SGFZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 4353

SGFZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4353 (22 December 2023)

Division:GENERAL DIVISION

File Number:          2023/7390

Re:SGFZ  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Rebecca Bellamy

Date of Decision:                   22 December 2023   

Date of written reasons:         12 January 2024

Place:Brisbane

On 22 December 2023, the Tribunal affirmed the decision under review, with written reasons for the decision to be provided at a later date.

.........................[SGD]........................
Senior Member R Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Protection visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – repeated violent offending and numerous traffic offences – traumatic childhood – drug use and schizophrenia – currently living in the community on a Bridging (Removal Pending) visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Minister for Home Affairs v Buadromo [2018] FCAFC 151
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

Uelese v Minister for Immigration and Border Protection [2015] HCA 15 (6 May 2015)

SECONDARY MATERIAL

Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member R Bellamy

12 January 2024

1. The Applicant was born in 1992 in Afghanistan. He is a Shia Muslim of Hazara ethnicity. In 2009, when he was seventeen years old, he came to Australia as an unlawful maritime arrival. He was subsequently granted a Protection visa (“PV”). His visa was cancelled due to criminal offending, and he has asked the Tribunal to revoke that cancellation.

2. Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister must cancel a visa that has been granted to a person if:

   ·the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and

   ·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

3. Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

4. In December 2016, the Applicant was sentenced to seven years imprisonment. In 2016, while the Applicant was serving that sentence, a delegate of the Minister (“the Respondent”) cancelled his visa, as the Act required, because he did not pass the character test and he was serving a fulltime custodial sentence.

5. On 15 April 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”). Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:

   The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)    that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

6. On 6 October 2023, the Respondent decided not to revoke the cancellation. On 9 October 2023, the Applicant lodged an application in this Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.

7. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the sole issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should set aside the original decision.[1]

   [1] Minister for Home Affairs v Buadromo [2018] FCAFC 151.

8. The hearing of this application was scheduled to take place on 19 and 20 December 2023. However, there was a delay with the expert psychological report from Dr Jacqueline Yoxall and it ended up being provided on 18 December 2023. The Applicant’s legal representative, who acted pro bono, flagged this and asked for the hearing to be postponed so the Tribunal could consider the report. Section 500(6J) of the Act effectively provides that in a review by the Tribunal of a decision made under s 501CA(4) relating to a person in the migration zone, the Tribunal cannot have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least two business days before the Tribunal holds a substantive hearing. However, Uelese v Minister for Immigration and Border Protection [2015] HCA 15 (6 May 2015) is authority that the Tribunal holds a hearing on each day of a hearing. Accordingly, the Tribunal could have regard to Dr Yoxall’s report on 21 December 2023 even if the hearing commenced earlier. The Tribunal postponed the hearing so that it took place on 20 and 21 December 2023. The Tribunal appreciates the Respondent’s co-operation on this issue.

9. Since late November 2023, the Applicant has been living in the community under a Bridging (Removal Pending) Visa (“BVR”). He attended the first day of the hearing in person but elected not to give evidence. The Applicant was unable to arrange for Dr Yoxall’s attendance to give oral evidence and no other witnesses gave evidence. The Tribunal received the written evidence and submissions that are listed in the attached exhibit list, marked “Annexure A” and heard oral submissions made on behalf of each party.

10. As the Applicant elected not to give evidence, it was not possible to put certain evidence to him so he could accept, dispute or explain it. I have accepted evidence adverse to the Applicant where it appears to be reliable and plausible.    

    Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

11. In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.

12. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, may be summarised as follows:

    ·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

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

    ·The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    ·Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    ·With respect to decisions to refuse, cancel, and revoke cancellations of a visa, however, Australia generally may afford a higher level of tolerance of criminal or other serious conduct by non­citizens who have lived in the Australian community for most of their life,  or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    ·Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in Expectations of the Australian Community is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

13. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

14. Paragraphs 8 and 9 of the Direction sets out five Primary Considerations and four Other Considerations that the Tribunal must take into account. The mandatory considerations relevant to this application are:

    Primary Considerations

    ·     Protection of the Australian community from criminal or other serious conduct;

    ·     Strength, nature and duration of ties to Australia;

    ·     Expectations of the Australian community.

    Other Considerations

    ·     Legal consequences of the decision.

15. The other mandatory considerations are not relevant because there is no evidence that the Applicant has engaged in family violence or that the outcome of the decision would affect the best interests of any minor children, any victim of the Applicant’s crimes or any business interests in Australia. Further, it is not possible to assess the impediments the Applicant would face if returned to Afghanistan because in the current circumstances he cannot be returned as he has been assessed as being at real risk of persecution in Afghanistan, and that would only change if circumstances in Afghanistan were to change.   

16. Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations.[2] Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

    [2] This leaves open the possibility that in some cases Other Considerations can be given greater weight than Primary Considerations.

    BACKGROUND AND OFFENDING

17. The Applicant was born in Afghanistan. I accept that when he was around ten years old, his throat was slashed by the Taliban and he was left for dead. After receiving medical treatment, he fled to Iran with his uncle and worked as a shepherd. I accept that back in Afghanistan, his father was shot by the Taliban, although in one account reportedly given by the Applicant, his father was shot and killed before the Applicant’s throat was slashed[3]. I do not think that the differences in the details of accounts the Applicant has given of these events are significant. They show, I think, a degree of difficulty communicating clearly. English is not the Applicant’s first language.

    [3] Exhibit G, Section 501 G-documents, G20, pages 110 to 116; Exhibit R2, Respondent’s Tender Bundle, TB6, pages 208 to 210.

18. In 2016, the Applicant told a psychiatrist, Dr Butler, that while in Iran he worked as a shepherd and his uncle helped him save money which enabled him to travel to Australia by boat. In early 2009, he had returned to Afghanistan, but due to the ongoing dangers to Hazara Shias, he fled to Pakistan before making his way to Australia. In December 2009, he was granted a PV. He travelled by plane from Afghanistan to Malaysia, then to Indonesia, then to Australia by boat in October 2009.[4]

    [4] Exhibit G, Section 501 G-documents, G26, pages 159 to 161.

19. The Applicant did not receive any schooling in Afghanistan or Iran, and he cannot read or write in any language. The Applicant’s work in Iran was described on his behalf as child labour, but there is no evidence that he experienced any abuse, exploitation or harsh conditions involved. In Australia, the Applicant was employed for around seven months at an abattoir in 2010. Otherwise, he relied on Centrelink. According to Dr Yoxall, he now speaks conversational English, but I accept that for most of his time in Australia he could not communicate adequately in English and that this, in addition to his lack of education and cultural differences, made life here difficult.  

20. The Applicant has never held a driving license, yet he committed 21 traffic infringements between June 2010 and April 2013. Those included drink driving, failing to stop at a stop sign, crossing solid double lines, and multiple instances of driving without a license, driving without displaying L-plates and without a person with an open license seated beside him, and speeding by at least 13kmph but less than 20kmph.[5] Some of these infringements must have involved a police officer stopping and interacting with him, as opposed to a notice received in the mail after a camera-detected infringement. I accept that the Applicant was relatively new to Australia and there was a language barrier, however, despite having been pulled up by police, he kept offending, which indicates a lack of interest in complying with Australian road rules.         

    [5]  Exhibit R2, Respondent’s Tender Bundle, TB1, pages 4 to 7.

21. The Applicant first tried alcohol and cannabis at age 19, which would have been in 2011. He consumed those substances each fortnight after he got his Centrelink benefit. He could smoke up to five joints in a day on at least three days each fortnight and drink six to eight standard drinks in one session.[6] He denied having used any other drug except for methamphetamine on one occasion. He told Dr Yoxall that cannabis elevated his mood and reduced his feelings of stress and worry.

    [6]  Exhibit G, Section 501 G-documents, G18, page 99.

22. The Applicant’s first recorded criminal offence was “contravene direction or requirement” which he committed in May 2012. He failed to produce identification when directed to by the police.[7]  

    [7]  Exhibit R2, Respondent’s Tender Bundle, TB3, page 18.

23. Later that year, in December 2012, the Applicant committed a serious assault against a police officer, and he refused to supply his name and address. The police had been tasked to keep the peace while the Applicant moved out of a property at the request of other residents. When inside a small kitchen area, the Applicant took a large steel carving knife from the drawer, made eye contact with “Constable H”, slowly extended the knife towards Constable H, and began to move towards him. The Applicant was approximately one metre away from Constable H at this time and easily within striking distance. Constable H and another officer drew their firearms and repeatedly yelled to the Applicant to drop the knife, but he advanced another step with the knife pointed at Constable H’s abdomen. Constable H could not withdraw due to the cramped conditions of the apartment. Upon being told again to drop the knife, the Applicant bent down and let go of the knife. The Applicant refused to give his name and address even after being told that was it was an offence to refuse to provide that information.

24. Afterwards, the Applicant was interviewed with the assistance of an interpreter. He claimed he was intending to cut the wires of the washing machine located in the kitchen area, which he owned, so the remaining residents could not use it.[8] In December 2023, the Applicant told Dr Yoxall that the police had told him that he had to move out of his residence which made him confused and upset. They would not let him take his washing machine and he became angry at the thought that his flatmate would be able to use it while he would not. He picked up a knife and took it to the washing machine with the intention of cutting off the plug. One of the police officers was standing near the washing machine and he did not realise until it was too late, that the police thought he was going to use the knife on them. He tried to explain this to the police, but he could not adequately express himself in English.

    [8]  Exhibit R2, Respondent’s Tender Bundle, TB3, pages 26 to 29.

25. However, the Applicant’s actions in looking directly at Constable H, pointing the knife at him, and advancing towards him, are not consistent with him simply intending to go to the washing machine to cut the cord. The police did not accept his explanation, and the Applicant’s subsequent conviction for assault is not consistent with his explanation. I am satisfied that the Applicant deliberately threatened Constable H with a knife (which is what constituted the assault) while Constable H was performing his duty as a police officer, and that he briefly continued to make that threat even after the police drew their weapons and told him to put the knife down.    

26. The day after this incident, the Applicant breached a bail undertaking.

27. I have before me a treating doctor’s report from Dr Mark Schramm, a psychiatrist with the Prison Mental Health Service, dated 11 May 2021.[9] Dr Schramm treated the Applicant from 2017 until he was transferred to immigration detention in June 2021, and he appears to have had access to records pre-dating that period. Dr Schramm indicated that the Applicant had been in contact with community mental health services, principally the Homeless Health Outreach Team (“HHOT”) since January 2013. He had reported voices in the context of multiple social stressors and presumed use of cannabis. In April 2013, he had been admitted to Logan Hospital for four days, suffering from persecutory delusions and voices. This was followed by the HHOT making some attempts to engage the Applicant, but it was difficult.

    [9] Exhibit G, Section 501 G-documents, G19, pages 107 to 110.

28. In April 2013, while on bail, the Applicant committed trespass – entering or remaining in dwelling or yard. In June 2013, he was fined for that. For the offence against Constable H, he was convicted of serious assault police armed/pretend to be armed with dangerous/offensive weapon/instrument and given a suspended sentence of imprisonment (six months) with a good behaviour period of 12 months.

29. Also in June 2013, according to Dr Schramm’s report, the Applicant was admitted to hospital for a week as he was floridly psychotic and reporting auditory hallucinations including one commanding him to eat glass (which he did). He was discharged on an Involuntary Treatment Order.

30. In July 2013, less than a month after being given a suspended sentence, the Applicant stole $75 worth of gaming chips from another gambler at a casino. In August 2013, he was found in possession of dangerous drugs. According to Dr Schramm, he was started on monthly depot antipsychotic medication. In September 2013, the Applicant was found in possession of dangerous drugs and utensils. He was fined and put on a good behaviour bond for four months with drug diversion.  

1. According to Dr Schramm, in the latter half of 2013, the Applicant was followed up by various HHOT offices. He continued to report voices and he was reluctant to take depot medication. In December 2013, he was taken off the Involuntary Treatment Order as he appeared well, and it was thought that he had been suffering from drug induced psychosis. Dr Schramm opined that this was a misdiagnosis, and that the Applicant suffered from a schizophrenic illness that occurred with a background of substance abuse and traumatic events in his homeland. The Applicant dropped out of treatment, and he had only one brief contact with mental health services, in March 2014, before the index offending. By that time, he had been off medication for around eight months. 

2. In August 2014, the Applicant committed the offence that resulted in his visa being cancelled. The Tribunal must accept the essential facts of the offending that were accepted by the learned sentencing Judge,[10] and I have no difficulty doing so. As the Applicant has, in recent years, given differing accounts, it is helpful to include, by way of context, the salient parts of the initial police account and the agreed Statement of Facts.

   [10] HZCP v Minister for immigration and Border Protection [2019] FCAFC 202

3. According to the police notes, the Applicant approached the victim in the street. He confronted him about an alleged assault that that had occurred three days earlier, asking the victim why he assaulted him. The Applicant then produced a knife from his pants pocket. The victim, seeing the knife, attempted to run away. The Applicant grabbed the victim and stabbed him in the groin area. He later told the police in an interview that he was angry about being assaulted, and he went searching for the persons who assaulted him to “Fuck them up and kill them” because they had tried to kill him. He said if he had a gun, he would shoot the victim at point blank range to kill him, and he would then shoot himself to kill himself because he would not want to go to jail for killing someone. He showed no remorse for his actions.

4. An agreed Statement of Facts was tendered for the purpose of sentencing the Applicant for grievous bodily harm with intent to maim and possession of a knife in a public place.[11] It states that the victim was walking along a road with his cousin towards a friend. He felt a hand on his left shoulder, and he motioned to run but he felt a sharp, stinging pain in his groin area as he ran off. He looked behind and saw the Applicant holding a knife. A friend, who was sitting outside a shop further down the road, saw the Applicant walk around some parked cars and approach the victim from behind. He saw him grab the victim’s left shoulder with his left hand and strike him with his right hand in an upper-cut motion around four times. He thought the victim was struck twice and had broken free and started to run by the third and fourth strikes. He saw the Applicant was holding a knife. He asked him why he had stabbed the victim. The Applicant said “If anyone comes near me I’ll stab them. I don’t give a fuck”. When he was arrested he said “Yes, but those three did this to me last week” while pointing to a laceration on his forehead that contained sutures.

   [11]  Exhibit R2, Respondent’s Tender Bundle, TB5, pages 206 to 207.

5. The learned sentencing Judge made the following findings of fact after the Applicant pleaded guilty. The victim was in a group of people who had previously assaulted the Applicant. The assault resulted in some stitches to his forehead. The Applicant happened to come across the victim walking along the street and decided to take revenge. He came up behind him, grabbed him by his shoulder to brace himself and stabbed him a number of times in the area of his groin. One of the blows went through the victim’s clothing and penetrated the perineum – that is, the area between the penis and the anus, causing a 15 centimetre deep cut, which was three centimetres long. The victim ran to a Centrelink office to seek help. A witness confronted the Applicant who said “If anyone comes near me, I’ll stab them – I don’t give a fuck.” The victim had emergency surgery to tie off two small bleeding arteries.  

6. Following this offending, the Applicant was arrested and remanded in custody. He was put on the antipsychotic Olanzapine and an antidepressant. Prison records indicate that the Applicant generally behaved well in prison, with a handful of transgressions. In October 2014, he lost privileges for three days because of an incident, and during that period, he was abusive and used profanities towards staff. The next month, he was caught smoking in the exercise yard. The author of that report smelt the cigarette and saw the Applicant throw the end of the cigarette away. The Applicant claimed he was not smoking and was just sitting on the chair. In January 2015, the Applicant was found with contraband, being a rolled-up tea-bacco cigarette, two batteries, a piece of foil and two razor blades. The next month, he was involved in a minor altercation.[12]

   [12] Exhibit R2, Respondent’s Tender Bundle, TB4, pages 67 and 188.

7. By 2015, it was clear to the Prison Mental Health Service that the Applicant was psychotic. He was reporting voices sounding like hallucinations and he was preoccupied with what seemed to be delusional ideas regarding a person called “David Brown” who was “controlling everything”.[13]

   [13]  Exhibit R2, Respondent’s Tender Bundle, TB6, page 208; Exhibit G, Section 501 G-documents, G20, pages 111 to 116.

8. In October 2016, Dr Butler assessed the Applicant. The Applicant told him the hallucinations stopped in 2015 several weeks after commencing Olanzapine, and he denied having any significant symptoms of depression or anxiety. He denied ever having contemplated suicide. He said the voices began in 2013. He described it as one voice that spoke to him and would tell him to get a job and to do other daily activities. He said that the voice, whilst annoying, was not derogatory or threatening and did not instruct him to harm himself or others. According to him, they ceased when he started the monthly injections, and he continued with that treatment plan for approximately five months until an acquaintance told him that he could suffer serious consequences from the medication whereupon he stopped the treatment and cut off contact with the mental health service. He was not sure if the voices had returned before his incarceration. He did not think cannabis caused him to feel paranoid or to hallucinate.

9. The Applicant told Dr Butler that three days before the index offence he had gone to a residence to buy drugs and the deal went wrong. He became angry, was assaulted by three men, lost consciousness and awoke covered in blood. He had a large laceration to his forehead and his scalp. Over the following days, he was worried that if he went out, he might encounter the people who attacked him, and they might want to kill him. He saw one of them approach him in the company of another person and an altercation ensured. He produced a knife, and he stabbed the victim in the leg. He denied having restrained the victim or having intended to kill him. This account of the attack is inaccurate, and all of the inaccuracies favour the Applicant. This was the first time the Applicant gave an account where the victim approached him and he acted in self-defence rather than in retaliation. It is a narrative he maintained, in one form or another, throughout his incarceration and in these proceedings.   

10. Dr Butler was of the opinion that the Applicant was not actively experiencing auditory hallucinations at the time of the offending, and even if he was, they did not influence his behaviour. He opined that the Applicant would have understood, to some extent, that he ought not to have committed the offence. He did not think the Applicant was deprived in any way of the capacity to understand what he was doing or to control his behaviour. He believed that the alleged assault three days prior to the stabbing caused the Applicant to become apprehensive, agitated, and fearful. He thought that to some extent the life-threatening assault in Afghanistan provided the template upon which any additional assault would readily reactivate a fear-driven response. Therefore, when the Applicant was confronted with one of his assailants, he went into a defensive mode which resulted in an aggressive response as he considered he was likely to potentially face another assault. Dr Butler concluded that the Applicant was not, by inclination, an aggressive or predatory person and he was not given to engaging in impulsive or reactive violence. He thought the risk of reoffending in a similar manner was extremely low.

11. It is important to note that this conclusion is based on an account of the offending in which the Applicant was approached and acted in self-defence. This undermines Dr Butler’s opinion that the Applicant went into defensive mode, was not given to engaging in impulsive or reactive violence, and that there was an extremely low risk of further offending of that kind. Further, there is no mention of the Applicant’s criminal history or of the serious assault against a police officer in Dr Butler’s report which suggests that he was not aware that the Applicant had previously threatened a police officer with a knife.

12. The Applicant’s lawyer contended that even if Dr Butler’s conclusions are undermined, there is other evidence that shows the Applicant was not, by inclination, an aggressive or predatory person and he was not given to engaging in impulsive or reactive violence. I will address this further in my analysis under Primary Consideration 1.

13. In December 2016, when the Applicant was sentenced in relation to the stabbing offence, the learned Judge described the offence as very serious. His Honour noted that the Applicant was lucky that further injury and more serious injury was not caused. His Honour told the Applicant:

    “This type of offence simply cannot be accepted by any civilised community. You were very lucky to have been given refugee status here in Australia. So many refugees around the world would like to have had the opportunity you were given and can’t get it. You then treat the generosity of the Australian community by committing offences like this. People who come here from other countries need to know that we, as a society, do not tolerate people taking the law into their own hands. We cannot condone personal revenge.”[14]

    [14]  Exhibit G, Section 501 G-documents, G6, pages 41 to 42.

14. His Honour took into account the Applicant’s background in Afghanistan, including the murder of his father, the attack on him, and his psychiatric illness, and sentenced him to imprisonment for seven years which included the time he had already served on remand.   

15. In March 2017, the Applicant was interviewed for the purpose of a security classification. The security classification assessment report noted that the Applicant showed no remorse for his violent actions and attempted to minimise the crime, saying he only stabbed the victim “a little-bit”. When challenged on this, he said he had only tried to scare the victim.[15]

    [15]  Exhibit R2, Respondent’s Tender Bundle, TB4, page 85.

16. Dr Schramm treated the Applicant for four years in prison, seeing him around once per month between 2017 and May 2021. He described the Applicant as mostly settled during that period, but periodically troubled by distressing hallucinations. It appears that the Applicant had been denying such symptoms despite their persistence, and eventually told Dr Schramm that other than a few months here and there, he had been having them to some degree or other since 2013. He did not think the Applicant had necessarily deliberately concealed the symptoms. The Applicant described the voices as incessant and distressing at times and said that there were associated delusional ideas, including a belief that whoever is speaking with him is reading his thoughts. Dr Schramm did not think the Applicant behaved in a way driven by them. He was nearly always compliant with medication, often asking for extra to help him sleep, but there had been several occasions when he stopped his medication because he felt better, not appreciating the need to take medication as preventative measure despite Dr Schramm’s attempts to educate him about his mental illness.

17. Dr Schramm described the Applicant’s condition as a chronic, permanent illness that had responded partially to medication. He thought the Applicant had limited insight into his illness and that he would almost certainly relapse into a more severe psychosis if non-compliant with medication.

18. In September 2018, the Applicant completed Options: Recovery from Substance Abuse and Adult Resilience.[16]

    [16]  Exhibit G, Section 501 G-documents, G23, page 150 and Exhibit G, Section 501 G-documents, G24, page 151.

19. In May 2019, the Applicant failed to comply with a direction on several occasions. He had to be physically restrained and a staff member suffered a grazed arm.[17]

    [17]  Exhibit R2, Respondent’s Tender Bundle, TB4, pages 167 and 170.

20. In correspondence to the Parole Board in September and December 2019, and in April 2020, the Applicant described the index offending as self-defence.[18] In October 2020, he told the Parole Board that he had retaliated after having been attacked and that he was sorry he “may have caused distress to the victim”.[19]

    [18]  Exhibit R2, Respondent’s Tender Bundle, TB4, pages 144, 149 and 155.

    [19]  Exhibit R2, Respondent’s Tender Bundle, TB4, page 140.

21. In April 2021, the Applicant requested revocation of the cancellation of his visa.[20] In his request, he said of the index offending:

    “I saw [the victim] on the day of my offending and was scared, thinking he was coming to attack me. I panicked and attacked him. It was not right to do this. I now understand it was wrong”.22

    [20]  Exhibit G, Section 501 G-documents, G8, pages 46 to 49.

22. The revocation request included a document entitled “Form 29 Parole Application Support Plan”[21] in which the Applicant described the index offending as his first and only offence in his criminal history, which was not correct. He said that after he was attacked by the victim, he was worried he would be attacked if he left his home, but after a few days he went to a doctor and got stitches. He claimed he took a knife with him “to feel safe”. Outside the train station, he saw the victim and another man walking towards him and he became afraid they were going to attack him. He pulled out his flick knife and stabbed the victim “in the leg”. He said “I was worried about my safety and just wanted to protect myself”. He said in future he would call the police, which was something that had not previously crossed his mind. 

    [21]  Exhibit G, Section 501 G-documents, G22, pages 137 to 149.

23. The very next month, in May 2021, the Applicant was involved in an altercation with another prisoner that resulted in the other prisoner sustaining a cut on his lip.[22] The Applicant admitted to striking the prisoner but claimed it was self-defence.[23] There is no evidence to corroborate that it was indeed self-defence, and the fact that the Applicant has repeatedly characterised the index offending as self-defence undermines the plausibility of his characterisation of other violence he has engaged in as self-defence.

    [22]  Exhibit R2, Respondent’s Tender Bundle, TB4, pages 159 to 163.

    [23]  Exhibit R2, Respondent’s Tender Bundle, TB3, page 129.

24. In June 2021, the Applicant was granted parole and transferred to immigration detention. The Applicant told International Health and Medical Services (“IHMS”)  staff that he was well and did not need counselling or therapy.[24]

    [24]  Exhibit G, Section 501 G-documents, G26, page 161; Exhibit R2, Respondent’s Tender Bundle, TB6, page 209.

25. In October 2021, the Applicant attempted to punch another detainee in the face, over a disagreement relating to cigarettes.[25] In November 2021, the Applicant was involved in a physical altercation with another detainee.[26] IHMS notes indicate that the Applicant claimed that he was assaulted by a detainee who had been bullying him (joking in an abrasive way, calling him mother f-cker and pinching his chest through his shirt) for some time. The Applicant had finally had enough and they fought. He was struck in the face, which loosened his two bottom teeth and left a bruise on his forehead. However, the IHMS records noted that the Applicant’s account did not accord with CCTV footage.[27] I am satisfied that the Applicant punched another detainee and it may or may not have been a response to aggravating behaviour by that detainee.  

    [25]  Exhibit G, Section 501 G-documents, G35, page 411.

    [26]  Exhibit G, Section 501 G-documents, G35, page 410.

    [27] Spencer 11 October 2023.

26. In May 2022, the Applicant was verbally abusive and belligerent towards staff, and he damaged a glass pane in his accommodation while subject to quarantine restrictions.[28] In July 2022, another detainee pushed the Applicant and the Applicant retaliated by punching him in the nose. Officers had to separate the Applicant and the other detainee, and they were both told to cease all hostility and aggression towards each other.[29]

    [28]  Exhibit G, Section 501 G-documents, G35, page 409.

    [29] Exhibit G, Section 501 G-documents, G35, pages 408 to 409; Exhibit R2, Respondent’s Tender Bundle, TB7, pages 268 to 269.

27. In all the accounts of violent behaviour by the Applicant since April 2021, there is no evidence that he ever asked for the assistance of prison guards or detention centre staff during altercations. This tends to undermine his claim, in relation to the index offending, that in future he would seek police assistance rather than handle the situation the way he did.  

28. In January 2023, the Applicant called detention centre staff c-nts and mother-ckers because the kitchen was out of spring rolls, and he threatened to stab staff twenty times if they checked on him during the night.[30]

    [30]  Exhibit R2, Respondent’s Tender Bundle, TB7, pages 278 to 281.

29. The Applicant had six sessions with an IHMS psychologist between April and June 2023. According to a report by that psychologist, the Applicant’s account of the index offending was that people attacked him, stabbed his face and head, and took $400 from his pocket. After three days, a friend took him to a GP to suture his wounds. On the way home, the group tried to attack him again, and he stabbed the victim in the leg in self-defence causing a minor injury. The report noted that the Applicant was currently on high doses of both Aripiprazole and Olanzapine, which had been increased gradually over time, and that attempts to reduce the dosage had resulted in relapse of hallucinations. The Applicant had apparently engaged well in treatment and impressed as strongly motivated. He indicated that he wished to continue with psychological treatment

30. Dr Jillian Spencer, who is a psychiatrist with IHMS, made periodic notes from mid-2021 in which she indicated that the Applicant’s mental health had stabilised. His schizophrenia was described as being in remission and he was compliant with his medication, although in September 2021 he threatened to stop taking it if he did not get his visa back and in April 2022 he told IHMS staff he would not take his medication.[31] It appears that he did keep taking it under supervision.  

    [31]  Exhibit R2, Respondent’s Tender Bundle, TB6, pages 208 to 210.

31. In November 2023, the Applicant completed Anger Management 101[32] and he was participating in the SMART recovery program.

    [32]  Exhibit A2, Applicant’s Tender Bundle, AM2, page 3.

32. On 21 November 2023, following the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37[33] the Applicant was granted a BVR and released to the community. He has been living with a supportive friend. The BVR is subject to strict conditions. There are no reports that the Tribunal is aware of that the Applicant has breached those conditions or committed any offences since he has been back in the community.   

    [33] Reasons given on 28 November 2023.

    PRIMARY CONSIDERATION 1 - PROTECTION OF THE AUSTRALIAN COMMUNITY

1. Paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence.

2. In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:

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

   b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

   The Nature and Seriousness of the Applicant’s Conduct to Date

3. Relevant to assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, the direction deems that violent crimes are very serious and that crimes committed against government representatives or officials in the performance of their duties are serious. In addition, the following factors are relevant to this assessment:

   ·the sentence imposed by the courts (for offences not already deemed to be serious or very serious);

   ·the frequency of the offending and whether there is any trend of increasing seriousness; and

   ·the cumulative effect of repeated offending.

4. The serious assault against Constable H is, according to the Direction, serious as it is an offence against a police officer in the performance of his duty. While Constable H was not physically injured, he was at real risk of being stabbed in circumstances where it was difficult or impossible for him to move out of harm’s way. A threat to harm a police officer in the performance of his or her duty is an attack on the criminal justice system, which is a system that exists to protect the community. Furthermore, it is behaviour that is all too common and that police officers should not have to endure.

5. While I am not required to take into account the penalty imposed for this offence when assessing its seriousness, I note that the court imposed a suspended sentence of imprisonment. A custodial sentence is the last resort in the hierarchy of available penalties for criminal offending. A suspended sentence, with a good behaviour period attached, is only one transgression away from a period of custody. The sentence imposed indicates that the court considered this offending to be serious.

6. The harm from further offending of this nature includes immediate psychological trauma and possible longer term psychological harm.   

7. The index offending, being a violent offence, is very serious. It is a gruesome crime that was pre-meditated. The Applicant chose to carry a knife with him. He chose to approach the victim, restrain him, and stab him multiple times. One stab wound punctured a very delicate area. That area is not easily accessed when a person is standing up, and the witness described upward thrusts, so I infer that the Applicant meant to stab the victim there. He pushed the knife in a long way: the wound was 15cm deep and 3cm wide. There is not any information before me about whether the victim suffered permanent damage or disfigurement, but clearly there was a real risk of that given the location and depth of the wound.  

8. I note that the court imposed a penalty of seven years imprisonment even after taking into account factors in the Applicant’s favour such as his unfortunate childhood, his mental illness and his plea of guilty. The severity of the penalty is an acknowledgment of the grave seriousness of this offending.

9. Further offending of this kind could cause physical and psychological injury and even death depending on where the stab wounds are inflicted on the victim’s body.

10. The Applicant committed 21 traffic offences between 2010 and 2013. There is no evidence that these offences resulted in harm. He did not address this offending in the written evidence he put forward. Some infringements, such as drink-driving and crossing solid double lines, tend to make roads less safe for road-users and pedestrians. These and other infringements occurred in the context of the Applicant never having obtained a license, i.e. never having satisfied the authorities that he was competent enough to be allowed to drive unsupervised on public roads. His history of traffic infringements weighs against him. The harm from further traffic infringements of the kinds he previously committed includes possible injury and death to road users and pedestrians.    

11. The Applicant committed some offences involving personal use of cannabis. It is possible that his drug use led to him committing trespass and theft, although there is no evidence about that one way or the other. There is no evidence that his drug use directly led to the commission of other offences that harmed the community or that it would in future.    

12. The Applicant committed two offences involving the wielding of a large knife. As the second involved actual wounding, there is a clear trend of increasing seriousness. The cumulative effect of the Applicant’s repeated violent offences and traffic offences is that the community was made less safe, extremely so for the victim of the stabbing. 

13. The nature and seriousness of the Applicant’s offending to date weighs heavily against revocation of the cancellation of his visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

14. I must have regard to the following relevant factors on a cumulative basis:

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

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.

15. I should also have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[34]

    [34] Paragraph 8.1.2(1) of the Direction.

16. I have identified the types of harm from further offending of the sort the Applicant has previously engaged in, being violent and threatening behaviour, drug use and traffic offending. I have no reasons to find that he would engage in other categories of offending or serious conduct. The risk of harm from a further knife attack like the one the Applicant committed is an unacceptable one.

17. The Applicant has shown a preparedness to break the law and to use a knife to threaten harm and to do harm. He committed the assaults two years apart and the second assault was more serious than the first indicating that a period of non-violent behaviour does not necessarily signal reform. Assessing the risk of further threatening or violent behaviour involves identifying the factors that contributed to the offending and determining whether they have been adequately addressed.   

18. I accept the contention made on behalf of the Applicant that he likely suffered from schizophrenia for a period before he came to the attention of mental health services in January 2013. It is therefore likely that all of the offending involving knives was committed after the onset of his mental illness. However, there is no evidence from the Applicant or from witness accounts of those two incidents that indicates that he was experiencing disordered thoughts, paranoia, delusions or hallucinations when he committed those offences. Further, the Applicant told Dr Butler that voices did not instruct him to harm others, and Dr Schramm opined that the Applicant did not behave in a way that was driven by hallucinations. Dr Butler opined with respect to the index offending that the Applicant was in control of his actions and he knew right from wrong.

19. Dr Yoxall interviewed the Applicant by videoconference on 15 December 2023 for the primary purpose of conducting a risk assessment. Her assessment involved the application of some actuarial risk assessment tools. Her overall conclusion was that there was a low to moderate risk of general re-offending that could be managed through management of mental health and prevention of relapse to drugs, along with social support. Further, there was a low risk of violent reoffending that was directly related to the management of the Applicant’s mental health (compliance with medication and overall treatment) and abstinence from drugs. The Respondent contended that, given the whole of the evidence, the Tribunal should not accept that there is only a low to moderate risk of re-offending and should instead find that there is at least a moderate risk.

20. There are some difficulties with Dr Yoxall’s report because she did not take account of some pertinent information (most of which was not available to her) and she accepted the Applicant’s explanation for the two assaults at face value. That is, she appears to have accepted that he was merely taking a knife to the washing machine to cut the electrical cord, and he committed the index offence because he was afraid the victim would attack him again and he panicked. She did not push him to explain why he was carrying a knife with him. Consequently, she appears to have treated the index offending as an isolated, spontaneous event rather than a pre-meditated escalation of violent offending involving knives.

21. Dr Yoxall thought it was significant that the Applicant had been of good behaviour in prison and detention, however she did not have access to the reports of poor behaviour because those were not available to the parties at the time she was briefed to provide her report.[35] While prison and IHMS records indicate that for the most part, the Applicant was well behaved and courteous, there were a handful of incidents when the Applicant was violent or threatening. These occurred despite the Applicant being compliant with medication for his mental health.

    [35] This often happens due to very short statutory time limits in these maters but can normally be cured by an Applicant disclosing the information in the interview or by the information being put to the expert when they give oral evidence in the hearing.   

22. Relevant to these points, Dr Yoxall thought the Applicant demonstrated a sound degree of personal insight and did not have a history of impulsive behaviour. This lowered his score on one of the risk assessment tools she applied. Had she had the full facts of his offending and the incidents in custody, she may not have come to these conclusions and his score may have been higher. 

23. Dr Yoxall identified some factors that she thought primarily contributed to the index offending, being drug dependence, exaggerated threat perception and reactivity due to prior trauma, and compromised executive function due to schizophrenia. Dr Yoxall did not explain how the Applicant’s cannabis use contributed to the offending or how the Applicant’s mental illness compromised his executive function in a way that contributed to the offending. Despite this, I am mindful that Dr Yoxall is an expert in the field of risk assessments pertaining to criminal offending. I accept that, even though it does not appear that the Applicant was affected by drugs or florid schizophrenia symptoms when he committed the index offence, the context of drug use and schizophrenia in which the offence was committed likely compromised his ability to exercise good judgment and restraint. I note that when he pointed a knife at a police officer, he did ultimately exercise good judgment and restraint by putting the knife down when guns were pointed at him.   

24. With respect to exaggerated threat perception, Dr Yoxall accepted that the Applicant had experienced war and conflict in his home country, constant threat of death or torture to himself and others in the community, a murder attempt when he was 10 years old, the loss of connection to his family, the subsequent murder of his father, and the voyage on a boat to Australia. She thought that because of the past attack on him, his threat perception would have been excessively heightened by the attack three days before the index offending, and he would have been more prone to overreact when he saw his attacker again. While the Applicant did not give evidence, his instructions to his lawyer were that he acted out of revenge, fear, and self-defence. When asked what he meant by revenge, he said he was very scared the men were going to attack him again, seeming to conflate fear and retribution.  

25. Dr Yoxall thought that the Applicant’s hyper-reactiveness had settled and:

    “he said that he realises that he is not required to take matters into his own hands as he might have needed to do in Afghanistan…he knows now that societal and legal requirements of Australia may vary to that of Afghanistan or Iran. He said that he knows now that he cannot take it upon himself to exact revenge or any form of injury upon another person. He said, ‘in Afghanistan, if someone attacked you like that, then when you see them again it would be okay if you attacked them…. But not here in Australia… I know that now….’”. 

26. The parties agree, and I accept, that the attack on the Applicant when he was a child resulted in hyper-sensitivity and hyper-reactiveness to danger, and that this played a part in the index offending. However, some of the incidents in detention show that his tendency to overreact has not settled. Further, his comments to attending police and Dr Yoxall indicate that he was at least partially motivated by a desire for retribution. I do not accept that, at the time of the index offending, the Applicant believed he was required or allowed to “take matters into his own hands” by attacking the victim as he did. At that time, he had lived in the Australian community for around five years and observed life here. He also had experience with the criminal justice system. In particular, he knew that the police officer he threatened with a knife did not exact revenge upon him. Rather, he charged him and left the courts to deal with him in an open, civilised, non-violent manner. If the Applicant acted the way he did because “in Afghanistan, if someone attacked you like that, then when you see them again it would be okay if you attacked them”, that shows a remarkable lack of insight, given his rejection of Afghanistan as a place to live, and a lack of appreciation for law and culture of the community that gave him safe haven. This was the thrust of what the learned sentencing Judge said to the Applicant when passing sentence.   

27. Dr Yoxall, appearing to accept the Applicant’s excuses, noted that he now speaks conversational English and has a better understanding of Australian law. She also thought he had not engaged in conflict with others in custody, which demonstrated an improvement in impulse control and emotional self-regulation. However, the Applicant did engage in conflict in custody.

28. Dr Yoxall thought the risk of violent reoffending was now primarily related to the Applicant’s ability to abstain from drugs and the management of his schizophrenia. I do not agree: the incidents in custody occurred when the Applicant was abstinent and compliant with medication. Further, not all of the aggressive incidents were reactions to perceived danger. His criminal history and custodial behaviour indicates a lack of respect for Australian laws and a preparedness to engage in aggressive behaviour separate to drug use, mental health symptoms and exaggerated threat perception. It is promising that the Applicant expressed remorse for the offending, relief that the injuries were not more serious, and he said that he should never have assaulted the victim but should have walked the other way. The question is whether his words reflect real change in his attitude.   

29. There is no evidence that cannabis use alone results in the Applicant committing offences except offences involving that use, e.g. drug possession. However, it may have played a part in the onset of his mental illness so further use could compromise his mental health. He has not used cannabis since his incarceration in 2014. In 2018, he completed a substance abuse course, and he was recently engaged in a SMART recovery program. He told Dr Yoxall that he had learnt his lesson and wanted to avoid any risk of relapse to psychosis, so he was adamant that he would not use alcohol or drugs ever again. He has been in the community since early November 2023 and there is no evidence that he has consumed drugs or alcohol. I am not concerned that the Applicant currently feels a physical or psychological need to use cannabis, alcohol, or other drugs.

30. The Applicant clearly needs to comply with his medication regime in order to manage his schizophrenia, and he has not always done so. The medical evidence indicates that even when he is compliant, he sometimes suffers symptoms, and that reducing his medication has previously resulted in psychosis. Dr Schramm was concerned in 2021 that the Applicant did not understand that even when he is well, he has to keep taking medication to prevent his mental health from deteriorating. Dr Schramm thought the Applicant would almost certainly relapse into a more severe psychosis if non-compliant.

31. The Applicant’s schizophrenia has been in remission for at least the last 18 months. However, in that time he has threatened to stop taking medication unless he got his visa back, refused to take his medication without a stated reason, and in October 2023, he wanted to reduce his medication. Dr Yoxall thought the structure and predictable aspects of prison, and the external control imposed upon the Applicant in terms of medication, may have had a positive impact on him in terms of management of his mental illness. He is now in the community without that structure.  

32. I accept that the Applicant is not predatory by nature or normally prone to impulsive or reactive behaviour. However, is sometimes. He has also demonstrated a preparedness to lie about, and minimise, his transgressions, for example when he denied smoking in the prison exercise yard and claimed he had not meant to threaten Constable H with a knife. What is particularly concerning is that since 2016, he has shown an unwillingness to grapple with the truth of the index offending. He variously characterised the offence as him stabbing the victim “a little-bit”, in the leg, in self-defence, to scare the victim, causing a minor injury, that “may have caused distress to the victim”. I am not satisfied that he accepts how serious and unacceptable his violent behaviour is, and therefore I am concerned that he has not done enough, and may not do enough, to change so he will not engage in such behaviour again.

33. As recently as June 2021, the Applicant told IHMS staff that he did not need counselling or therapy. He has since engaged in counselling with an IHMS psychologist but on the whole he has done very little to address his past trauma and preparedness to behave aggressively in some situations. In his revocation request, he said he would not use drugs again, and that he would stay away from people he does not know and not have arguments. He said “I will not get into any trouble again”. Yet, after that, in 2022 he was violent and threatening simply because he did not get what he wanted. I acknowledge that in November 2023, the Applicant completed an Anger Management course and he has expressed willingness to engage in counselling in the community.

1. The Applicant is currently living with a friend, “Mr A” and Mr A’s family. There are letters of support from Mr A and his wife before me. They have known the Applicant since 2009. He used to look after their children, and they consider him family. Mr A used to obtain the Applicant’s medication for him, and he is prepared to pay for it again. They stayed in touch with the Applicant throughout his incarceration. Mr A used to employ the Applicant in his tree-lopping business and is prepared to employ him again if his visa conditions allow it. Mr and Mrs A will provide any support the Applicant needs, and they will make sure he attends counselling and adheres to his visa conditions. Mr and Mrs A have never seen the Applicant act violently or aggressively and they were shocked when they found out he had gone to prison for violent crimes. Mr A’s ex-wife suffered from schizophrenia so he knows it is a serious illness and the importance of following doctor’s advice. Mr A paid Dr Yoxall’s fee for the report she provided which I see as tangible evidence of his commitment to helping the Applicant.  

2. A “Mr G” provided a letter of support in which he said he has worked with refugees including integrating refugees in host countries. He has known the Applicant for many years and is aware of his criminal history. He offered his assistance and mentorship to the Applicant.

3. A “Mr T”, who described himself as a community imam and chaplain, has known the Applicant since 2009 through the mosque as well as Mr and Mrs A. He provided a letter of support in which he said their religious community will provide support and moral instruction to the Applicant.[36] Mr A said the Applicant is well liked in that community and they are looking forward to having him back. Mr T undertook to offer counselling to the Applicant, including counselling on good behaviour, following the law, and discipline. He will counsel the Applicant away from drugs, alcohol and fighting (among other things). 

   [36] Exhibit A2.

4. I am satisfied that Mr and Mrs A and their local religious community will have a positive and stabilising influence on the Applicant. However, ultimately it is up to him whether he complies with his medication, abstains from substances, and engages in helpful counselling.  

5. Even with the support around him and his expressions of remorse and commitment to be law-abiding, I am satisfied that there is at least a moderate risk that the Applicant will, at some point in the future, engage in threatening or violent offences of the kind he has previously committed. There is very little evidence to inform me about the risk of further traffic offending. Given his record, and the absence of any targeted rehabilitation, I think there must be at least a material risk of further offending of that nature.

6. As the Applicant will remain in the community regardless of my decision, the question is: would the community be better protected from this risk of re-offending if he were to get his visa back? It was contended on the Applicant’s behalf that the answer is “yes” because a PV would give him access to supports under the National Disability Insurance Scheme (“NDIS”) which would reduce the risk of re-offending.

7. Under the BVR, the Applicant has access to a special payment from Centrelink which equates to $749.20 per fortnight, as well as access to Medicare and the Pharmaceutical Benefits Scheme (“PBS”). He has a case worker who helps him to connect to services like Centrelink, disability programs, and training and employment agencies. He can get a mental health care plan from his general practitioner which gives him a limited number of subsidised sessions with a psychologist. He also has access to counselling and mentorship from Mr G and Mr T. He can obtain subsidised medication through the PBS, although Mr A said that he would pay for the Applicant’s medication.

8. The Applicant does not have access to the National Disability Access Scheme (“NDIS”), but if he had a PV, he would be a permanent resident and therefore he would potentially have access to the NDIS. The Applicant has been diagnosed with a permanent psychiatric condition. It may well be that it causes him impairment/s that are likely to be permanent and meet the criteria for access to the NDIS. The Applicant’s lawyer put forward information obtained in response to a Freedom of Information request which indicated that between 2018 and 2022, 28,139 applications for access to the NDIS were made by persons with Schizophrenia. Of those 25,107 were found to be “Access Met”, and 3,032 were found to be “Access Not Met”. That is, 89% of applications were approved. Given this evidence, I think it is likely that he would be able to access support from the NDIS. An organisation called Amparo Advocacy Incorporated has confirmed by letter that it will provide advocacy on behalf of the Applicant if his permanent visa is reinstated. If granted, he will be assessed with respect to his needs.

9. It was not contended that the kind of supports that the Applicant may be able to access through the NDIS would directly address anti-social attitudes or behaviour. Rather, such support would help him to manage his mental health, engage with the community and function independently, and that these things would lower his risk of re-offending. It was submitted that a suite of tailored supports through the NDIS with a plan manager would be more comprehensive and reliable than “cobbled together” support that the Applicant would rely on in the absence of NDIS support. I accept that structured, consistent mental health support and a sense of connection and engagement with one’s community are the sorts of things that tend to encourage pro-social behaviour. I accept that as far as access to NDIS would lower the Applicant’s risk of re-offending, this would weigh in favour of him getting his visa back. However, like the supports that are available outside the NDIS, it is ultimately up to the Applicant whether he makes good use of them.     

10. The Respondent contended that the conditions attached to the BVR are more likely to reduce the risk of re-offending. The Applicant is aware that if he re-offends he could end up in gaol again, and this applies whatever visa he has. However, the BVR carries comprehensive conditions including reporting requirements, restrictions on certain kinds of employment, a curfew, a requirement to wear a monitoring device, and a prohibition on contacting the victim of his offending. The Act provides that it is an offence to, without reasonable excuse, fail to comply with certain conditions, attracting a minimum penalty of one year imprisonment and a maximum penalty of five years imprisonment. I am satisfied that these conditions, while not directly aimed at criminal conduct, are likely to be a continual reminder to the Applicant that he is under supervision, even though he is back in the community, and that his liberty depends on his cooperation with the government, which may have a deterrent effect with respect to anti-social and criminal behaviour.

11. The positive impact that NDIS support or the BVR conditions may have on the risk of re-offending, and which one would be more influential, is a matter of speculation. I do not attribute weight either way on this basis. However, given the unacceptable risk of harm to the Australian community posed by the Applicant, it is not appropriate for him to have visa that confers upon him the right to reside in Australia permanently. On this basis, I allocate some weight against revocation of the cancellation of the visa.    

12. Overall, Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 3 - STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

13. The Applicant does not have any family in Australia. Therefore, what remains to be considered under this Primary Consideration is the strength, nature and duration of any non-familial ties the Applicant has to the Australian community. In particular, if I find that he has been ordinarily resident in Australia during and since his formative years, that would warrant considerable weight in his favour regardless of when his offending commenced and the level of that offending. The length of time the Applicant has resided in Australia should be given more weight if he has contributed positively to the Australian community in that time. Less weight should be given if he was not ordinarily resident in Australia during his formative years and if he began offending soon after arriving in Australia.

14. The Applicant is 31 years old. He was 17 years old when he arrived in Australia. He has spent nearly half his life here. Formative years refers generally to the years in which a person’s character and values are formed. His character and values appear to have been shaped by his time in Afghanistan and possibly Iran, and I am not satisfied that he was in Australia during any of his formative years. He began committing traffic offences around a year after arriving in Australia, and he committed his first non-traffic offence around three years after arriving.

15. Mr A said the Applicant used to help out at the mosque, cooking for events and cleaning. I accept that the Applicant was engaged in gainful employment in the community for a short period and he worked in prison. I consider his contribution to the Australian community to be minimal. The Applicant has a small number of close friends and he is a valued member of his local mosque.      

16. As he has a BVR, it does not appear that the outcome of this application would impact anyone in the community (other than the Applicant) in any significant way.

17. This Other Consideration attracts modest weight in favour of revocation of the cancellation of the visa.

    PRIMARY CONSIDERATION 5 - EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

18. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[37] The interpretation of this expectation now has to be modified to acknowledge that the situation is now that the Australian community has to allow non-citizens with a protection finding to reside in the wider Australian community. The construction of this expectation since the introduction of BVRs must be that the Australian community would, as a norm, expect that a non-citizen in the Applicant’s position would not hold a visa other than a visa that was specially created for persons who are not otherwise entitled to a visa but who are owed protection.   

    [37] Paragraph 8.4(1) of the Direction.

19. The Direction goes on to say that non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of certain types of identified behaviour including the commission of crimes against government representatives or officials in the performance of their duties. This expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[38]

    [38] Paragraph 8.4(3) of the Direction.

20. Paragraph 8.4(4) of the Direction provides the following guidance on how the expectations of the Australian community are to be determined:

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

21. This approach is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.

22. The Applicant breached the Australian community’s expectation that he would obey Australian laws. In addition to consistently breaking traffic laws, he engaged in serious threatening and violent offending that included an offence against a police officer in the performance of his duties, and there is an unacceptable risk that he may commit further offences. Accordingly, the Australian community expects that the government would cancel his visa. This Primary Consideration must weigh against revocation of the cancellation of the Applicant’s visa.

23. The Applicant’s failure to adhere to the standard of conduct expected of him should be seen in context. It is not the case that he had an unremarkable or privileged upbringing and nevertheless chose to engage in crime. He experienced severe trauma before coming to Australia and he suffers from a serious mental illness. The language and cultural barriers he faced in Australia undoubtedly impaired his ability to get help. These factors, together, partly explain his offending. These matters moderate the weight that this Primary Consideration attracts. On the other hand, the Applicant’s offending as a whole displays a level of disregard for Australian laws and for the safety of other members of the Australian community.

24. The Applicant has spent a substantial portion of his life in Australia. His legal representative referred the Tribunal to paragraph 5.2 of the Direction which sets out the key principles that provide the framework in which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation. Sub-paragraph 5 provides that Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age, and the level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

25. The contention appeared to be that greater tolerance should be afforded to the Applicant because he has lived in Australia since he was 17 years old. I agree to the extent that the Applicant should be afforded more tolerance for his criminal and other serious conduct due to the length of time he has lived in Australia. The length of time he spent in Australia was taken into account in his favour under Primary Consideration 3. In the final weighing process, the weight allocated to Primary Consideration 3 will counterbalance (to an extent) the weight allocated against him under Primary Considerations 1 and 5 due to his criminal and other serious conduct. This is how the Direction operates to afford greater tolerance to a non-citizen according to the length of time they have spent in the Australian community.      

26. Primary Consideration 5 weighs moderately against revocation of the cancellation of the Applicant’s visa.  

    OTHER CONSIDERATION (A) - LEGAL CONSEQUENCES OF THE DECISION

27. As it is accepted that the Applicant is owed protection, he cannot be removed to Afghanistan. There does not appear to be any prospect of removing him to a third country. Nor could he remain in immigration detention if his detention would be indefinite. If his visa is not returned to him, he will remain in the community on a BVR for the foreseeable future. He will not have the benefits of a permanent visa, including the certainty that permanent residence entails and access to services such as the NDIS. This weighs in his favour. He will also be at risk of being imprisoned for doing things that people who are not on a BVR can do with impunity, for example being out late at night or changing address without telling the Respondent. This also weighs in his favour.  

28. This Other Consideration attracts moderate weight in favour of revocation of the cancellation of the visa.

    CONCLUSION

29. In the Applicant’s favour are Primary Consideration 3 and Other Consideration (a) which attract modest and moderate weight, respectively. They are outweighed by Primary Considerations 1 and 5 which weigh heavily and moderately, respectively, against revocation of the cancellation of the visa. The key factors here, which have been taken into account according to the Direction, are the seriousness of the Applicant’s offending and continuing risk of offending, the absence of any foreseeable risk of removal to Afghanistan or indefinite detention, and the government support available to the Applicant in the wider community on a BVR. There is not another reason to revoke the cancellation of the visa.     

    DECISION

30. The decision under review is affirmed.

I certify that the preceding 125 (one hundred and twenty five) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

............................[SGD].............................

Associate

Dated: 12 January 2024

Date of hearing:	12 January 2024
Solicitor for the Applicant:	Ms Victoria Lenton Lenton Migration Law Pty Ltd
Solicitor for the Respondent	Mr Alex Chan  Sparke Helmore

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G	G-Documents (G1 to G41) Total Pages 532	T	Various	17 October 2023
A1	Applicant's Statement of Facts, Issues and Contentions Total Pages 18	A	27 November 2023	27 November 2023
A2	Applicant’s Tender Bundle (AM1 to AM10) Total Pages 333	A	Various	27 November 2023
A3	Applicant’s Additional Tender Bundle (AM11 to AM13) Total Pages 53 (Tendered for hearing Day 2: 21.12.23)	A	Various	18 December 2023
R1	Respondent’s Statement of Facts, Issues and Contentions Total Pages 19	R	11 December 2023	11 December 2023
R2	Respondent’s Tender Bundle (TB1 to TB7) Total Pages 284	R	Various	11 December 2023