WKBF and Minister for Immigration and Multicultural Affairs - [2024] ARTA 23

Applicant:WKBF
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2023/6813

Tribunal:Senior Member A. Nikolic
Place:Melbourne
Date:13 December 2024

Decision:The Tribunal affirms the decision under review.

.................[SGD].......................................................
Senior Member A. Nikolic
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Ethiopia – where Applicant granted Class AY (Subclass 104) Preferential Family Visa – substantial criminal record – failure to pass good character test – mandatory visa cancellation – non-revocation decision – diagnosis of paranoid schizophrenia – guardian appointed – reviewable decision affirmed by previously constituted Tribunal – application remitted by Federal Court of Australia – whether another reason to revoke the mandatory cancellation of Applicant’s visa – Ministerial Direction no. 110 applied – reviewable decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Mental Health and Wellbeing Act 2022 (Vic)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) Sch 2 Cl 4
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Andrew and Secretary, Department of Social Services [2024] AATA 3279
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294
Briginshaw v Briginshaw (1938) 60 CLR 336
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211
DOB18 v Minister for Home Affairs [2018] FCA 1523
DLZZ and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3922
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 158
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
Hughes v The Queen (2017) 263 CLR 338
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
NZYQ v Minister for Immigration, Citizenship & Multicultural Affairs [2023] 97 ALJR 1005
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 180
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187
TTCT v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 1475
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
WKBF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 3728
WKBF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4013
WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465
YBFZ v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] HCA 40
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (together “the Refugee Convention”).
International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (“ICCPR”)
Department of Foreign Affairs and Trade (Cth), DFAT Country Information Report: Ethiopia (Report, 12 August 2020)
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) of Social Services, Guide to Social Policy Law: Social Security Guide (version 1.322, 4 November 2024)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth)
Statement of Reasons
INTRODUCTION

The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class AY (Subclass 104) Preferential Family Visa (“the visa”).
The hearing was held in person at the Tribunal’s Melbourne Registry on 28 and 29 October, and 12 November 2024. The Applicant was represented by Mr Greg Hughan of counsel with Mr James Penny, instructed by Refugee Legal. The Respondent was represented by Mr Graeme Hill SC of counsel with Ms Laura Mills, instructed by Mills Oakley.
For the following reasons the Tribunal affirms the reviewable decision.
BACKGROUND
The Applicant is a 44-year-old citizen of Ethiopia. He arrived in Australia on 13 December 1997 when 17 years of age and has not departed since.[1]
[1] Exhibit R1, 388.
The Applicant has an extensive criminal history since 2004 resulting in multiple sentences of imprisonment.[2] He has committed crimes of violence or involving the threat of violence. This includes intentionally and recklessly causing injury, recklessly threatening to inflict grievous bodily harm, and aggravated burglary while a person was present. He has also possessed weapons, trafficked illicit drugs, resisted police and emergency workers, breached conditional liberty orders, contravened intervention orders, and committed other dishonesty, property damage, and public nuisance offences.
[2] Ibid 54-9.
The Applicant has a persistent history of polydrug abuse including intravenous use of heroin and methamphetamine.[3] He has been diagnosed with paranoid schizophrenia[4] and amphetamine use disorder.[5] The Applicant also has a history of mental health relapses in the context of non-compliance with antipsychotic medication and/or misuse of illicit drugs.[6] He has previously been placed on an inpatient treatment order.[7] The Public Advocate has been his legal guardian since 17 February 2023.[8]
[3] Ibid 103-4 [44]-[45], 106.
[4] Ibid 667 [135], 1105 [8 (a)].
[5] Ibid 724 [36]; 773 [19].
[6] Ibid 116 [28], 707.
[7] Ibid 708-11.
[8] Ibid 330-1.
Procedural history
This application has an extensive procedural history as follows:
(a)On 3 May 2012, the Applicant was notified of an intention to consider cancelling his visa because of a substantial criminal record.[9]
[9] Ibid 380-5.
(b)On 19 June 2012, the Respondent decided not to cancel the visa and instead issued the following formal warning:
‘After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class AY Subclass 104 Preferential Family visa will continue to provide you with permission to remain in Australia. However the delegate decided that you are to be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered’.[10]
[10] Ibid 386-7.
(Emphasis in original).
(c)The Applicant continued to reoffend.
(d)On 18 September 2018, while he was serving a term of imprisonment, the Respondent cancelled his visa on character grounds as required under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[11] The Applicant was invited to make representations to have the cancellation decision revoked but failed to do so within the permissible 28-day period. A revocation request sent by Refugee Legal on 8 January 2019 was refused.[12]
[11] Ibid 81-5.
[12] Ibid 74.
(e)Between January and November 2020, Refugee Legal wrote to the Respondent alleging the Applicant was invalidly notified of the cancellation decision. The Applicant’s ‘capacity and personal circumstances’ were invoked[13] and an intention conveyed to file proceedings in the Federal Circuit Court of Australia.[14]
[13] Ibid 89.
[14] Ibid 94.
(f)On 3 March 2022, the Applicant was renotified of the mandatory cancellation decision.[15] Refugee Legal made representations on his behalf during 2022 and 2023 seeking revocation.[16] This was complicated by a concurrent guardianship process with multiple extensions of time granted for submissions.
[15] Ibid 477-84. Pursuant to EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 158; and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 180.
[16] Exhibit R1, 489, 503, 507.
(g)On 17 February 2023, the Office of the Public Advocate was appointed as the Applicant’s litigation guardian.[17]
[17] Ibid 330, 681.
(h)On 8 September 2023, the Applicant and his lawyer were advised that a delegate of the Respondent had decided not to revoke the mandatory cancellation of the visa (“non-revocation decision”).[18]
[18] Ibid 25-8.
(i)On 15 September 2023, the Applicant asked the Tribunal to review the non-revocation decision.[19]
[19] Ibid 18-24.
(j)On 1 December 2023, the Tribunal, differently constituted, affirmed the reviewable decision (“2023 hearing”).[20]
[20] WKBF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023]
(k)The Applicant appealed. On 6 May 2024, the Federal Court of Australia quashed the Tribunal’s decision by consent of the parties because of material jurisdictional error. Justice Hespe accepted that the Tribunal had regard to three offences where convictions were not recorded, which were irrelevant considerations pursuant to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17.[21] Her Honour remitted the matter to the Tribunal for re-determination according to law, thereby enlivening the current proceeding.
[21] Exhibit R1, 1989.
(l)It is noteworthy that parallel to the reviewable decision currently before the Tribunal, the Applicant applied for a Protection Visa on 7 February 2019.[22] The procedural history of that separate application is now summarised:
[22] Ibid 798 [7].
(i)On 8 July 2019, the Applicant’s Protection Visa application was refused by a delegate of the Minister, which was in turn affirmed by the Migration and Review Division (“MRD”) of this Tribunal on 16 September 2019.[23]
[23] Ibid 801 [26].
(ii)On 3 March 2020, the Federal Circuit Court, ordered by consent that the MRD decision should be quashed because it was affected by jurisdictional error. The matter was remitted for reconsideration according to law.[24]
[24] Ibid.
(iii)On 21 December 2020, the Tribunal, differently constituted, decided the Applicant is a person in respect of whom Australia has protection obligations under 36(2)(a) of the Act. The application was remitted to the Respondent for reconsideration.[25]
(iv)On 5 January 2023, a delegate of the Respondent refused to grant the Protection Visa under s 65 of the Act because the Applicant failed to satisfy the criterion at s 36(1C)(b) of the Act (danger to the Australia community).
(v)The Applicant asked the Tribunal to review this decision, and, on 13 November 2023, the Tribunal set aside the delegate’s decision and remitted the matter to the Respondent for reconsideration with a direction that the Applicant satisfies s 36(1)(b) of the Act and is not ineligible for the grant of a Protection Visa.[26]
(vi)On 16 August 2024 the Minister issued the Applicant with a notice of intention to consider refusal of the Protection Visa under s 501(1) of the Act.[27]
(m)On the second hearing day of the current proceeding (29 October 2024), just prior to closing submissions, Mr Hughan advised the Tribunal that correspondence was received from the Respondent’s Department a few minutes earlier that changed the Applicant’s circumstances. Leave was sought and granted for a 30-minute adjournment to enable further enquiries. The following then occurred:
(i)Upon resumption, Mr Hughan advised that the Applicant’s Protection Visa application was refused, and he would likely be released on a Bridging (Class WR) Visa R (“BVR”).
(ii)Another adjournment was granted until 2:00 pm to enable further enquiries. Upon resumption, Mr Hughan advised that the Applicant had been granted a BVR, the details of which were currently being conveyed to his public guardian. Mr Hill confirmed receipt of instructions about the grant of a BVR. He also informed the Tribunal that IHMS[28] had undertaken a Special Needs Health Assessment and formed the view that the Applicant ‘didn’t currently meet the criteria for treatment under the Mental Health Act’. Reference was made to supports available to the Applicant through the Status Resolution Support Services (“SRSS”).[29]
(iii)The Tribunal adjourned the hearing until 12 November 2024, the next available date for parties, for updated closing submissions.
[25] Ibid 158-93.
[26] WKBF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023]
AATA 3728.
[27] Respondent’s Statement of Facts, Issues, and Contentions dated 1 October 2024, 5 [25] (‘RSFIC’); Applicant’s Statement of Facts, Issues, and Contentions dated 27 August 2024, 3 [16] (‘ASFIC’).
[28] International Health and Medical Services (IHMS), which provides primary and mental health care services within the Australian immigration detention network.
[29] Exhibit R6.
LEGISLATIVE FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (“the ART Act”) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Sections 49-50 of the ART Act provide that the procedure of the Tribunal is within the discretion of the Tribunal having regard for the circumstances of the proceeding, and that the Tribunal must act with as little formality and technicality as a proper consideration of the matters before it permits. Section 52 of the ART Act states that the Tribunal ‘is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate’.
The Mental Health and Wellbeing Act 2022 (Vic) (“MHA”) featured prominently in the parties’ submissions. Key provisions cited include those relating to the ‘least restrictive principle’,[30] mental health treatment principles, treatment orders[31] and compulsory assessment and treatment criteria.[32]
[30] MHA, s 18.
[31] Ibid Part 4.5, ss 192-7, 333.
[32] Ibid ss 142-3.
Qualifying requirements for the Disability Support Pension were discussed during the hearing. These are set out at s 94(1) of the Social Security Act 1991 (Cth) and require that:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system.
The Guide and Impairment Tables
The Impairment Tables referred to at s 94(1)(b) of the Social Security Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Cth) (“the Determination”). They assign ratings reflecting the level of functional impact a condition has on an applicant. Clause 7(2) of the Determination emphasises the function-based rather than diagnosis-based character of the Tables. They describe functional activities, abilities, symptoms and limitations, thereby enabling the assignment of ratings to determine the level of functional impact of an impairment. Importantly, cl 8(3) of the Determination states that only conditions diagnosed by an appropriately qualified medical practitioner that are reasonably treated and stabilised, and are more likely than not to persist for more than two years, can be assigned points under the Impairment Tables.
Clause 8(5) of the Impairment Tables states:
In determining whether a condition has been reasonably treated for the purposes of paragraph 8(3)(b), the following is to be considered:
(a)what treatment or rehabilitation has occurred in relation to the condition; and
(b)whether treatment is continuing or is planned in the next 2 years and is likely to result in significant functional improvement.
Clause 8(6) of the Impairment Tables states:
For the purposes of paragraph 8(3)(c) a condition is stabilised if either:
(a) the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement; or
(b) The person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement is not expected, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

Clause 8(7) of the Impairment Tables refers to ‘reasonable treatment’ as treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost;
(c)can reliably be expected to result in a significant functional improvement;
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
ISSUE
It is not contested the Applicant fails the character test,[33] which follows from his 2008 conviction and 23-month total effective sentence for aggravated burglary.[34] Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) of the Act is whether there is ‘another reason’ for revocation.[35] The Tribunal ‘stand[s] in the shoes of the original decision-maker’ but considers the available evidence ‘at the time of the Tribunal’s decision’.[36]
[33] ASFIC, 4 [22].
[34] Exhibit R1, 855 [36], 859.
[35] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, 191-2 [3]-[5] (Katzmann J), 198 [24] (Derrington J), 219 [103] (O’Bryan J).
[36] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 (‘Nathanson’); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-5 [134].
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[37] reflected with approval upon the reasoning in Viane[38] and, at [27], identified the following principles as relevant to the statutory task conferred by s 501CA(4):
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is ‘another reason’ why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is ‘another reason’ why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[37] (2021) 287 FCR 294 (‘Bettencourt’).
[38] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, 545 [64] (Colvin J).
More recently, in Plaintiff M1/2021, a majority of the High Court relevantly said (with citations omitted):[39]
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. …The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the weight to be afforded to the representations is a matter for the decision‑maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. …What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[39] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 [22]-[27] (Kiefel CJ, Keane, Gordon, and Steward JJ) (‘Plaintiff M1/2021’).
DIRECTION 110
In making its decision, the Tribunal must comply with a ministerial direction under s 499(1) of the Act, known as “Ministerial Direction 110” (“the Direction”).[40] The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power.[41]
[40] The Act (n 11) s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417-8 [4] (Rares, O’Callaghan and Jackson JJ); Nathanson (n 36), 540 [4]; Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 21 June 2024) (‘The Direction’).
[41] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].
Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’. The following principles at cl 5.2 of the Direction provide a framework within which decision‑makers should approach their task, including whether to revoke a mandatory cancellation:
(1)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.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5)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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may 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.
(7)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.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision‑maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature, and duration of ties to Australia;
(d)The best interests of minor children in Australia; and
(e)Expectations of the Australian community.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed; and
(c)Impact on Australian business interests.
Clause 7(1) provides that when applying primary and other considerations, appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that the primary consideration Protection of the Australian community is ‘generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations’.
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’.
The individual and cumulative weighing process is a matter for individual decision‑makers.[42]
EVIDENCE
[42] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [28], [37]‑[38] (Colvin, Stewart and Jackson JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582, 587 [23] (Mortimer J, as her Honour then was); Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, 551 [23], [28] (Colvin J); Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, 473 [57].
Documentary evidence
Over 2000 pages of documents were tendered into evidence as follows:
(a)Remittal bundle numbering 1999 pages;[43]
[43] Exhibit R1.
(b)Additional remittal bundle numbering 127 pages;[44]
[44] Exhibit R2.
(c)Copy of Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth) dated 7 November 2024, covering an amended copy of Sch 2, item 070 incorporating amendments from those Regulations;[45]
[45] Exhibit R3.
(d)Notice of Visa Refusal dated 29 October 2024 relating to the refusal of the Applicant’s Protection Visa application;[46]
[46] Exhibit R4.
(e)Notice dated 29 October 2024 relating to the grant of a BVR to the Applicant;[47]
[47] Exhibit R5.
(f)IHMS Health Discharge Summary dated 29 October 2024 with IHMS Special Needs Assessment dated 18 October 2024;[48]
[48] Exhibit R6.
(g)Two-page email summary from Status Resolution Support Programs dated 29 October 2024 relating to the Applicant’s support entitlements under his BVR;[49]
[49] Exhibit R7.
(h)Notice dated 7 November 2024 relating to the grant of a BVR to the Applicant;[50]
(i)Temporary Treatment Order from Monash Health dated 5 November 2024 enabling an inpatient assessment of the Applicant;[51]
(j)VCAT Order dated 1 November 2024 regarding the appointment of an administrator;[52]
(k)Statutory Declaration of Rosemary Therese Barker, Office of the Public Advocate, dated 21 October 2024;[53]
(l)Psychiatric report of forensic psychiatrist Dr Nina Zimmerman dated 16 October 2024, covering letter of instruction dated 8 October 2024 from Refugee Legal;[54]
(m)VCAT Notice of Hearing dated 6 August 2024;[55]
(n)Notice dated 16 August 2024 regarding the Respondent’s intention to consider refusal of the Applicant’s Protection (Class XA) visa application;[56]
(o)Online documents titled ‘Do you meet the residence requirements – NDIS’ and ‘Residence descriptions’ from Services Australia regarding entitlement to a Centrelink payment or concession card;[57]
(p)Statutory Declaration of Rosemary Therese Barker, Office of the Public Advocate, dated 7 November 2024;[58] and
(q)Listing notice from the Tribunal dated 7 November 2024 relating to merits review of the decision to refuse the Applicant’s Protection Visa application.[59]
[50] Exhibit R8.
[51] Exhibit R9.
[52] Exhibit R10.
[53] Exhibit A1.
[54] Exhibit A2.
[55] Exhibit A3.
[56] Exhibit A4.
[57] Exhibit A5.
[58] Exhibit A6.
[59] Exhibit A7.
Oral evidence
The Applicant did not give oral testimony at either the 2023 hearing or the current proceeding based on expert evidence that his psychosis renders him incapable of giving legal instructions or making legal decisions.[60] He remains under a Guardianship Order.
[60] ASFIC, 1 [3]; 2 [7]; Exhibit R1, 668 [152].
The Applicant relied on a Statement of Facts, Issues, and Contentions (“SFIC”)[61] dated 27 August 2024, and reply submissions dated 21 October 2024 to the Respondent’s SFIC dated 1 October 2024. It was initially submitted he continues to rely on the SFIC lodged for the first hearing in late 2023 ‘to the extent that anything contained therein is referred to or developed’ in the latest SFIC.[62] Upon resumption of the hearing on 12 November 2024, both parties verbally amended their SFIC to incorporate the events of the previous fortnight.
Expert evidence – documentary
[61] A SFIC is akin to a pleadings document in a judicial proceeding.
[62] ASFIC, 1 [3].
Documentary evidence: Dr Zimmerman and Associate Professor Sullivan
Dr Zimmerman has produced multiple reports between August 2019 and October 2024 commissioned by Refugee Legal.[63] The Tribunal has considered these in addition to a transcript of Dr Zimmerman’s oral testimony in 2023.[64] The Tribunal has also considered a report dated 1 October 2024 from consultant forensic and adult psychiatrist Associate Professor Danny Sullivan (hereafter Dr Sullivan).[65]
[63] Exhibit R1, 96-109, 110-8, 145-57, 202-18, 635-45, 650-71, 699-706.
[64] Ibid 732-79.
[65] Exhibit R2, 3-11.
Dr Zimmerman’s most recent report was commissioned in part to respond to Dr Sullivan’s report. The latter’s opinion relates primarily to compulsory mental health treatment in the Victorian public health system. He has not personally assessed the Applicant, but has reviewed Dr Zimmerman’s reports, IHMS clinical records, the Direction, the Tribunal’s decision in WKBF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 3728 and the Tribunal Guideline on Persons Giving Expert and Opinion Evidence.
Dr Sullivan’s report reflects ‘broad agreement’ regarding the treatment plan recommended by Dr Zimmerman,[66] although he considers this an ‘ideal scenario which, unfortunately, is not always possible’.[67] The two psychiatrists’ reports are summarised as follows:
[66] Exhibit R1, 598-9, 682 [7].
[67] Exhibit R2, 10 [42].
(a)Dr Zimmerman stated that the Applicant’s psychosis ‘has been difficult to manage as a result of homelessness, poor insight, substance use and years in detention’. The Applicant continues to have no insight regarding his illness and refuses treatment for it in immigration detention. Dr Zimmerman refers to custodial notes dated September 2024 stating that the Applicant ‘was receiving methadone’ but was otherwise ‘poorly engaged with the drug and alcohol team, refusing appointments and declining urine drug screens’. He was also noted to be ‘poorly engaged with mental health appointments [and] remained non-compliant with medication’.[68]
[68] Ibid 106, 116, 155.
(b)Dr Zimmerman has diagnosed the Applicant with amphetamine use disorder and schizophrenia. She described his thoughts at their most recent interview as ‘poorly organised and tangential’,[69] with ‘grandiose and persecutory’ themes expressed.[70] Dr Zimmerman has noted that the Applicant tested positive for amphetamine and his drug use was ‘active…as recently as April 2023 and cannot be considered to be in remission’.[71]
[69] Ibid 653 [15].
[70] Ibid 663 [106].
[71] Ibid 641 [41], 642 [43].
(c)Dr Zimmerman considers the Applicant needs ‘to be treated as a compulsory patient and treated with depot antipsychotic medication’[72] in a Secure Extended Care Unit (“SECU”) to bring his schizophrenia into partial remission. She said he ‘would not be made a voluntary patient if…deemed to pose a significant risk to himself or the community’. She also referred to the MHA not covering people who are a risk to ‘themselves or others for reasons other than mental illness’ and noted this is a ‘complex’ issue because of the Applicant’s drug abuse, which could ‘precipitate, aggravate and perpetuate psychosis’.
[72] Ibid 704.
(d)Dr Sullivan broadly agrees with Dr Zimmerman’s treatment plan and the Applicant’s likely eligibility for a SECU admission. He explained, however, that this may still be declined ‘if there are no beds available’[73] and raised the possibility of the Applicant being placed on a wait list for ‘months or years’. Dr Sullivan noted that ‘each SECU operates with slightly different models and [he is unable to] predict with confidence whether [the Applicant] would definitely be accepted’.[74] He further notes the possibility that a person released from a SECU may not receive appropriate treatment if they refuse or abscond, or if required supports are unavailable in the community, or a person is not eligible because of their ‘non-citizen status’.[75]
[73] Exhibit R2, 7 [27].
[74] Ibid [28].
[75] Ibid 8 [33].
(e)Dr Zimmerman referred to the Applicant’s ‘well-established history of stopping treatment at the first opportunity’ and accepts Dr Sullivan’s view that if he ‘absconded, providing treatment may become impossible’. She agrees with Dr Sullivan that ‘there would be obstacles in attempting to manage [the Applicant] in an acute setting’ and that a referral to a SECU ‘could be declined’. Dr Zimmerman considers this ‘unlikely’, however, because the Department of Health website states that a ‘SECU must give priority to clients with the greatest need’. She disagrees that the Applicant will ‘languish on a waiting list for years’.
(f)Dr Sullivan observed that the MHA ‘may enable compulsory treatment for mental illness’,[76] but ‘cannot enforce substance use treatment’, which is ‘in almost all cases voluntary’.[77] Dr Zimmerman agrees that effective drug and alcohol counselling cannot be compelled, but noted that even when acutely psychotic, the Applicant has complied with his opioid replacement therapy (methadone).
[76] Ibid 9 [36].
[77] Ibid.
(g)Dr Sullivan noted that orders under the Act ‘are not long-term or indefinite and are subject to regular review at no more tha[n] six-monthly intervals’.[78] He stated that the practice of detaining patients recurrently in a SECU ‘is not frequent’ and a stay is typically around six months. Dr Zimmerman’s experience, however, is that it is ‘not uncommon for patients to stay in a SECU for well over six months and critically, the length of stay depends upon the specific needs of the patient’. She accepts that ‘factors determining transfer to a SECU would include bed availability and the assessment of…clinical need’.[79] Dr Sullivan stated in his report that: ‘Guidance on the interpretation of the statutory threshold is not clear and other factors such as bed availability and resources to manage people in the community also affect the threshold for admission when this is not clear-cut.’[80]
[78] Ibid [39].
[79] Ibid 643.
[80] Exhibit R2, 8.
(h)After an unspecified period in a SECU, Dr Zimmerman considers that ‘case-management by public mental health services in the community (possibly by an assertive outreach team)…[should follow as]…the most appropriate treatment option’. Dr Zimmerman noted that when a patient is commenced on depot medication, ‘it takes approximately twelve weeks for a steady level to be established in the blood’.
(i)Dr Zimmerman agreed with Dr Sullivan that the Applicant’s engagement with supports once outside of the public mental health system cannot be compelled, but noted that on a past occasion when the Applicant was ‘treated and showing minimal signs of psychosis [he] indicated a readiness to engage with appropriate supports’. She agreed that ‘ineligibility for support services would create difficulties in terms of the provision of optimal care’.
(j)Dr Zimmerman considers the Applicant’s active psychosis reduces his ‘ability to cope with stress’[81] and precludes him from ‘making appropriate plans regarding accommodation or community linkages’. This remains a current concern. Other problems arising from the Applicant’s untreated psychosis are noted to be ‘homelessness, problems sustaining social relationships and failure to establish himself in long-term employment’.[82] Dr Sullivan similarly opines that the Applicant requires financial, housing, and other supports if returned to the community.
(k)Dr Zimmerman assesses that once treated with depot medication the Applicant:
would be able to participate in measures to reduce his risk of re-offending, with the support of a multidisciplinary team from a mental health service (social worker, psychiatrist, case worker and so on). Additional community linkage services would also increase his ability to…sustain engagement with prosocial community links.[83]
(l)In contrast with Dr Zimmerman’s risk assessment, Dr Sullivan considers the Applicant’s ‘current risk of violence is more likely to be high rather than medium, based upon a cluster of scores’ in the HCR-20 V3.[84] Dr Zimmerman considers the Applicant ‘currently presents a moderate risk of violent recidivism’ but, if released into the community with no interventions/supports in place, agrees the risk to himself and others would be ‘high’. If he was in ‘partial remission’ after a stay in a SECU and being assertively managed by a mental health service, with accommodation, treatment for drug/alcohol use and other recommended supports, then his ‘risk of violent recidivism would be low’.
(m)Dr Zimmerman agrees that patients with the same diagnosis as the Applicant ‘are discharged from hospital without placement in a SECU’, but she believes ‘the constellation of events’ that could result in this outcome are ‘unlikely to occur’. Given the Applicant’s circumstances, she considers he is ‘well within the criterial for a SECU admission’.
(n)Dr Zimmerman concurs with Dr Sullivan’s view that the Applicant ‘could not be detained in an inpatient unit if he were improved, willing to comply, and had accommodation and supports’. She considers ‘this is most unlikely to be achieved in an acute bed’ compared to a SECU, but concedes that if it did occur, it ‘would appropriately result in discharge…to the community’.
(o)Dr Zimmerman concurs with Dr Sullivan’s view that patients can be discharged to homelessness but said this is not commonplace. She considers it ‘extremely unlikely’ that a patient would be taken off an order without accommodation being in place, and ‘very unlikely’ that a patient would be discharged ‘onto the streets where they posed a risk of violence to others as a result of mental illness’.
(p)Dr Zimmerman stated that if the Applicant is released as an ‘NZYQ affected case’ on a BVR he would be ineligible to receive support under the National Disability Insurance Scheme (“NDIS”) or DSP although ‘alternative supports may be available via the SRSS program’. In terms of the SRSS information sheet lodged by the Respondent, she sees these types of services as indicated for the Applicant after a stay in a SECU.
[81] Exhibit R1, 213 [95].
[82] Ibid 214 [97], 664 [113]
[83] Dr Zimmerman’s report, 13 [104].
[84] Exhibit R2, 11 [49].
Oral testimony of Dr Zimmerman

Dr Zimmerman adopted her report dated October 2024 as true and correct.[85] She is currently appointed by the Victorian Government to the Mental Health Tribunal (“MHT”) and sits approximately weekly. If the Applicant’s case were to be listed before the MHT, Dr Zimmerman said she would not participate, and decisions would instead be made by another psychiatrist in conjunction with a legal member and a community member.
[85] Exhibit A2.
During evidence in chief, Dr Zimmerman was taken through the Applicant’s treatment in recent years, which includes several transfers from immigration detention to an inpatient facility. She described the orders under the MHA required to facilitate such admissions but said the Applicant’s treatment periods were relatively short because he could not be compelled to comply with depot treatment[86] in immigration detention. Dr Zimmerman explained this is because detention centres are not gazetted locations under the MHA so involuntary medication cannot be administered. Dr Zimmerman was asked about an opinion expressed in her report dated 30 August 2023 that she was ‘heartened by…recent information that once established on antipsychotic medication, [the Applicant] comes into at least partial remission over a relatively short period of time’.[87] This related to the Applicant’s placement on an eight-week Treatment Order that expired on 12 July 2023.[88] Dr Zimmerman responded that this was a ‘very short [admission] period’ and although there had been ‘some partial remission’, he ‘relapsed very quickly’ and ‘any benefit was lost after coming off treatment’. Dr Zimmerman agreed that a reference in her October 2020 report to the Applicant showing ‘some improvement’ in July 2016 ‘on antipsychotic treatment, going from frankly delusional and hallucinating to having residual, less intensive persecutory delusions’,[89] was an ‘example’ of partial remission. She agreed he also ‘gradually improved’ in March 2018 ‘on the oral antipsychotic olanzapine and was provisionally diagnosed at that stage with a drug-induced psychosis’.[90]
[86] A slow-release form of injectable medication.
[87] Exhibit R1, 641 [42].
[88] Ibid 641 [37].
[89] Ibid 114 [19], 150 [32].
[90] Ibid 115 [24].
Dr Zimmerman’s evidence traversed a spectrum of treatment options from placement in a Community Care Unit (“CCU”) where patients can ‘come and go at will’, relatively short stays in an inpatient unit and involuntary admission in a SECU. She said the latter is for more ‘complex cases’ including where a patient does not respond to treatment. Dr Zimmerman said a SECU is:
for people often with chronic illness and comorbidities like substance use, like forensic issues, sometimes head injuries, cognitive difficulties. So, they’re much more complex cases who are not responding quickly to treatment, often have very few connections in the community. They may not have stable accommodation. They may not be able to live independently. So, they need a lot of rehabilitation. Patients can usually stay there for maybe six months, up to two years. But there are unfortunate cases where people don’t recover and can be in a SECU for many, many years.
Dr Zimmerman said there is no published data on the duration of SECU stays, which can accommodate patients with mental health and substance abuse issues. Only mental health treatment is compellable, however, and patients can’t be forced to comply with drug monitoring through measures such as urine screens. Mr Hill asked Dr Zimmerman about an IHMS record dated 23 February 2024 that included a reference to ‘?substance affected’,[91] and another dated 7 May 2024 referring to the Applicant’s behaviour as ‘possibly due to Drug-induced status’.[92] Dr Zimmerman said his presentation may equally be attributable to psychosis and noted there was no evidence the Applicant had used drugs in the last six months, but conceded: ‘There is certainly the possibility he’s been using drugs’. She said it was ‘common’ for patients to use substances like ice in a mental health treatment environment, as occurs in prisons and detention centres, because ‘people in psych units…are very imaginative’. Dr Zimmerman said if patients stopped their treatment and were still using illicit drugs, however, this could be a ‘catastrophe’. Dr Zimmerman said the Applicant is on the Methadone Program in detention and had refused urine screens. She also noted that recent concerns about the Applicant’s drug use related to ‘stimulants’ and ‘Methadone is not useful in that situation’.
[91] Exhibit R2, 89.
[92] Ibid 78.
During cross-examination Mr Hill took Dr Zimmerman through the stages of a treatment plan she has recommended for the Applicant.[93] Mr Hill confirmed with Dr Zimmerman that the first step of this plan commences with compulsory treatment for schizophrenia in the form of injectable depot medication within an acute in-patient setting, which requires an assessment order and then a temporary treatment order under the MHA. Subject to a recommendation from the treating psychiatrist in the acute unit, this may be followed by transfer to a SECU under a full treatment order. Dr Zimmerman agreed the Applicant could be discharged from an in-patient setting prior to transfer to a SECU if ‘he has an excellent response’ to depot treatment but considers this ‘unlikely’ and expects he will ‘come into remission slowly’. This is because of his persistent refusal to comply with recommended mental health treatment in detention, lack of insight and absence of appropriate accommodation and community supports.
[93] Exhibit R1, 736-37.
Mr Hill confirmed with Dr Zimmerman that the second step of her recommended treatment plan commences once the Applicant’s schizophrenia is in partial remission, and he has a sufficient ‘degree of insight and reduction in symptoms’ allowing for his substance abuse to be treated. Dr Zimmerman expects this will also occur in the SECU, but if he were to spend a longer time waiting for a SECU bed ‘within the acute system’, came into remission and had a degree of insight, ‘then this work could also begin in an inpatient unit’.
Mr Hill confirmed with Dr Zimmerman that the third step of her recommended treatment plan is when the Applicant is ready to transition to assertive case management in the community. Dr Zimmerman said the work of locating required supports ‘often begins in the inpatient setting’ and can continue in the SECU and the community after release. She does not consider the Applicant will be released from a SECU into the community until sufficient supports are in place. He would also still be a compulsory patient under the MHA so the community treatment order could be revoked, and an in-patient treatment order made if he became non-compliant with medication. Dr Zimmerman accepted that if sufficient supports were unavailable for the Applicant in the community this would increase his recidivism risk. She also agreed that there is no requirement under the MHA for community supports like accommodation to be in place prior to discharge. Dr Zimmerman accepted Dr Sullivan’s opinion that it was ‘entirely possible that a person with similar diagnoses to [the Applicant] could be discharged from hospital without placement in a SECU’[94] and is aware of instances where patients were discharged to homelessness. She considers this is unlikely but accepts there are a range of opinions about community treatment.
[94] Exhibit R2, 7 [29].
Mr Hill took Dr Zimmerman through provisions of the MHA that ‘map’ with the three steps of her proposed treatment plan. This includes the four MHA criteria referred to at paragraph 124 of her report, namely: the ‘Least restrictive principle’ at s 18; compulsory treatment criteria at ss 142–143; making of a treatment order and types of orders at ss 192 and 194; and the mental health and wellbeing principles at s 333. Dr Zimmerman agreed that when the MHT considers making an in-patient order, the risk of serious harm is weighed against a person’s right to liberty. When put by Mr Hill that in a finely balanced case a person’s liberty is favoured, Dr Zimmerman disagreed and said this depended on how far in remission they are and the risk of harm but accepted that some degree of recidivism risk is tolerated in these deliberations. If the Applicant still had delusions and auditory hallucinations Dr Zimmerman felt that ‘risk would still outweigh the principle of dignity’. In terms of mental health treatment principles, Dr Zimmerman said patients are ‘treated in the least restrictive way’ and that any treatment order needs to be properly justified. The MHA can review a patient’s comprehensive history before making a treatment decision.
Dr Zimmerman was asked about previous occasions when the Applicant was subjected to involuntary mental health treatment, but she considers that a longer period is required to establish a ‘steady level’ of the most efficacious medication in his blood. She estimated this would take around 12 weeks, but said it was impossible to predict because different medications may need to be trialled.
Mr Hill asked Dr Zimmerman about the supports that might be available to the Applicant if he became eligible to apply for funding under the NDIS. She said this ‘varies enormously’ but could include linking the Applicant to services relating to housing, an area health service, and practical supports for tasks like shopping. Dr Zimmerman said the Applicant’s guardian ‘plays a much more hands off role’ and that several case workers under the NDIS may be needed to address the Applicant’s community support needs.
Dr Zimmerman was asked about Dr Sullivan’s opinion that the comprehensive treatment approach she proposes is an ‘ideal scenario’ that ‘is not always possible’. Dr Zimmerman accepted there can always be difficulties arising from accessing required supports but considers it ‘extremely unlikely’ the Applicant would not meet the criteria under the MHA for long term intervention. This is notwithstanding her acceptance that the Applicant has a well-established history of stopping treatment at the first opportunity. She also said it ‘shouldn’t be a problem’ to access the multidisciplinary team and other community supports for Stage 3 of her plan when required.
Oral testimony of Associate Professor Danny Sullivan
Dr Sullivan adopted his report dated 1 October 2024 as true and correct.[95] Key aspects of his oral testimony are summarised as follows:
[95] Ibid 3-11.
(a)Dr Sullivan has assisted mental health services in making SECU referrals and in helping facilitate discharges into Community Health Services. He said the process for SECU admission is ‘opaque’ and each has different criteria. He explained that SECU admissions are for longer periods where patients don’t respond to treatment during repeat admissions to an acute in-patient facility. The referral proposing admission to a SECU would be decided by a psychiatrist and senior clinician in that facility and can be declined for several reasons:
So consequently, a referral can be declined because it’s deemed that the patient could do with further inpatient treatment in a different setting, doesn’t require conditions of security. In other words, can be managed in a less restrictive fashion, or would not require a stay of the length typically set out for a SECU admission.
(b)Dr Sullivan said the ‘least invasive way’ of providing mental health treatment is selected. He agreed that if a person meets the criteria at s 143 of the MHA, then a place will ‘ideally’ be found for them, but ‘sadly, in many cases they will languish in an emergency department for a period of time until that place is found’.
(c)The Applicant was previously transferred to an acute in-patient hospital bed, responded to anti-psychotic treatment, and was then returned to immigration detention. When asked if this was because long-term injectable medication could not be administered in detention, Dr Sullivan disagreed. He said voluntary administration of long-term depot medication in detention is permitted, but the Applicant had refused.
(d)Dr Sullivan agreed with Dr Zimmerman’s assessment that a patient’s prospect of achieving successful remission is ‘reduced by the length of the period of untreated psychosis’. In terms of Dr Zimmerman’s reference to it taking about 12 weeks to achieve a ‘steady state’ of medication, Dr Sullivan said ‘in practice, most patients are discharged well before they’ve attained…steady state pharmacodynamics’. He explained that the ‘body develops an equilibrium with each dose’ to advance a situation where it takes ‘much longer to get unwell again’. Dr Sullivan considers the Applicant meets the criteria for in-patient admission and considers it ‘unlikely he will be admitted to a SECU’ without that treatment first. Dr Sullivan said the Applicant’s ‘profile’ is not unusual within mental health services and explained that long stays in treatment facilities are:
perhaps ideal but impracticable. If we detained every patient in an acute inpatient unit for 12 weeks, we would treat one-sixth of the number of people that we currently do because the average length of stay of an acute inpatient unit is between eight and 12 days across Victoria. So, what that means is that patients are discharged when medication has been initiated with a view to its continuation in the community, either voluntarily or compulsorily and the attainment of steady state is something that occurs further down the track in their treatment. We don’t keep them in hospital waiting for that to happen. Just as if, for instance, if you had a broken leg and you required surgery, you’d be discharged to have the staples removed at home rather than remaining in for 12 days before the staples would have come out.
(e)Dr Sullivan said that based on the materials he has reviewed, the Applicant is currently ‘insightless as to his problems and…unlikely to engage with a drug and alcohol counsellor’. When put by Mr Hughan that the Applicant would not be released into the community from an acute inpatient facility, Dr Sullivan responded: ‘No, I disagree – it happens in almost all cases. They simply need to be manageable in the community’. He said none of the criteria at s 143 of the MHA mitigate against a person from being treated in an in-patient setting other than a SECU and discharged from that facility into the community without placement in a SECU. This could be on a Community Treatment Order.
(f)Dr Sullivan discussed the close association between substance abuse and increased risk of psychosis. If a patient poses a significant enough risk to themselves and others, then in-patient treatment might not be possible because of resource constraints or the patient’s illicit drug use. Violent or threatening conduct may ‘trump’ treatment needs and result in discharge based on factors like ‘difficult personality issues or substance abuse’. He explained:
it is not infrequently the case that a person admitted to hospital, who appears on first glance to satisfy the criteria of the Act, is subsequently discharged on the basis that they pose a risk but it’s not because of the mental illness; that is, it’s because of their difficulty [sic] personality or the likelihood that they take substances. There are many people who when intoxicated with substances appear very psychotic and meet the criteria and within a day or two have settled sufficiently that they will be discharged, even if they still meet the criteria because it’s considered that it’s due to their substance use, rather than a psychotic illness such as schizophrenia.
(g)Dr Sullivan confirmed it is ‘entirely possible’ that a person with diagnoses similar to the Applicant ‘could be discharged from hospital without placement in a SECU’. Even if admitted to a SECU it is also possible that after released to a Community Treatment Order (CTO) they:
may not receive appropriate treatments and supports, for instance if they abscond. It is also possible that “appropriate treatments and supports” may not be available in the community, or that [the Applicant] might be ineligible for these because of his non‑citizen status.
(h)Having regard for paragraph 123 of Dr Zimmerman’s most recent report, Dr Sullivan said it was ‘ideal in principle’ to discharge a patient into stable accommodation but ‘in practice this doesn’t occur’. Dr Sullivan said the MHA does not require involuntary detention until suitable accommodation is found. He said there is often ‘little likelihood’ of this and making it a condition of release could constitute a ‘perverse incentive for in-patient treatment’. Dr Sullivan elaborated on the high demand for SECU beds and said waiting lists could be ‘weeks, months, or years’. Based on his experience, in-patients are routinely discharged into homelessness; in some cases, with a short hotel stay provided, or referrals to transitional housing providers, or just ‘a swag’.
(i)Dr Sullivan said a diagnosis of schizophrenia, poor insight, or risk of offending are not ‘impediments to discharge’ from an in-patient facility. Dr Sullivan was asked about Dr Zimmerman’s reference at paragraph 137 of her most recent report that discharging patients to homelessness is not ‘commonplace’. Dr Sullivan said there are no statistics about this, but he considers it ‘routine practice’ in inner city Melbourne to discharge patients into homelessness. He gave an example of a major Melbourne hospital that provides a week’s accommodation in a ‘motor inn’ and links to housing providers. He agreed that resource availability is less of an issue in major cities compared to regional areas.
(j)Dr Sullivan was referred to support that may be available to the Applicant under the SRSS if he is released on a BVR, and asked whether the Applicant may require services for longer than 12 months. He thought this was likely, but he had not personally examined the Applicant and said it was ‘too hard to predict’ because of uncertainty about how he might respond to depot medication. He said the Applicant’s ‘non-citizen status’ may also affect his ability to access required supports in the community. Dr Sullivan considers that BVR conditions requiring the Applicant to comply with medications and submit to drug testing may be useful because drug urine testing is voluntary, even in a SECU.
(k)Dr Sullivan was asked about his assessment that the Applicant’s recidivism risk was high rather than medium as assessed by Dr Zimmerman. He said this assessment was based on the number of scores in the HCR-20 VR risk instrument completed by Dr Zimmerman that were identified as ‘present’, which he considers meets the criteria for high risk. He felt that Dr Zimmerman had erroneously assumed the Applicant would be ‘in a setting that manages some of that risk’.
Evidence of the Applicant’s guardian
The Tribunal has considered documentary evidence from the Applicant’s current guardian, Ms Rosemary Barker, about the scope of her powers and responsibilities.[96] A Statutory Declaration dated 21 October 2024 was taken into evidence as unchallenged testimony.[97] Ms Barker declared that when the Applicant is ready for community release, she ‘will advocate strongly for him to obtain suitable accommodation in the community’ and to be granted supports under the NDIS and DSP.
[96] Exhibit R1, 681-4, 780-93.
[97] Exhibit A1.
Upon the resumption of the hearing on 12 November 2024, a further four-page Statutory Declaration was tendered from Ms Barker dealing with events since the Applicant’s release from immigration detention on 29 October 2024.[98] Ms Barker also gave oral evidence, key aspects of which are summarised as follows:
(a)Ms Barker said she has been the Applicant’s guardian since April 2023 and the VCAT guardianship order remains in place until reassessed. When asked how long she expects the order to remain, Ms Barker said this depends on how quickly the Applicant’s mental health is stabilised. She believes ‘he will need a guardian for longer’ to assist with things such as accommodation, access to services and in relation to his legal proceedings.
(b)Ms Barker said she has spoken to the Applicant four times since his release on 29 October 2024, but he ‘always hung up’. She attempted to inform him during these calls of a VCAT hearing and to discuss other guardianship issues. The Applicant has not responded to her text messages.
(c)Ms Barker said she applied for an administration order to VCAT on 31 October 2024 and the State Trustee had since been appointed as the Applicant’s financial administrator. She has taken this step because the Applicant is receiving a Special Benefit from Centrelink since release. Ms Barker said the Applicant is also entitled to 12 weeks of accommodation paid for under the SRSS.
(d)When referred to IHMS documents at Exhibit R6, Ms Barker said she advocated for the Applicant to have a mental health assessment with a ‘clinician’ on the day of his release from immigration detention, but this did not occur.
(e)Ms Barker said that as of 7 November 2024 the Applicant remained admitted to an acute bed at a ‘High Dependency Unit’ under a Temporary Treatment Order issued on 5 November 2024,[99] which remains in effect for 28 days. The Applicant will be assessed as to ‘what order should follow’ and Ms Barker was informed by a nurse that testing is being undertaken about the most efficacious medication for his needs. She said this has consisted of oral medication to date rather than depot injections.
(f)Ms Barker said there ‘may be a hearing’ before the MHT to decide next steps. She intends preparing a report and advocating for a new Treatment Order when the current order expires. Ms Barker also intends advocating to the Chief Psychiatrist in Victoria regarding a SECU bed to advance the treatment plan proposed by Dr Zimmerman. Ms Barker is concerned if the Applicant is ‘released too early [from an acute setting] he may not comply with his medication regime’.
(g)Ms Barker said she is unaware if the Applicant has used illicit drugs or alcohol since release. Although compliant with his prescribed dose of methadone in immigration detention, Ms Barker said he has since refused to take it.
(h)Ms Barker said she is unaware if the Applicant has been involved in any offending or violent acts since release but stated she has received reports from a nurse that the Applicant ‘is stable and reasonably quiet on the unit’.
[98] Exhibit A6.
[99] Exhibit R9.
PRIMARY AND OTHER CONSIDERATIONS

The Applicant and Respondent submit that cl 8.2 of the Direction relating to family violence, cl 8.4 relating to best interests of children, cl 9.2 relating to extent of impediments, and cl 9.3 relating to business interests are not relevant in this matter.[100] Having considered the available evidence the Tribunal agrees, and these considerations weigh neutrally.
[100] ASFIC, 9 [44]; RSFIC (n 29) 11 [54], [56], 21 [106].
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1)   When considering protection of the Australian community, decision-makers should keep in mind that safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)   Decision-makers should also give consideration to:
a)    the nature and seriousness of the non-citizen’s conduct to date; and
b)    the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)   without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.   violent and/or sexual crimes;
ii.     crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)   without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.   causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.     crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)   with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)   the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)   the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)    the cumulative effect of repeated offending;
(g)   whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)   whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(i)    where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Tribunal consideration: The nature and seriousness of the conduct
There is no dispute the Applicant’s criminal history is accurately reflected in the evidence. The Tribunal has considered this, except for three offences where convictions were not recorded for firearms charges in 2002 and for recklessly causing injury in June 2011, which is impermissible.[101] The Tribunal places no weight on these three outcomes.
[101] WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465, [7] (Hespe J).
Sentencing remarks are in evidence from the County Court of Victoria dated 2008 for aggravated burglary and recklessly cause injury offences, to which the Applicant pleaded guilty.[102] The Court found that the Applicant was drinking alcohol until about 4 a.m., entered a house ‘as a trespasser with intent to assault’ and stomped on the face of a male victim who was asleep prior to the Applicant’s attack.[103] Women in the house were noted to be ‘particularly fearful and scared’ by these events.[104] It took some time for the Applicant to be served with charges arising from this conduct because he was then noted to be living a ‘transient lifestyle’ and ‘itinerant’ for most of the 12-year period after arriving in Australia.[105] The Court noted that:
Aggravated burglary is a very serious offence, carrying as it does a maximum of 25 years’ imprisonment. It is an offence which is characterised by criminal conduct which interferes with the most sacrosanct and important right of citizens: to enjoy the safety and comfort of their abode without the threat or reality of violence.
You made your way into this home in the night. You attacked a victim and scared the other occupants. Invading the home in this way is terrifying, unsettling and unacceptable by any standards. Though it may indeed lie at the lower end of the scale, this is a serious offence which luckily did not result in more serious injuries to the victim. It is behaviour which deserves condign punishment.[106]
[102] Exhibit R1, 60-71.
[103] Ibid 63 [12].
[104] Ibid [8].
[105] Ibid 64 [14], 66 [24].
[106] Ibid 67-8 [29]-[30].
It is conceded on the Applicant’s behalf that his criminal history is ‘extensive in terms of span of time and volume of offending’. It is also conceded that the formal warning he received and cumulative effect of his persistent crimes are relevant considerations.[107] It is submitted, however, that the sentences for aggravated burglary and recklessly causing injury are substantially below the available maximums, that there is ‘no basis…to conclude… there is any trend of increasing seriousness’ and that his criminal history is:
overwhelmingly dominated by less serious offending consistently with the Applicant’s offending occurring within the context of a psychotic mental illness, homelessness and drug addiction. The Tribunal has previously had regard to an applicant’s mental illness as appropriate context for considering an applicant’s offending and accepted mental illness (including undiagnosed health conditions) as a contributing factor to their history of offending.[108]
[107] ASFIC dated 23 October 2023, 10 [48].
[108] Ibid 13 [63], 14 [64], 14 [66].
In addition to the Applicant’s criminal history, ‘other conduct to date’[109] may also be apposite to the Tribunal’s consideration, despite not leading to charges or convictions. This includes conduct in custodial settings. It is submitted on the Applicant’s behalf that the contemporaneous reports of such conduct are ‘allegations’ that have ‘not been judicially scrutinised nor…established for the purposes of the present proceeding’.[110] It is further submitted that the ‘rule’ in Briginshaw[111] ‘should govern the Tribunal’s fact finding in relation to any allegation of misconduct or criminality that has not been judicially scrutinised’, and also ‘apply in relation to the assessment of the facts surrounding a particular offence where there is no judicial statement of those facts’ such as sentencing remarks.[112]
[109] Pursuant to cl 8.1.1(1)
[110] Exhibit R1, 591 [50].
[111] Briginshaw v Briginshaw (1938) 60 CLR 336, 361-2 (Dixon J) (‘Briginshaw’).
[112] ASFIC dated 23 October 2023, 12 [61].
The Respondent submitted that the Applicant’s most serious offending was one count of Aggravated Burglary – person present in 2008. Reference is also made to other violent offences, breaches of conditional liberty, drug offences including trafficking of cannabis and possession/use of heroin and dishonesty and property offences. The Respondent emphasised that the Applicant’s crimes traverse two decades and that he ‘has also been involved in incidents in detention’.[113]
[113] RSFIC, 13 [68].
Tribunal findings: The nature and seriousness of the conduct
The Applicant has convictions recorded against him in most years between 2004 and 2018. It is appropriately conceded that his crimes are ‘extensive in terms of span of time and volume of offending’. He has committed multiple violent offences, which are viewed very seriously by the Australian Government and community.[114] This includes unprovoked violence following illegal entry into a home, and other violent, aggressive behaviours at the home of a woman with children present.[115] He was on bail at the time of this latter offending and, when arrested by police, was found to be in possession of a metal pole and pointed kebab skewer. There are multiple instances disclosed by the evidence where he has breached conditional liberty orders. The Applicant has also resisted police in the performance of their duty on several occasions, which falls within the meaning of cl 8.1.1(1)(b)(ii) of the Direction.
[114] The Direction (n 40) cl 8.1.1(1)(a)(i)-(ii).
[115] Exhibit R1, 312, 351-2.
Imprisonment is a sentence of last resort and the most severe sanction available to Australian courts.[116] The Applicant has been sentenced to multiple custodial sentences. It is accepted those awarded for crimes such as aggravated burglary and recklessly causing serious injury are substantially below the available maximums. Any sentence of imprisonment, however, is a serious punishment.
[116] See for example: Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, 7 May 2024) <
In respect of the submission made about the ‘rule’ and principles in Briginshaw, section 52 of the ART Act states that the Tribunal ‘is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate’.
In relation to ‘other conduct’ within the meaning of cl 8.1.1(1) of the Direction, there are multiple reports about the Applicant engaging in aggressive, abusive, and physical exchanges with detainees and staff. When coupled with reports from Dr Zimmerman and other materials in evidence, the Tribunal is satisfied the Applicant has not been consistently compliant in custodial settings. This includes Dr Zimmerman’s reference to him testing positive for amphetamine while in immigration detention suggestive of amphetamine use ‘as recently as April 2023’.[117] He is also noted to have refused to comply with drug tests while on opioid replacement therapy. The Tribunal accepts the Applicant’s persistent drug use and mental health issues contextualise but do not excuse his conduct, noting that the full scope of recommended treatment for his needs is unavailable in immigration detention. This reduces the weight placed on his misconduct.
[117] Exhibit R1, 641 [41], 642 [43].
There is a trend of increasing seriousness in the Applicant’s conduct, including because of the repeat nature of violence and conditional liberty offences. The adverse cumulative impact of his behaviour reflects a persistent disregard for Australia’s laws and indifference for the rights of others. The Applicant’s persistent drug addiction, mental illness, and factors such as homelessness contextualise but do not excuse his crimes and misconduct.
The Applicant committed further serious offences after receiving a formal warning in 2012 about the consequences of doing so. This falls within the meaning of cl 8.1.1(1)(h) of the Direction.
The totality of the Applicant’s crimes and other conduct is very serious.
Tribunal consideration: Risk to the Australian community should the non‑citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some 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.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non‑citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non‑citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
This aspect of the Direction requires assessment of the risk the Applicant poses to the Australian community in the event he reoffends, taking into consideration both the nature of any harm and its probability. Justice Kerr has referred to this as a ‘future-focused assessment’[118] where evidence of past offending ‘is not, of itself, significantly probative’ of the committing of another offence.[119]
[118] CTK17 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211 [90] (Kerr J). See also Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [59] (Katzmann J); Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540, 561 [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[119] Hughes v The Queen (2017) 263 CLR 338, 392 [154] (Nettle J).
In Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595, Mortimer J, as her Honour then was, reasoned at [78] that:
[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.
In Guo,[120] the High Court held that past actions can be legitimate predictors of future behaviour. The majority observed, however, that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded,’ or at the other extreme ‘may border on certainty’.[121] The majority also observed there are several factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events’.[122]
[120] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574 (‘Guo’).
[121] Ibid 574-5.
[122] Ibid 575.
Applicant’s submissions
The Applicant acknowledges that his extensive criminal history and persistent mental health problems weigh in favour of a finding that he ‘remains at some risk of offending’, but it is contended the risk he poses ‘is not so great that it should preclude him from holding a visa in Australia’.[123] The reasons advanced for this are that:
(1) There are identifiable and bounded contributors to the Applicant’s offending and a range of steps can be taken to address those contributors.
(2) The Applicant has demonstrated some capacity for remorse and insight into his offending and mental illness when he is well.
(3) There are appropriate treatment options and supports available to the Applicant on his release in the community.
(4) There is a clear pathway for the Applicant to be released directly from immigration detention into an inpatient facility under a compulsory treatment order.[124]
[123] ASFIC dated 23 October 2023, 14 [68].
[124] Ibid 14-15 [68].
Mr Hughan said this primary consideration interacts with the Applicant’s circumstances in a ‘different light’ because of his release on a BVR. In essence, he will remain in the community irrespective of the Tribunal’s decision. This will be without the curfew and tracking conditions that the High Court has recently ruled are unjustifiably punitive and unable to be lawfully imposed by the Executive as a matter of federal constitutional law, unless a serious risk of serious harm can be established.[125] While acknowledging that release under a BVR and a non-revocation decision result in the ‘same near-term outcome’ with respect to the Applicant’s treatment, Mr Hughan said revocation promotes community protection by enabling the Applicant to access the Step 3 aspects of Dr Zimmerman’s recommended treatment plan. Mr Hughan said the ‘most likely outcome’ for the Applicant is an extended care placement in a SECU, following which future NDIS / DSP support turns on whether he holds a permanent visa. Mr Hughan contends the Tribunal can be ‘well comforted that the most likely outcome’ is implementation of Dr Zimmerman’s long-term treatment plan ‘and not Dr Sullivan’s concerns’. He said protection of the Australian community is best provided by the Applicant having ‘full access’ to the NDIS and a DSP.
[125] YBFZ v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] HCA 40 (‘YBFZ’).
The Applicant’s guardian is relied upon as a protective factor in helping advance the treatment plan recommended by Dr Zimmerman, eventual reintegration into the community and further amelioration of recidivism risk through appropriate supports. This includes the need to synchronise the Applicant’s future release from a SECU with ‘comprehensive discharge planning,…referrals to all necessary support services’ and facilitating assessments ‘for access to supports and medical services through a combination of federal and state funding’.[126] Testimony from the guardian in the past has noted the unpredictability of how long it may take to successfully apply for placement under the NDIS and establish an entitlement to the ‘extensive services’ required.[127] The same can be said for gaining approval for a DSP and testing whether an Area Mental Health Service can provide ‘indefinite engagement’.[128] A financial administrator would need to be appointed through an application process to the VCAT, separate to the current guardianship, to progress a future DSP application.[129] The guardian’s evidence at the resumed hearing of this matter on 12 November 2024 is that this has now occurred.
[126] Exhibit R1, 683 [12]-[13].
[127] Ibid 682 [7];782-9.
[128] Ibid 682 [7].
[129] Ibid 787 [30]-[47].
Respondent’s submissions

In quashing the Tribunal’s decision, however, his Honour held that decision-makers are required to search for a connection to Aboriginality that may be ‘unarticulated but manifest from the materials before the Tribunal’.[153] The Tribunal is therefore required to review the lodged materials, in this case over 2000 pages, and identify any conflict between an applicant’s express non-identification as Aboriginal and contrary unarticulated representations or ‘integers’ that may be present in the evidence.[154] His Honour held that failing to do so is sufficiently material to constitute jurisdictional error.
[153] Ibid [101].
[154] Ibid [50], [54], [102].
The Applicant responded ‘No’ to a question in his Tribunal application asking if he is of Aboriginal or of Torres Strait Islander origin.[155] No aboriginality claims were advanced by his lawyers.
[155] Exhibit R1, 19.
Tribunal findings: strength, nature, and duration of ties in Australia
The Tribunal finds:
(a)There is no evidence about the impact of a decision in this matter on the Applicant’s immediate family members, friends, or other prosocial ties in Australia. Although there may be some unidentified ties he has drifted away from, the evidence reflects a long period of persistent drug and alcohol abuse and disengagement from family and friends. Given the context in which the Applicant became estranged from family members more than a decade ago, there may be some prospect that if his addictions can be overcome and his mental health stabilised, these relationships could be restored. This prospect is speculative at best.
(b)The Applicant arrived in Australia in 1997 and his first convictions were in 2004. It cannot be said, therefore, that his offending commenced relatively soon after arriving in Australia so that less weight is placed on this consideration.
(c)There is scant evidence of positive contributions by the Applicant to the Australian community through work or other ties. Little weight can be placed on this.
(d)In terms of aboriginality, the Tribunal is unable to identify any conflict between the Applicant’s express non-identification as Aboriginal, and other integers or contrary references that may raise an unarticulated case to the effect that he identifies as an Aboriginal Australian with ties to the Australian Aboriginal community.
The duration of the Applicant’s residence in Australia is long but has not been accompanied by the development of strong family or other prosocial ties. On the best reading of the evidence, only slight weight is placed on this primary consideration in favour of revocation.
Best interests of minor children in Australia affected by the decision
No submissions were advanced by either party regarding this primary consideration. The evidence does not disclose that the interests of any minor children are enlivened within the meaning of the Direction. It follows that this primary consideration carries neutral weight.
Expectations of the Australian community
Clause 8.5(1) of the Direction identifies the expectations of the Australian community:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.5(2) of the Direction states:
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is 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 refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.
Clause 8.5(3) of the Direction provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Clause 8.5(4) of the Direction provides that this consideration is ‘about the expectations of the Australian community as a whole’, and decision-makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case. This correlates with the reasoning in FYBR[156] where the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[157] The High Court then refused an application for special leave to appeal from the orders in FYBR v Minister for Home Affairs and Anor.[158]
[156] FYBRv Minister for Home Affairs (2019) 272 FCR 454, 471–2 [66] (Charlesworth J), 476 [91] (Stewart J) (‘FYBR’).
[157] Ibid 473 [75]–[76] (Charlesworth J).
[158] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
The High Court has more recently held in Ismail at [51]–[52] regarding this primary consideration in an earlier Direction (Direction 90):
Paragraph 8.4(4) is to be understood as directing the decision‑maker not to attempt to infer what the expectations of the Australian community would be “in the particular case” (that is, with the knowledge of the delegate about the applicant’s personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)‑(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)‑(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate’s reasoning accords with these requirements.
Tribunal consideration: Expectations of the Australian community
The following has been submitted on the Applicant’s behalf:
It is submitted that in the circumstances of the Applicant’s case, the expectations of the community should attract less weight because of the strength and cogency of the other considerations against refusal of the visa, especially the prospect of indefinite detention as a legal consequence of a decision to affirm and the applicant’s serious mental illness as a factor relevant to his history of offending and the effect of indefinite detention.[159]
[159] ASFIC dated 23 October 2023, 19 [86]; ASFIC, [28].
The prospect of indefinite detention has now been overtaken by events and during closing submissions Mr Hughan either amended or removed paragraphs [33]-[40] of the most recent ASFIC. That said, the Applicant does not concede this primary consideration weighs in favour of refusal.[160] It is contended that community expectations are best addressed by implementing Dr Zimmerman’s comprehensive treatment plan and that revocation best enables future support needs through permanent residency.
[160] ASFIC, 9 [45].
The Respondent submitted that the Applicant’s ‘long and increasingly serious trend of criminal offending’ is such that ‘this consideration weighs significantly against revocation’.[161]
[161] RSFIC, 18 [94].
Tribunal findings: Expectations of the Australian community
The High Court’s decision in NZYQ casts a different light on this primary consideration,[162] particularly the norm expressed at cl 8.5(1) of the Direction about not allowing certain non‑citizens to ‘enter or remain in Australia’. The Applicant was granted a BVR on 29 October 2024 and released into the community. If the reviewable decision is affirmed, he will remain in the community on a BVR. If the reviewable decision is revoked, his cancelled visa is restored, and he would no longer be subject to a BVR or its conditions.
[162] See, for example the Tribunal’s commentary in TTCT v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 1475.
For much of the last two decades the Applicant has acted contrary to the community’s reasonable expectation that non-citizens will obey Australia’s laws, respect important institutions, and not engage in conduct that harms others. His behaviour has persistently been at odds with the principles at cls 5.2(1)–(5) of the Direction. Some of his violent conduct, including against a woman at her home and when resisting police performing their duties,[163] raises serious character concerns within the ambit of cl 8.5(2)(c) and (d) of the Direction. The norm described as the expectations of the Australian community, notwithstanding a higher level of tolerance that ‘may’ be extended because of the Applicant’s long residence in Australia,[164] weighs against his application. It is noteworthy in this regard that the purpose of the BVR regime following NZYQ, while changing the complexion of this primary consideration, is focussed on community safety rather than how best to address unmet needs or facilitate an applicant’s future access to services.
[163] Exhibit R1, 166 [66], 312; 351-2, 874-6.
[164] The Direction (n 40) cl 5.2(6).
For the reasons discussed earlier, it is speculative to try and chart the unpredictable course of the Applicant’s future treatment needs. Doing so, or comparing which visa best accommodates those needs, strays into an independent assessment of community expectations, which is impermissible given FYBR and Ismail.
On balance, substantial weight against revocation is given to this primary consideration.
OTHER CONSIDERATIONS
As discussed earlier, both parties agree that cl 9.2 relating to extent of impediments, and cl 9.3 relating to business interests are not relevant to this matter.[165] Having considered the available evidence the Tribunal agrees and weighs these neutrally.
[165] Ibid 9 [44]; RSFIC, 11 [54], [56], 21 [106].
Legal consequences of the decision
Clause 9.1 of the Direction states:
9.1 Legal consequences of decision under section 501 or 501CA
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Tribunal consideration: Legal Consequences of the Decision
Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to certain Conventions, Protocols and Covenants, and ‘any obligations accorded by customary international law…of a similar kind to those mentioned’ in those treaties.[166] As held in Ibrahim v Minister for Home Affairs, non-refoulement obligations are ‘not confined to the protection obligations to which s 36(2) refers’.[167]
[166] For example, Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the ‘Refugee Convention’), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (‘ICCPR’).
[167] (2019) 270 FCR 12, 35 [103].
The Applicant has invoked fears of harm if returned to Ethiopia. Even though his Protection Visa was refused on 29 October 2024, a protection finding has previously been made in relation to him and he therefore falls within cl 9.1.1 of the Direction.[168] It follows that ‘there is no real prospect of [his] removal…becoming practicable in the reasonably foreseeable future’.[169] As noted earlier, refusal of his Protection Visa was immediately followed by release into the community on a BVR. It is not contested that while on a BVR the Applicant would fail to satisfy the residence requirements enabling applications for access to the NDIS or DSP. The following legal consequence has been advanced on his behalf (footnotes removed):
The effect of the Applicant being released into the community on a BVR, as opposed to as the holder of Preferential Family visa (or a protection visa) would be to negatively impact his treatment options and, subsequently, his welfare. In particular, eligibility for services under the National Disability Insurance Scheme (NDIS) and access to the Disability Support Pension (DSP) is restricted to Australian or New Zealand citizens and Australian permanent residents. If the Applicant were released on a BVR he would be excluded from the option of supports which were specifically recommended by Dr Zimmerman. The Applicant will receive assistance from his legal guardian, Ms Rosemary Barker, to access these services, which he would likely be eligible to receive if [h]e were to reside in the community with permanent residency status.
It may be contended that the grant of a BVR to the Applicant permits the imposition of certain conditions, including conditions that that may be alleged to promote the protection of all or a part of the Australian community. Any arguments to that effect cannot be said to counterbalance the removal of specialized therapeutic services referred to above.[170]
[168] ASFIC, 6 [30]-[31]; RSFIC (n 29) 19 [96].
[169] ASFIC, 6 [32].
[170] Ibid 7 [37]-[38].

The Minister submitted in response that:
eligibility for the NDIS or the DSP is a secondary matter in assessing the risk of further offending. These schemes do not provide for treatment of mental illness, but rather supports that are not clinical in nature. Even if the relevant residence requirements are satisfied, the Applicant’s eligibility for these supports will depend on an assessment of his impairment at the relevant time. That is, this eligibility will only become relevant (on Dr Zimmerman’s proposed treatment) once the Applicant’s schizophrenia and paranoia is in at least partial remission and his release from a SECU is being considered. Further, even if he is eligible at that time, such supports are likely to be of secondary importance to the Applicant’s prospects of rehabilitation and his risk of reoffending, as his ongoing medical treatment will need to be obtained from elsewhere and is not dependent on the availability of these supports.[171]
[171] RSFIC (n 29) 20 [104].
Tribunal findings: Legal Consequences of the Decision
The Applicant’s Protection Visa application was refused on 29 October 2024, following which he was released on a BVR,[172] pursuant to the High Court’s decision in NZYQ.[173] He is subject to some conditions, breaches of which may constitute a criminal offence.[174] The Applicant has sought merits review of the Protection Visa refusal decision and is now restricted in applying for other visas and prevented by s 48A of the Act, with certain restrictive exceptions turning on an exercise of Ministerial discretion, from applying for another Protection Visa while in the migration zone. The fact that he has been given conditional release into the community and is restricted in applying for other visas weighs somewhat in favour of revocation.
[172] Migration Regulations 1994 (Cth) sub-reg 2.20(12)(b).
[173] NZYQ v Minister for Immigration, Citizenship & Multicultural Affairs [2023] 97 ALJR 1005. The High Court held in NZYQ that constitutional limits apply on the executive detention of unlawful non-citizens under ss 189(1) and 196(1) of the Migration Act. In substance, the Court held that continuing detention under those provisions is unlawful if there is no real prospect of a non-citizen’s removal becoming practicable in the reasonably foreseeable future.
[174] The Act (n 11) pt 2 div 3 sub-div AF. See, e.g. ss 76B, 76C, 76DAA, 76DAB, 76DAC, 76DA, 76E.
The Applicant cannot be removed from Australia because of the protection finding in his favour. Section 198 of the Act no longer requires nor authorises his removal to Ethiopia. In the meantime, the Applicant will remain in the community under a BVR. He may also be subject to detention pursuant to the Mental Health and Wellbeing Act 2022 (Vic) and as of 12 November 2024 was subject to involuntary admission following an assessment by a Crisis Assessment and Treatment Team.
The legal consequence of the Tribunal deciding to set aside the reviewable decision in the current proceeding would be to restore the Applicant’s Class AY (Subclass 104) Preferential Family Visa. As a permanent resident, future applications could be made for access to services such as under the NDIS or for a DSP. If the Tribunal were instead to affirm the non-revocation decision, the Applicant would remain in the community on a BVR, continue to receive enhanced SRSS support, but could not apply for taxpayer-funded supports requiring permanent residency. There is no difference in the treatment he is currently receiving, however, which does not turn on the type of visa held.
There is no evidence about other possible options such as the prospect of third country removal, or the exercise of a non-compellable Ministerial discretion, or voluntary removal.
Irrespective of future decisions yet to be made or options that might emerge, the Tribunal accepts that non-revocation would be an adverse outcome for the Applicant. This includes because it may limit his future eligibility for support requiring permanent residency. That said, other factors highlighted earlier also bear upon implementation of the recommended treatment plan. Having identified some possibilities, the Tribunal is not required to engage in speculation or fact-finding about future events[175] and respectfully adopts the reasoning in Ali:[176]
The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4).
[175] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[176] Aliv Minister for Immigration and Border Protection [2018] FCA 650 [33].
In DOB18 at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:[177]
Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40] … Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making.
[177] DOB18 v Minister for Home Affairs [2018] FCA 1523.
No weight is placed on the prospect that the Applicant will be refouled or indefinitely detained. The legal consequences of a non-revocation decision are that he will remain in the community on a BVR and receive support available through the SRSS and/or possibly other community sources. He would not be able, however, to apply for access to services requiring permanent residency. On the very best reading of the available evidence this consideration only weighs somewhat in favour of revocation.
Additional considerations
No additional considerations were advanced by the parties under the non-exhaustive list at cl 9(1) of the Direction.
CONCLUSION
The Tribunal very much appreciates the assistance provided by Mr Hughan and Mr Penny, who appeared for the Applicant pro bono. Their written and oral submissions greatly assisted the Tribunal, and their contribution is in the finest traditions of the Australian Bars.
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the visa cancellation should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case.
The Applicant’s criminal history is extensive in terms of duration and scale. It includes persistent violence, drug abuse and repeated breaches of conditional liberty. He has been sentenced to multiple custodial terms for crimes such as aggravated burglary and recklessly causing serious injury. He has not been consistently compliant in custody. The overall trajectory of the Applicant’s crimes and other conduct is increasingly seriousness, including because of its persistence after a formal warning from the Respondent and the repeat nature of violent offences. His behaviour reflects a persistent disregard for Australian laws and indifference for the rights of others. The Applicant’s persistent addictions and long-standing mental health issues contextualise but in no way excuse his behaviour.
If the Applicant was to commit further violent crimes, devastating outcomes such as death, or physical injury, or serious psychological consequences could result. Violent offending, particularly the repetitive violent offending reflected in his criminal history, falls into a category of conduct where even a low probability of repeat is unacceptable.
For much of the last two decades the Applicant has acted contrary to the community’s reasonable expectation that non-citizens will obey Australia’s laws, respect important institutions, and not engage in conduct that harms others. His conduct has repeatedly been at odds with the principles at cls 5.2(1)–(5) of the Direction. Some of it raises serious character concerns pursuant to cl 8.5(2)(c) and (d) of the Direction. The community’s expectations, however, are of changed complexion after the High Court’s decision in NZYQ. The Applicant’s legal representatives contend that community expectations are best addressed by implementing Dr Zimmerman’s comprehensive treatment plan and through a revocation decision that enables future support applications requiring permanent residency. It is speculative, however, to try and chart the unpredictable future course of treatment or which visa may best accommodate the Applicant’s unmet needs, which strays into an impermissible assessment of community expectations.
The Applicant’s schizophrenia is inexorably intertwined with amphetamine use disorder. The Tribunal has considered the comprehensive treatment plan proposed by Dr Zimmerman and Dr Sullivan’s opinion regarding its prospects. The Tribunal accepts Dr Sullivan’s view that this plan reflects an ‘ideal scenario’ that ‘is not always possible’. This includes because of the inherent uncertainties and treatment ideals reflected in the MHA, resource limitations in the Victorian health system, and the speculative nature of applications for comprehensive supports yet to be made or considered. The Tribunal does not share the confidence expressed in the Applicant’s evidence about the likely course of future treatment.
In terms of the strength, nature, and duration of the Applicant’s ties to the Australian community, there is no discernible support from immediate family members, friends, or other prosocial influences. The evidence instead reflects the Applicant’s disengagement from others and a lonely life. There is scant evidence of positive contributions.
In terms of legal consequences, setting aside the reviewable decision would restore the permanent visa cancelled in this matter. The Applicant would then be entitled to apply for supports available to permanent residents, although what comes of these applications remains uncertain. If the Tribunal were to instead affirm the non‑revocation decision, the Applicant would continue to remain in the community on a BVR. He cannot be removed to Ethiopia as the subject of a protection finding. That said, non-revocation would be a significant, adverse outcome and may impact the future treatment plan envisaged by Dr Zimmerman. There is no evidence about any other option that may be considered in future, or what the Applicant, his guardian and/or lawyers may do about appeal rights accruing from a non-revocation decision.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary considerations Protection of the Australian community and Expectations of the Australian community, considerably outweigh the combined weight given to the countervailing primary and other considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.

135. I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC

................[sgd]........................................................
Associate
Dated: 13 December 2024

Date of hearing: 28 and 29 October and 12 November 2024

Counsel for the Applicant:

Solicitors for the Applicant:

Counsel for the Respondent:

Mr Greg Hughan with Mr James Penny

Refugee Legal

Mr Graeme Hill SC with Ms Laura Mills

Solicitors for the Respondent: Mills Oakley Lawyers

AATA 4013.