his Honour should now be read subject to what was said by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63.
In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”.
...
Other difficulties about an uncritical acceptance of all that is stated in WKCG arise from that part of the passage quoted to which I have given emphasis. That there is a “danger” is, necessarily in my view, a conclusion based on an assessment of the present “level of risk”. But that does not mean that the word, “danger” carries a meaning that differs from case to case. Its meaning is fixed, but whether it is present in respect of, materially, a person applying for a protection visa will depend on the circumstances of the given case. Further, the reference to “a lesser degree of satisfaction than that required by the expression “probable” antedate and are inconsistent with the observations made by Flick and Perry JJ about administrative fact finding in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555. The state of satisfaction in respect of the subject to which s 36(1C)(b) of the Act is directed must be one reasonably open on the evidence before the Minister, not one which “no rational or logical decision maker could arrive on the same evidence”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, at [130] per Crennan and Bell JJ. With respect, to use the word “probable” in relation to administrative fact finding is to borrow “from the universe of discourse which has civil litigation as its subject”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 282.
In reconciling these passages, I adopt what was said in MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259, generally paragraphs [19] – [35], and specifically at [33] – [35].[37]
33.      In the present case, counsel for the respondent asked us to find against the applicant if we are satisfied that the risk to the Australian community presented by his release rose no higher than the possibility of some harm.
34.      We are not comfortable with the notion that a person may be treated as a present danger to the community merely because one cannot discount the bare possibility that some harm may occur in the future.
35.      In our view, a level of risk is unacceptable if the evidence before the Tribunal points to a present and serious risk, neither remote nor fanciful, of physical harm, or extreme emotional harm (in the sense explained above), to some member or members of the Australian community. The expression “neither remote nor fanciful” is intended to exclude the ordinary hazards of life; the reference to extreme emotional harm is intended to exclude matters of upset, distress or embarrassment, which do not properly fall within the area of relevant harm.
[37] A panel consisting of Deputy President Rayment OAM QC and the present Tribunal member.
IS THE APPLICANT A DANGER TO THE AUSTRALIAN COMMUNITY?
Is the level of risk associated with his personal attributes, as informed by his history of civil and criminal detention, such that he might reasonably be regarded as a danger to the Australian community?
In making an assessment, the Tribunal is required to consider his abuse of alcohol in the past, his cultural attitudes, especially towards women, his poor education, his past domestic violence, and his overall health condition, including both his mental and physical health, in particular his HIV status and deteriorating medical condition.
I note that his mental and physical health has declined substantially over the past year, as evident from the many file notes. One such example may be found in the referral for high care support by a doctor from IHMS dated 15 October 2021, which states:
Mr [PFKJ] is poorly motivated with utilising aids to mobilise and is at risk of pressure area injuries due to immobility. Since recent deterioration Mr [PFKJ] will only use a wheelchair to transfer and mobilise. It is likely that his condition will not improve and further mobility aids such as a hospital bed, pressure area care mattress and a hoist x 2 staff assist will be required to be facilitated in a disability suitable type of accommodation.
Mr [PFKJ] is non-compliant with most medications and requires daily encouragement and observation with medication administration and management 24/7.
Non-compliance with medication
I note that he is currently taking a range of medications.[38] Within the coercive environment of detention, he has been for the most part compliant with medication, but there are instances of non-compliance. The referral to mental hospital was triggered by the staff’s anxiety about his refusal to take HIV medication. I note that he was discharged on the basis that there was no evidence of psychosis, and that his condition could be managed through outpatients. In the Tribunal’s view, the evidence falls short of establishing that the applicant is wholly resistant to medical treatment.
[38] RTB/31. Dolutegravir; Allopurinol; Lamivudine; Tenofovir disoproxil fumarate /Emtricitabine; aliperidone suspension; Olmesartan medoxomil/Amlodipine/Hydrochlorothiazide; Diclofenac diethylamine; Paracetamol-as required; Chloramphenicol Eye Drops.
In any event, the appointment of a Public Guardian, together with the coercive powers contained in the Health Act, serve to mitigate the risk to the community posed by his health condition. His refusal to take HIV medication is not a matter upon which the judgment of the Tribunal pivots. There is no evidence before the Tribunal regarding the risk of HIV transmission, and sexual transmission of the virus is, in my view, unlikely, given the evidence relating to his current health status.
It seems to the Tribunal that the genesis of the applicant’s troubles with authority in Australia emanate from his belief that he does not have HIV, and that he does not trust the various treating professionals in relation to the taking of prescribed medication. It is hard to say to what extent this is due to irrationality on his part, cultural differences about sexual matters, sheer recalcitrance, or the consequence of coerced medical treatment going back to his experience in Victoria in 2008 when he was subject to rolling heath orders resulting in civil detention.[39]
[39] See, for example, Chief Health Officer, NSW Department of Health v A [2001] NSWADT 69.
The applicant’s civil detention in 2008 reflected the health profession’s early response to the outbreak of HIV.[40] Attitudes towards HIV and its treatment have changed in the intervening years, although the extent to which health orders are used to isolate those with contagious diseases, including HIV, is unclear.[41]
[40] See Carter, D, "The Use of Coercive Public Health and Human Biosecurity Law in Australia: An Empirical Analysis" [2020] University of New South Wales Law Review 5. The case of Sharleen Spiteri is perhaps the best known: see ‘Shutting Down Sharleen’, Hindsight (ABC Radio National, 21 March 2010) < Tom Morton, ‘“Dirty Little Secret”: Journalism, Privacy and the Case of Sharleen Spiteri’ (2012) 18(1) Pacific Journalism Review 46.
[41] Australia is confronted with another pandemic, COVID-19, which has tested the resolve of the public and policy makers in dealing with those who do not believe in vaccination, let alone mandatory vaccination: Lelliott et al, “Pandemics, Punishment, and Public Health: Covid-19 and Criminal Law in Australia” [2021] University of New South Wales Law Review 167.
Violent offending
I turn to the question of personal violence, especially towards women. It is important to place this offending in the overall context of the applicant’s offending, which spans the period 2008 – 2015.
On its face, it appears that the applicant’s record is serious. He has a total of 20 convictions in Australia: Victoria (3), Western Australia (1), New South Wales (3) and South Australia (13) and one outstanding matter (assault, WA, 2011).
Prior to the DV offending in South Australia, he had received two small fines (one in Victoria (2008) and one in WA (2011), a community-based order in Victoria (2010) and three good behaviour bonds in NSW (2014). Over this period, he was convicted of four assaults, the details of which are not apparent from the record. For none of these offences did he receive a term of imprisonment. In terms of disposition prior to South Australia, the tally is as follows: imprisonment (0); community-based orders (1); good behaviour bonds (3), fines (2); discharged without penalty (1).
As recounted above, the offending in South Australia involved three aggravated assaults on his girlfriend, committed in a short space of a few months. One of those assaults involved the use of a weapon (a glass or bottle), and all were committed in a domestic context. In carrying out these three assaults, the applicant also contravened several court orders (five instances of failure to comply with bail conditions; two instances of contravene intervention order; and breach of bond). These contraventions, which constituted criminal offences, arose directly from the commission of the assaults. The existence of these orders did not deter him. The best that might be said is that with his background and naivety he did not appreciate the importance of compliance with these court orders.
In sentencing the applicant for the most recent (and most serious) offence, the magistrate observed that his “offending history is not as lengthy as some”. He also referred to the personal matters that went to some extent to explain but not excuse his offending. The applicant was sentenced on the basis that his criminal record was relatively confined. There is no record to suggest any such behaviour in relation to the mother of his child, from whom he separated shortly after the birth of their child. Nevertheless, the domestic violence assaults were undoubtedly very serious.
Behaviour in Detention
The respondent provided the Tribunal with the incident reports relating to the applicant in detention.[42] The record contains instances of inappropriate behaviour, no doubt regarded by the staff as irritating or annoying.[43]
[42] RTB.
[43] For example, making a suggestive tongue movement to a female member of staff, RTB/9; squeezing the hand of a nurse RTB/11; striking a nurse on the buttock with his crutch in response to being tapped on the shoulder: RTB/14.
I do not think that his conduct in detention considered in context could be described as dangerous or threatening. He has not faced disciplinary proceedings or been charged with any offence arising from his time in detention.
It is impossible to avoid the harsh reality of his detention. He does not want to be in detention and finds it very frustrating. He has spent years in detention and thinks that he has been unfairly treated. He is socially and culturally isolated. He appears to have been the victim of assault in detention on more than one occasion. Given the circumstances of his detention, I do not think the record shows a propensity for violence.
The relevance of indefinite detention
The spectre of indefinite detention hovers over these proceedings. The finding that the applicant is a person to whom international protection obligations are owed means that he cannot be removed involuntary to his home country.[44] It would be disingenuous to say that such a grim state of affairs can be entirely shut out from one’s deliberations, but it is not something that the Tribunal can consider in deciding whether he is a danger to the community. It is, strictly speaking, an irrelevant consideration.
[44] The Migration Act, subsection 197C(3).
Can it therefore be said that the applicant presents a serious risk, neither remote nor fanciful, of physical harm, or extreme emotional harm, to some member or members of the Australian community?
The domestic violence offending is a serious blight on the applicant’s record. However, it occurred over a relatively short period of a few months and appears to have been confined to this single relationship. There are other instances of assault, but the Tribunal has little, if any, information relating to these other matters, and there is no suggestion that any of them involved women.[45] In respect of the affray, he told the delegate that he was defending himself against a pickpocket.
[45] Discussed by the delegate at T2/ 51.
The applicant’s harrowing past also looms large in this case and explains but does not justify his resort to alcohol. He would not be the first to resort to drink to escape memories or dull the pain. His experience as a refugee has taken its toll. There is scant evidence before the Tribunal of any assistance that may have been provided to the applicant as a refugee to adjust to Australian culture. The patriarchal culture in which he was raised is foreign to modern Australians, especially in relation to attitudes towards women.
Negative indicators are that he is alone in the world and apart from the hope of a relationship with his son (which may seem remote) he appears to be devoid of meaningful relationships in Australia. There is some suggestion that his family overseas have tried within limited means to provide some support for him. But it cannot be said that he has strong local support from family or kinships groups. There is no prospect of immediate employment and indeed, it appears that his medical condition would not allow it. There will be adjustment difficulties when he is released into the community. He may experience racism from some community members due to his ethnicity.
According to the clinical assessment by Mr Tsolis:
Mr [PFKJ] has acknowledged the detrimental impact that his alcohol use has had on all major life domains. He has been abstinent from alcohol and remains committed to seeking treatment upon release. As Mr [PFKJ] is willing to undertake psychological intervention he will also receive treatment for his underlying psychological trauma and associated behaviours.
Whilst confronting these past issues remains a major obstacle for Mr [PFKJ] the fact that he is so willing to engage in psychological intervention is a promising sign that he will be able to confront these issues in the course of therapy. If he does so, he will remove a major trigger to his past offending. As aforementioned he is highly motivated to do so.
Mr [PFKJ] is a traumatised refugee with a young child. He is keen to give them a better life and a good education, all the things that he himself was denied. He is willing to work and has previously engaged in study to better himself.
I do not believe that Mr [PFKJ] exhibits an entrenched criminal proclivity or propensity to engage in offending behaviours. His alcohol use has been the attributing factor of his offending behaviour. This alcohol use may well be an avoidance mechanism he had previously put into place in an effort to deal with his past traumatic experiences. If the symptoms that he reported that are consistent with PTSD are adequately treated then I believe his alcohol use will cease.
If he reverted to the heavy consumption of alcohol, he would pose an unacceptable risk to the broader community and especially to those who might trust him with a relationship in the future. However, he has indicated that he does not intend to drink again. He has been without alcohol for the duration of his detention, which exceeds five years. He is powerfully motivated to avoid situations where he may come into conflict. I consider that there is a low risk of the applicant acting in a violent manner if released into the community.
The applicant has suffered a loss of liberty since the end of 2016, when he was arrested in relation to the domestic violence offence. Prior to that, he was detained in 2008 for almost 16 months under public health orders in Victoria. In other words, in the fourteen years since arriving in Australia in 2006, he was spent almost half that time in prison or detention, mostly in immigration detention. He will be strongly motivated to avoid any risk of further detention or imprisonment.
In the December hearing, the respondent’s solicitor contended that the applicant would be homeless if released into the community, on the basis that he is socially isolated and does not have an ongoing relationship with his former wife or son. At the time of the hearing, the Tribunal had received scant information about the applicant’s post release plans.
POST HEARING SUBMISSIONS
After the hearing, the Tribunal requested an update as to the progress or outcome of the proposal to transfer the applicant to high care accommodation. On 19 January 2022, the respondent provided the following information:
A Tier 4 placement for Mr [PFKJ] was approved by the department yesterday, 17 January 2021 (sic).[46]
[46] The respondent’s solicitor emailed the Tribunal on 19 January 2022, stating that this information was received ‘yesterday’. Therefore, the Tribunal assumes that the reference to ‘2021’ is an error – it should be ‘2022’.
IHMS have sourced a supported independent living accommodation service provider My Home, which is a disability housing provider in Greystanes, Sydney that specialises in providing high quality disability services including independent supported living. My Home have proposed Mr [PFKJ] be placed in the Greystanes house in the lower floor accommodation. He will receive carer support of 1:1 supported independent living, which includes 1:1 care in the day and 1:1 care overnight 24 hours a day, 7 days a week to maintain safe and effective carer support and management.
The care support provided by My Home also includes, but is not limited to:
General Practitioner referral for management;
continuity of care should visa status change;
access to allied health including speech pathology, occupational therapy, podiatry, dietician, dentist, physiotherapy, behavioural specialist etc;
assistance with groceries and meal preparation;
access to attending external specialist appointments and consultations; and
excursions and daily activities.
The date of transfer is not known at this time but is anticipated to be within the next week or so. IHMS will still need to contact the public guardian as the guardianship order which is in effect, includes medical decisions; a directed persons agreement will need to be arranged; as well as a site risk assessment inspection to be carried out by Serco to ensure the property does not pose any security risk.

This correspondence shows that the applicant suffers from a range of serious health conditions, as outlined in the request for specialised complex care placement.[47] It is apparent that his physical and mental health has declined substantially over the past 12 months, culminating in the appointment of the Public Guardian, and his need for specialised high care. These are important factors in this case.
[47] RTB/21.
The correspondence also clarifies the concern outlined above regarding the applicant’s possible lack of suitable accommodation upon release from detention. With confirmation that supported independent living arrangements will be provided to the applicant, which by the above account will continue even if the applicant’s visa status changes, it is clear that the applicant will not be homeless upon release.
CONCLUSION
I have considered the applicant’s criminal record and his record in detention along with the extensive body of medical evidence provided by both parties. I am satisfied that the deterioration of his physical and mental wellbeing suggest that he is not a danger to the Australian community. I am also satisfied that neither his criminal record, nor his record in detention, requires a finding that he is a danger to the Australian community.
DECISION
The reviewable decision, being the decision of the delegate of the Minister for Home Affairs dated 8 April 2020 to refuse the applicant’s XA-866 (permanent protection) visa, is set aside. The matter is remitted to the Minister with a direction that the applicant is not a danger to the Australian community.
APPENDIX
In May 2017, the Criminal Law Consolidation Act provided:
20—Assault
(1) A person commits an assault if the person, without the consent of another person (the victim)—
(a) intentionally applies force (directly or indirectly) to the victim; or
(b) intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(c) threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—
(i) the person who makes the threat is in a position to carry out the threat and intends to do so; or
(ii) there is a real possibility that the person will carry out the threat; or
(d) does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or
(e) accosts or impedes another in a threatening manner.
(2) However—
(a) conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and
(b) conduct that is justified or excused by law cannot amount to an assault.
(3) A person who commits an assault is guilty of an offence. Maximum penalty:
(a) for a basic offence—imprisonment for 2 years;
(b) for an aggravated offence (except one to which paragraph (c) or (d) applies)—imprisonment for 3 years;
(c) for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years;
(d) for an offence aggravated by the circumstances referred to in section 5AA(1)(c), (ca) or (ka)—imprisonment for 5 years.
(4) A person who commits an assault that causes harm to another is guilty of an offence. Maximum penalty:
(a) for a basic offence—imprisonment for 3 years;
(b) for an aggravated offence (except one to which paragraph (c) or (d) applies)—imprisonment for 4 years;
(c) for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 5 years;
(d) for an offence aggravated by the circumstances referred to in section 5AA(1)(c), (ca) or (ka)—imprisonment for 7 years.….

I certify that the preceding 92 (ninety - two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

...............................[SGD].........................................
Associate
Dated: 8 February 2022

Date(s) of hearing: 29 January 2021 & 22 December 2021

Date final submissions received: 19 January 2022

Counsel for the Applicant: Mr H Glenister

Solicitors for the Applicant: Mr V Yogendran, Savannah Legal

Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor

[2022] AATA 172

8 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Appeal

Jurisdiction

Date(s) of hearing:	29 January 2021 & 22 December 2021
Date final submissions received:	19 January 2022
Counsel for the Applicant:	Mr H Glenister
Solicitors for the Applicant:	Mr V Yogendran, Savannah Legal
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor