WKBF and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 232

WKBF and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 232 (21 January 2025)
Applicant/s:  WKBF
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/9000

Tribunal:Deputy President K Millar
Place:Adelaide
Date:21/01/2025

Decision:The Tribunal affirms the decision under review.

………[SGND]………….
Deputy President K. Millar
Catchwords
MIGRATION – visas – cancellation of visa on character grounds where substantial criminal record – request for revocation of cancellation decision under s 501(1) of the Migration Act 1958 (Cth) (“the Act”) – consideration of Ministerial Direction No. 110 – where applicant has protection finding under s 198 of the Act – consideration of protection of Australian community – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Guardianship and Administration Act 2019 (VIC)
Mental Health and Wellbeing Act 2022 (VIC)
Migration Regulations 1994 (Cth)
Cases
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Pearson v Commonwealth of Australia [2024] HCA 46
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKBF and Minister for Immigration, Citizenship and Multicultural Affairs [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
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
Statement of Reasons

This is a review of the decision not to grant the Applicant a Protection (Subclass 866) visa (‘protection visa’) under s 501(1) of the Migration Act 1958 (‘the Act’).
The Applicant applied for a protection after his Preferential Family (Subclass 104) visa was cancelled. His application for a protection visa was initially refused on the basis that the Applicant, having been convicted of a particularly serious crime, was a danger to the community.
This decision was set aside, and his visa application was then refused by a delegate of the Minister on the basis that he does not pass the character test.
BACKGROUND
The Applicant is a 44-year-old citizen of Ethiopia. He came to Australia in December 1997 when he was 17 years old to join his half-brother. He has been before the Tribunal on four previous occasions in relation to his character and his visa status. The Applicant has a severe mental illness and was unable to give evidence.
As he was unable to give evidence and did not appear before the Tribunal to explain his background, it is important to keep his circumstances firmly in mind in considering this matter and the consequences of the decision under consideration.[1]
[1] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 per Allsop CJ at [3].
The Applicant’s father died when he was young, and he lived with his mother and brother. His father had two wives, and his older half-brother and sisters were grown up and did not live with them. When war started in Ethiopia, the Applicant was sent to boarding school. While he was at boarding school, he was told his mother had died. He remained at the boarding school and was later told his half-brother had arranged for him to travel to Australia with his brother.
The Applicant claimed protection on the basis that his brother was involved in the communist government in Ethiopia. He says once a man came and put a gun to his head and asked where his half-brother was and recalls other people asking for his half-brother. He stated in his application for the protection visa that he feared returning to Ethiopia because he would be targeted and harmed because of his half-brother, and people who felt harmed by his half-brother would want to hurt him. He also claimed he would be unable to get the support he needs for his mental health and drug rehabilitation.
The Applicant has experienced mental health issues since 2006 when he started hearing voices but did not receive any treatment for this condition until he was in prison in 2008. He worked as a printer but was unable to continue in his trade due to his mental health. The Applicant states he started using methamphetamines in 2008 and has intermittently been on methadone.
On arriving in Australia, the Applicant initially lived with his half-brother and his wife but has not had any contact with them since 2013 when his half-brother discovered he had been in prison. He does not have contact with his younger brother. He thinks his sisters fled to countries neighbouring Ethiopia.
His convictions for criminal offending commenced in 2004, and the offence which has attracted the greatest penalty is aggravated burglary for which he was sentenced in 2008 to a term of imprisonment of 20 months.
The Applicant’s visa was cancelled in 2012, following convictions for trafficking cannabis, possessing a drug of dependence, burglary, theft, intentionally destroying property and unlawful assault for which he was sentenced to imprisonment for 12 months. His visa was not ultimately cancelled because of this offending, but he was issued with a written warning that visa cancellation may be reconsidered if he committed further offences or otherwise breached the character test, and that disregard of this warning would weigh heavily against him if his case were reconsidered.
His visa was again cancelled in 2018 following convictions for entering a private place without authority, possessing a dangerous article in a public place, resist an emergency worker on duty, commit indicatable offence while on bail and common assault. On appeal, he was sentenced to an aggregate term of imprisonment for 10 months.
The cancellation of his visa was affirmed by the Administrative Appeals Tribunal,[2] but was remitted by the Federal Court following an appeal.[3] The decision not to revoke the cancellation of his Preferential Family visa was affirmed by this Tribunal (differently constituted) on 13 December 2024.
[2] WKBF and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 4013.
[3] WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465.
The Applicant applied for a protection visa on 8 February 2019. He was initially found not to be a refugee or to meet the other requirements for a protection visa. However, in December 2020, this decision was set aside and remitted with a finding that he is a refugee. As a result, he has a finding that Australia has protection obligations towards him.
Notwithstanding this finding, his visa application was refused under s 36(1C) of the Act on the basis that he is a danger to the Australia community. On 13 November 2023, this decision was set aside by the President of this Tribunal and remitted for reconsideration with a direction that he meets s 36(1C) of the Act.[4]
[4] WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3728.
On reconsideration, the Applicant’s visa was refused under s 501(1) of the Act because he does not meet the character test, and this is the decision under review.
On 17 February 2023, the Victorian Civil and Administrative Tribunal (‘VCAT’) made an order under s 22 of the Guardianship and Administration Act 2019 (VIC) appointing the Public Advocate as the Applicant’s guardian to make decisions about where he lives, whether any services are needed, and if so, which ones, and issues relating to his visa status and immigration related detention. In making this order, VCAT was satisfied that the Applicant does not have capacity to make decisions about these matters. The Public Advocate remains the Applicant’s guardian until further order. The Public Advocate appointed Ms Rosemary Barker as his delegate to perform the functions of a guardian for the Applicant, and Ms Barker gave oral evidence at the hearing.
The Applicant was released from immigration detention on 29 October 2024 after being granted a Bridging Visa R (Subclass 070) Visa (‘BVR’). Accommodation was arranged for him by Status Resolutions Support Services (‘SRSS’) at a motel. He was granted a further BVR on 7 November 2024.
On 1 November 2024, VCAT made an order under s 23 of the Guardianship and Administration Act 2019 (VIC) appointing the State Trustee as the Applicant’s administrator to make decisions about all financial matters.
The Applicant was detained under an assessment order made under the Mental Health and Wellbeing Act 2022 on 2 November 2024 and admitted to hospital. Despite absconding on more than one occasion, he was returned to hospital, but was ultimately discharged on 22 November 2024.
On 16 December 2024, the Mental Health Tribunal made a community treatment order for a period of 6 months under s 192 of the Mental Health and Wellbeing Act 2022 (VIC). This order allows for compulsory treatment of the Applicant’s mental illness. It does not allow him to be treated as an inpatient in a hospital on an involuntary basis.
LEGISLATION
Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
The character test is set out at s 501(6) of the Act which includes at s 501(6)(a) that the person does not pass the character test if the person has a substantial criminal record as defined in s 501(7) of the Act. A person has a substantial criminal record if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c) of the Act). This includes an aggregate term of imprisonment.[5]
[5] Pearson v Commonwealth of Australia [2024] HCA 46.
If the Applicant does not meet the character test, the remaining issue is whether his visa should be refused.
DOES THE APPLICANT MEET THE CHARACTER TEST?
On 27 October 2008, the Applicant was convicted of aggravated burglary and sentenced to imprisonment for 20 months. As a result, he has a substantial criminal record as defined by s 501(6) and s 501(7)(c) of the Act and does not meet the character test.
SHOULD THE APPLICATION FOR A PROTECTION VISA BE REFUSED?
Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any directions given by the Minster (s 499(2A) of the Act).
The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and I must comply with the Direction.
Principles to guide decision making
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(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 non-citizen poses a measurable 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 measurable risk of causing physical harm to the Australian community.[6]
[6] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states in taking these into account that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)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.
(3)One or more primary considerations may outweigh other primary considerations.[7]
[7] Ibid cl 7.
THE PRIMARY CONSIDERATIONS
The Direction contains five primary considerations, which are:
(1) protection of the Australian community from criminal or other serious conduct;
(2)       whether the conduct engaged in constituted family violence;
(3)      the strength, nature and duration of ties to Australia;
(4)       the best interests of minor children in Australia;
(5)      expectations of the Australian community.[8]
[8] Ibid cl 8.
I have considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.
PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[9]
[9] Ibid cl 8.1(1).
The Tribunal is directed to 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.[10]
[10] Ibid.
The Applicant argues the protection of the community strongly favours the grant of the visa. This is because to be eligible for the National Disability Insurance Scheme (‘NDIS’) he must be an Australian citizen or permanent resident. Australian residency allows him to apply for a Disability Support Pension (‘DSP’) which has a higher rate of payment than the Special Benefit he currently receives. It is submitted that receiving services through the NDIS and receiving a higher rate of income support from a DSP will better protect the community as it reduces his risk of reoffending.
This argument arises because the Act does not require the Applicant to be removed from Australia under s 198 because a protection finding has been made. As there are currently no reasonable prospects of the Applicant being removed from Australia, he has been granted a Bridging Visa R (Subclass 070) visa (‘BVR’) and released from immigration detention consistent with the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.[11] The BVR continues until the Minister becomes satisfied that the Applicant’s removal from Australia is reasonably practicable, the Minister issues a written notice that the Applicant has breached a condition of his visa or another BVR is granted.[12] It is argued that as the Applicant cannot currently be removed from Australia, the protection of the Australian community favours the grant of the visa as receiving these services and this payment reduces the risk to the community.
[11] [2023] HCA 37.
[12] Migration Regulations 1994 (Cth) Schedule 2, Cl.070.511.
There are three aspects to his argument. This first is whether protection of the community contemplates a consideration of the steps required to prevent further criminal activity, the second is whether the BVR regime protects the community from harm as a result of criminal activity or other serious conduct, and the third is whether, as a question of fact, the Applicant has established that NDIS or a disability support pension will promote the safety of the Australian community and protect the Australian community from harm as a result of criminal activity or other serious misconduct.
Does this consideration allow for the prevention of further offending?
The Direction expressly states that the safety of the community is the highest priority of the Government, and that the Government is committed to protecting the community from harm as a result of criminal activity or other serious conduct by non-citizens. Given that this is the highest priority, it requires the Tribunal to examine any factors raised by the Applicant which may protect the community from harm as a result of further offending and to form a conclusion about these factors.
In assessing this, the Tribunal is directed in the latter half of the clause to have particular regard to the expectation that non-citizens are law abiding. The framework on which to assess this is also in the principles in cl.5.2 of the Direction. The protection of the community and whether it is best served by the grant of the visa must be considered in light of the principle that the Applicant should expect to forfeit the privilege of staying in Australia in accordance with cl.5.2(3) of the Direction.
Does the refusal of the visa protect the community?
The Applicant currently holds a BVR and will continue to do so and remain in the community unless this visa ceases. His BVR is subject to over 20 conditions. It is submitted this will only protect the community to the degree that the Applicant understands the conditions and complies with the conditions.
The conditions that relate to possession of certain materials and not being employed in specified occupations will not be onerous. Other conditions including that he must not become involved in activities disruptive to, or threatening harm to, the Australian community, reporting daily, notifying his residential address, notifying travel, and notifying changes in personal details will require some compliance on his part. He has the assistance of a guardian who can decide where he lives, and current access to services that may assist him to comply. He has a lengthy history of non-compliance with community corrections orders and bail agreements, the prospects of him complying with these conditions or decisions made by his guardian is uncertain and it is difficult to know if this is because he is unable or unwilling to comply.

These conditions are not unreasonable given his offending history. A knowledge of his whereabouts and a condition not to cause disruption or be involved in violence threatening harm to the community promotes the protection of the community. An ability to monitor his residence and location and to take action if he fails to comply with these conditions also provides protection to the community from further criminal activities. If he is unable to comply with these conditions because he is mentally unwell, this alerts immigration to this possibility.
A BVR will cease if certain circumstances occur that mean the person can be removed to another country. If the visa is refused, the Government can make further arrangements it considers necessary for the Applicant to depart from Australia and protect the community in that way.
In the Applicant’s circumstances, the grant of a BVR provides some level of protection of the Australian community from harm as a result of criminal activity by being able to locate him and the prohibiting him from violent or disruptive activities. It means that the Applicant can be removed from Australia if the circumstances change such that a protection finding would no longer be made or he has permission to enter and reside in a foreign country.
Will the grant of the visa protect the Australian community?
A submission that the grant of the visa will provide greater protection to the community because he can access services and a higher level of income support relies on the premise that he is a risk to the community. There is a tension between granting a visa so the Applicant receives services to prevent offending in the circumstances where the need to conduct this assessment arises because of the risk that the Applicant will reoffend. The gravity and likelihood of this risk occurring and the degree to which services that can be accessed with a permanent visa prevents this risk will inform an assessment of how the protection of the Australian community is best served in the circumstances of the case.
In this case, the Applicant submits that grant of a permanent visa will best protect the community from criminal conduct by him because he will be eligible to apply for funding under the NDIS and can apply for a DSP.
The Applicant would not require these services if he were in a Secure Extended Care Unit (‘SECU’). At the previous hearing before Justice Kyrou, evidence was provided that the most likely outcome on release from immigration detention was admission for a lengthy period in a SECU, with various options for a graduated return to the community. As this removed the Applicant from the community it removed the risk until his mental illness was in remission.
This is not what has eventuated. The Applicant had a relatively short admission of approximately three weeks and was discharged. He was not admitted to a SECU, and while his guardian says this remains the best option for him, it remains unavailable. The outcome is that the Applicant is in the community on a community treatment order which permits treatment for his mental illness regardless of his consent to that treatment.
The Applicant’s guardian gave oral evidence that the Applicant was released from hospital due to pressure on beds, and that an order was not made by the Mental Health Tribunal for inpatient treatment because there were no beds available. She said that she and the Applicant’s treating psychiatrists supported a community treatment order as that was the option available to them. As the Applicant has access to Medicare, this result would not differ if he held a permanent visa.
The Applicant points to the opinion of Dr Zimmerman, who states that NDIS funding could provide ‘additional daily support in making community linkages, bringing [the applicant] to appointments and ensuring ongoing engagement with treating services’.[13] Dr Zimmerman also states that “by treating his schizophrenia and engaging [the Applicant] in drug and alcohol counselling, there would be a sizeable reduction in risk. This would be enhanced given the current presence of his Guardian who can act to link [the Applicant] to NDIS support, appropriate housing, and the DSP.”[14]
[13] G-Documents (G22), 393.
[14] Ibid, 365 G4, 51 at [20].
In her oral evidence at the previous hearing, Dr Zimmerman said the supports a person receives under the NDIS varies enormously but for someone who is homeless, there is assistance linking with appropriate housing, linking with mental health services and assistance with shopping and connecting to local pro-social community groups.
In his report of 1 October 2024, Associate Professor Danny Sullivan states access to the NDIS or a disability support pension would reduce the likelihood of further offending because the funding would improve the Applicant’s quality of life, potentially assist in a meaningful occupation, and provide support.[15] Associate Professor Sullivan was not aware of access to specific services or funding but states the Applicant’s needs include accommodation, food, medication and health services, transport and leisure or discretionary spending. Limited access to funds was said to increase the likelihood of acquisitive offending or offending to obtain funds.
[15] Exhibit A2: Applicant Tender Bundle, “Psychiatric Report – Associate Professor Danny Sullivan”, 9.
The Applicant currently has access to Medicare and income support through Special Benefit, which is paid at a lower rate than disability support pension. He has access to SRSS services which include short term accommodation, assistance accessing income support and Medicare, linking to services such as health services and trauma counselling, and drug and alcohol services. Longer term SRSS services which can be provided for up to 12 months include assistance securing longer term accommodation, exploring training opportunities and accessing employment and adjustment and rehabilitation programs. The Applicant’s SRSS has been actively involved in his care including taking him to hospital for medication and calling an ambulance and his guardian when required.[16] In her report, Dr Zimmerman states that the services provide by the SRSS sounds similar to those provided under the NDIS.[17]
[16] His guardian stated that when an ambulance was called, it did not attend.
[17] G-Documents (G45), 779.
The most obvious difference is that SRSS services will cease, and that funding under the NDIS may be available on an ongoing basis.
The Applicant’s guardian explained she is working with the SRSS support worker to apply for disability support though VIN-Cos, a state-based program for people with a disability who are not eligible for the NDIS, but she was not aware the services that could be obtained through this scheme.
His housing, income support and health needs are currently met, but would be met to a greater level if he is granted a visa. He may be eligible for some disability services if he does not hold a permanent visa but would meet the residence requirements for the NDIS scheme if he holds a permanent visa.
The Advocacy for Oromia Society is willing to assist the Applicant to engage with the Oromia community, and Cabrini Outreach is willing to provide mental health support.
I am not persuaded that access to a higher level of services and income support will reduce the risk the Applicant poses to the community to a negligible risk, or reduce this risk significantly, because:
·     He has access to Medicare and an income support payment. His access to Medicare includes mental health services. He can access other non-government support in the community such as trauma counselling and connections with the Oromia community.
·     He will receive assistance from the SRSS for a period of up to 12 months following his release from immigration detention. This provides short term housing and may include assistance in accessing longer term housing. It assists linking to health services, trauma counselling, rehabilitation and drug and alcohol services.
·     He does not recognise he has a mental illness or that he requires treatment. The treatment he receives is administered on an involuntary basis. The protection of the community foreshadowed by Dr Zimmerman through admission to a SECU has not eventuated as he was not admitted to a long-term secure inpatient setting. His access to inpatient services and community mental health services is not affected by his visa status.
·     While he has a guardian who can consent to services and may be treated involuntarily for his mental illness under a community treatment order, he has a history of refusing services such as drug and alcohol counselling and treatment for his mental illness and this behaviour is likely to continue until his mental illness is in remission.
While the services and income support he may be eligible for with a permanent visa may increase the safety of the community, he is currently receiving health services, income support to a lesser amount, accommodation, and support services. I am not persuaded on the facts of this case that providing access to the NDIS and a higher rate of social security payment will result in the protection of the community where the Applicant’s greatest need is for mental health services which he can access, accommodation which he will have assistance to access, and drug and alcohol rehabilitation.
As a result, I am not satisfied on the information before that the grant of the visa will significantly increase the safety of the community or protect the community from harm as a result of criminal activity or other serious conduct, but the possibility that it will attracts some weight.
Proceeding to the remaining factors in the protection of the community, I have considered the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[18]
[18] The Direction, cl 8.1(2).
Nature and seriousness of the conduct
The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[19]
[19] Ibid cl 8.1.1(1)(a).
Criminal offending and other conduct
The Applicant’s first convictions were in 2004 for stating a false name and address, unlicensed driving, exceed the prescribed concentration of alcohol, failure to give left change direction signal, and driving over the speed limit.
On the same date he was convicted of intentionally causing injury, theft from shop, failure to answer bail, intentionally cause injury, assault with a weapon, and theft and given an aggregate sentence of imprisonment of one month to be served by way of a community corrections order. Convictions for intentionally destroying property, intentionally causing injury, assault with a weapon, and fail to answer bail were given an aggregate sentence of imprisonment for three months to be served by way of an intensive corrections order. A further conviction for theft attracted a sentence of 14 days imprisonment cumulative to be served by way of an intensive corrections order.
In 2007, he was convicted of wilfully damaging property, procuring the hire of a motor vehicle by fraud, driving while disqualified and unregistered, and breach of his intensive corrections order as well as failure to answer bail. His intensive correction order was cancelled, and he was required to serve the unexpired portion of 5 months. The same year, he was convicted of possessing a controlled weapon without excuse, stating a false name, and being drunk in a public place.
In 2008, he was convicted of aggravated burglary - person present and sentenced to 20 months in prison. He was also convicted of recklessly causing serious injury with a sentence of 6 months imprisonment, 3 months of which was concurrent. This offence is described in the sentencing remarks of Judge Gucciardo of the County Court of Victoria.[20] In summary, these offences followed an altercation between the Applicant and another person the two days earlier. The Applicant entered the house where the victim was staying. He slapped a male who was sleeping and twisted his ear. On discovering this was not the person he was seeking he apologised. He went upstairs and struggled with another male, stomping on another person’s face. Other people in the house were fearful and fled. Further confrontations occurred in the house before the Applicant was arrested at the scene. The Applicant said the person he was seeking had threatened him with a knife two days earlier.
[20] G-Documents (G7), 49-60.
This offending occurred when the Applicant was intoxicated, and the sentencing judge was advised that by the age of 22 the Applicant was drinking a slab of beer a day. The sentencing judge described the offending as being at the lower end of the scale but a serious offence, and the Applicant showed little remorse. The sentencing judge described the failure of the Applicant’s rehabilitation and considered the prospects of rehabilitation uncertain but not necessarily decided.
In 2011, the Applicant was convicted of using heroin and cannabis, possessing cannabis, hinder police and resist police, failure to answer bail (one conviction for 2 counts and another for 4 counts), and carrying a controlled weapon without excuse.
In 2012, there were convictions for possessing a controlled weapon without excuse and possessing anything without authority (police gaol) and issued with fines. He was also convicted of burglary, theft, intentionally destroy property and unlawful assault, trafficking cannabis and possessing a drug of dependence. He was sentenced to an aggregate term of 12 months imprisonment for these offences.
In 2014, he was convicted of intentionally damaging property, refuse or fail to state name and address and wilful damages and fined for these offences.
In 2015, he commenced offending in the ACT with reckless threat to inflict grievous bodily harm and sentenced to 6 months imprisonment.
In 2016, he was convicted of possessing a knife without reasonable excuse and sentenced to three months imprisonment which was suspended after 71 days with a good behaviour bond. He breached the bond in 2017 and was re-sentenced to 3 months imprisonment which was suspended. He was also convicted of failing to appear after a bail undertaking.
In 2017, he was convicted of failing to appear, theft (2 charges), possess cannabis, possess heroin, go equipped to steal/cheat, contravening a final personal safety intervention order (2 counts) and contravening a conduct condition of bail (2 charges). He was fined and sentenced to a community corrections order. The personal safety order was in respect of a person who had allowed the Applicant to stay in his unit because he was homeless. This person provided a statement to police that the Applicant tried to stab him with a knife and said he was going to take over the house, so he provided a document to the Applicant stating he must move out which the Applicant signed. The locks were changed; however, the door was kicked in, and while he denied breaking the door the Applicant arrived at the house. The police later found the Applicant at the house saying the house was his and he owned it.
In 2018, he breached the community corrections order and was sentenced to a term of imprisonment for 6 months. He was convicted of threat to assault an emergency worker, resisting an emergency worker on duty (2 counts), threat to inflict serious injury and committing an indictable offence while on bail. He was sentenced to a community corrections order which he breached the same year and was imprisoned for 6 months. He was convicted of a series of offences - without authority enter a private place, possess a dangerous object on a public place, resist an emergency worker on duty, commit an indictable offence while on bail, and three charges of assault. Following appeal, he was sentenced to an aggregate term of 10 months imprisonment.
The series of offences in 2018 is described in the police facts, and newspaper articles on the court proceedings. The Applicant is reported as having opened a car door of a car parked in the street when he was interrupted by the owner of the car. As she was fearful, the car owner ran into the house she had just left. The homeowners went to see what was happening but after being approached by the Applicant they retreated to their front yard and attempted to close the gate, but the Applicant pushed at it forcefully. On retreating into the house, one of the homeowners attempted to hold the door shut while the Applicant kicked at it. He was unsuccessful entering the house and left the property. He started banging on the doors and windows of another property stating he wanted them to leave the house and was going to drug them all. Police arrived and the Applicant yelled at them and waved his hands as he moved towards them. The police officer struggled to get the Applicant in handcuffs. A search of the Applicant located a metal pole and a pointed kebab skewer. A report of the court proceedings states the Applicant believed he lived at the address.
Those offences committed by the Applicant that involve violence, including intentionally cause injury, assault with weapon, and assault are viewed as very serious in accordance with cl.8.1.1(1)(a)(i) of the Direction. The crimes that involve threatening to assault an emergency worker and resisting an emergency worker on duty are viewed as serious in accordance with cl.8.1.1(1)(b)(ii) of the Direction as they are crimes against government officials in the performance of their duties.
Other Conduct
The Applicant is reported to have had poor conduct while in immigration detention. This conduct occurred in the context of immigration detention where the Applicant has a serious mental illness that was not related, and I have not considered this conduct further.
Sentence Imposed
The Applicant has been sentenced to many different terms of imprisonment for a variety of offences over a lengthy period of time. He has repeatedly breached community corrections orders and has been required to serve sentences of imprisonment as a result.
While this is in the context of his circumstances at the time and mental illness, the frequency and length of his terms of imprisonment has not provided the prompt required to obtain or comply with treatment for his condition or to address his drug use.
Impact on the Victim
Clause 8. 1.1(1)(d) requires the Tribunal to have regard to the impact on the victim of the offending where this information is available, and the Applicant has been afforded procedural fairness. In this case, there are records of the effect on the victim by way of a statement from the homeowner for the offences in 2017, and media articles quoting one of the victims of the offences in 2018. Given the Applicant’s mental illness, I am not satisfied he has had a reasonable opportunity to comment on this effect on the victims, and I have not considered this further.
Increasing Seriousness
The Applicant's offending commenced with less serious offences; however, he has been committing serious offences since 2008 that include burglary, threats to inflict grievous bodily harm and assault. From 2008 he has a history of offending toward the more serious end of the spectrum. As his offending has been consistently serious, it could not been said there is a trend of increasing seriousness.
Cumulative Effect
The Applicant has been convicted of over 60 offences over a period of 14 years. There is a considerable cumulative effect to his repeat offending.
False and Misleading Information
There is no information to show that the Applicant has provide false or misleading information.
Reoffending after being warned
The Applicant was warned in 2012 that further offending, or a breach of the character test may result in his visa being cancelled and that disregard of the warning will weigh heavily against him.

After this warning, the Applicant committed over 20 offences in the period 2013 – 2018. Formal warning has not changed his behaviour. He refuses treatment for his mental illness on a voluntary basis to address this cause of his offending, and while accepting methadone declined drug and alcohol counselling in the period prior to his release from immigration detention.
While the Applicant’s difficult background, drug use and mental illness provide the context for his criminal history, it does not detract from the nature of and seriousness of the conduct that has occurred and the need to protect the community from harm.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Clause 8.1.2 of the Direction states, in part:[21]
(1)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.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; 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).…
[21] See also the Direction, cl 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[22] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[23] There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[24]
[22] The Direction, cl 8.1.2(2)(a).
[23] Ibid cl 8.1.2(2)(b).
[24] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
Nature of the Harm
To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[25]
[25] The Direction, cl 8.1.2(2)(a).
If the Applicant were to reoffend in a similar way, there is a risk of injury to others, drug use in the community and burglary. There is a risk that he will cause others to be fearful due to his behaviour and that he will threaten or resist to emergency workers acting in the course of their duties.
Likelihood of the non-citizen engaging in further criminal or serious conduct
Dr Zimmerman, a consultant forensic psychiatrist, has provided seven reports about the Applicant since 2019, as well as a capacity assessment for the VCAT proceedings. Her most recent report is dated 16 October 2024.
Dr Zimmerman considers the Applicant suffers schizophrenia, with his illness characterised by grandiose and persecutory delusions, hallucinations, thought disorder and impaired judgement in the context of not taking medication. Dr Zimmerman reports the Applicant has a documented history of responding to antipsychotic medication in 2016 and responded gradually to treatment in 2018. He was willing to engage with drug and alcohol counselling and make plans to return to work as a printer in 2019 when taking antipsychotic medication.
In her most recent report, Dr Zimmerman states the Applicant is a moderate risk of reoffending. If released into the community without supports Dr Zimmerman considers the risk would be high, but if he was in at least partial remission and being managed by mental health services with accommodation and treatment for drug and alcohol use Dr Zimmerman considered the risk of violent recidivism would be low.
In his report 1 October 2024, prior to the Applicant’s release from immigration detention, Associate Professor Sullivan assessed the risk of reoffending to be high based on the risk management scales in the test conducted by Dr Zimmerman. Associate Professor Sullivan reported the risk was significantly mitigated while he was in the structured and highly staffed secure immigration detention facility. In the community, Professor Sullivan considered the effects of dynamic risk factors (relational, procedural, and physical security) would not be contained.
It is acknowledged by those involved in his case that there is at least a moderate likelihood of the Applicant engaging in further criminal conduct. While this risk was previously considered capable of being managed if the Application was in a SECU, admission to a SECU has not occurred and the Applicant is in the community on a community treatment order.
The likelihood of the Applicant engaging in further criminal or other serious conduct is affected by his mental health, drug use and other countervailing protective factors in the community.
Mental Health
The Applicant was involuntarily admitted to hospital on 2 – 22 November 2024. He is now on a community treatment order and has a guardian appointed.
In her previous reports, Dr Zimmerman said the longer the period of untreated psychosis, a longer period may be required to bring a psychotic illness into remission. The Applicant was not treated for his illness while in immigration detention as he refused treatment, and involuntary treatment was not available to him. It can be expected that it will take time for his conditions to be in remission. Dr Zimmerman’s evidence is that treatment for substance use will not occur until his mental health condition is in a least partial remission.[26]
[26] G-Documents (G22), 459.
Contrary to the outcome expected before he was released from immigration detention, the Applicant was not admitted to a SECU and is not currently subject to an inpatient treatment order. This means he remains in the community.
As reported by Dr Zimmerman, the Applicant has a well-established history of stopping treatment at the first opportunity.[27] IMHS reports that the Applicant was refusing oral medication from 2019. He was admitted to hospital on an involuntary basis from immigration detention in May 2023 and tested positive to methamphetamine.
[27] Ibid (G45), 776.
As recently as the hearing of the Mental Health Tribunal on 16 December 2024, the Applicant is reported as saying he does not have a mental illness. Following the order for compulsory treatment of his mental illness, the Applicant had to be persuaded to attend Dandenong Hospital by the SRSS worker to have his depot injection when it was due. The Applicant's current state of health increases the risk to the community. It is uncertain how long it will take for his condition to respond to treatment, and the degree he will pose a risk of reoffending when he is treated.
In his favour, Dr Zimmerman reports that the Applicant has a history of responding well to antipsychotic treatment and developing a degree of acceptance that he suffers from schizophrenia.[28] She believes that when treated he will be able to engage in measures to reduce his risk of reoffending. However, this opinion is based on his presentation some time ago in 2019, and when treated he was willing to engage in drug and alcohol rehabilitation and make plans to return to work as a printer. He has a lengthy period of refusing treatment after this time, and the degree to which he will respond to treatment after this lengthy period is unknown.
[28] Ibid (G45), 774.
The Applicant’s guardian reports that his hotel room was recently damaged while he was looking for listening devices because his mental health had deteriorated. The Applicant reported in December he has stopped taking his oral medication. He has had some treatment while in hospital and in the community, however this has taken considerable effort from the SRSS provider in convincing him to attend the hospital for medication.
Overall, the Applicant’s denial of his mental illness and the lack of voluntary treatment of this illness together with the connection between this illness and his offending to date indicates he is at least a moderate risk of reoffending and will remain a moderate risk until his mental illness is in at least partial remission.
Drug Use
The Applicant reported that he stopped taking methadone the day he was released from immigration detention.
The Applicant has a history of becoming unwell in the context of his use of methamphetamine. The IMHS report from 2019 is that he has been on and off methadone for six years. Dr Zimmerman considers he has an amphetamine use disorder and that any use of amphetamines will aggravate his psychotic illness.[29]
[29] Ibid (G22), 364.
Associate Professor Sullivan agrees that substance use counselling will be of little benefit while he remains psychiatrically unwell.
On admission to hospital from immigration detention in April 2023, he tested positive to methamphetamine. He has declined to be tested for drug use.
There is no information before me of any significant rehabilitation for the Applicant's past drug use. IMHS records show he declined to speak to the drug and alcohol team in immigration detention but accepted methadone. His guardian reports that she was told by the psychiatrist that the Applicant had admitted to drug use on admission, however there is no direct evidence before me of recent drug use and I do not have the discharge summary from this admission.
Advice from alcohol and drug rehabilitation services, and the evidence from Associate Professor Sullivan and Dr Zimmerman, is that his drug and alcohol rehabilitation cannot commence until his mental health is at least partially treated. Drug and alcohol treatment cannot be compelled.[30]
[30] Ibid (G45), 777 at [134].
The overlay of a mental illness with a drug use disorder means that he cannot commence drug and alcohol rehabilitation. Other than treatment with methadone, there is little information on other recent drug use rehabilitation and the risk of relapse into drug use and the deterioration of his mental health is therefore heightened. This in turn increases his risk of offending.
Protective Factors
The Applicant has a guardian and an administrator appointed. His guardian can make decisions about where he lives, the services he receives, and immigration matters, and his administrator can manage his financial affairs. These orders are ongoing until revoked or amended by VCAT. He is accessing mental health services and is on a community treatment order which provides for involuntary treatment of his mental illness in the community.
The Advocacy for Oromia organisation has said they are willing to assist the Applicant with engaging with the Oromia community.[31] He provide a letter stating Cabrini Outreach, an asylum seeker and refugee health hub, can provide mental health support to the Applicant in the community.[32]
[31] Ibid (G22), 415.
[32] Ibid (G22), 413.
The Applicant receives services through the SRSS which include temporary accommodation, and who can assist him in accessing longer term accommodation and other services for which he is eligible. Accommodation is linked to his offending and to effective treatment of his mental illness.
The SRSS worker has been actively involved in the Applicant’s care including taking him to the hospital for his depot antipsychotic medication and calling and ambulance for him.
While these are protective factors, I do not consider they significantly reduce the risk of reoffending until his condition is in remission and he has received drug and alcohol rehabilitation.
Overall, having considered the length and consistency of the Applicant’s offending, his refusal of treatment and his current mental health I consider him to be at least a moderate risk of reoffending.
REHABILITATION
The Tribunal is to consider evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the Applicant’s most recent offence.
The Applicant declined drug and alcohol assessment and services while in immigration detention and was prescribed methadone. He declined treatment for his mental illness. He is currently treated on an involuntary basis in the community.
He has been in the community since October 2024, with one period of admission to hospital. In this time there has been damage to his hotel room as a result of his mental illness.
CONCLUSION ON THE PROTECTION OF THE AUSTRALIAN COMMUNITY
The grant of a permanent visa may provide some protection for the community if the Applicant can access the NDIS and receive a higher rate of government payments. However, I am not convinced this significantly reduces the risk to the community or provides protection to the Australian community from further criminal acts. The Applicant remains at least a moderate risk of offending and had not had recent rehabilitation. Overall, this consideration weighs substantially in favour of not granting the visa.
FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
The Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.[33]
[33] The Direction, cl 8.2(1).
There is no information before me to indicate that the Applicant has perpetrated family violence, and this consideration does not weigh for or against the refusal of the visa.
THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant does not have contact with his immediate family, and I consider the decision does not have an impact on immediate family members, other than the loss of an opportunity to form these ties with his half-brother and brother in the future.
As the consideration in cl.8.2(2) of the Direction applies to a cancellation or revocation decision, and this matter is considering a refusal to grant a visa, this does not apply. However, I note the Applicant has been in Australia since he was 17 years old, and his offending commenced in 2004, when he was 24 years old. Submissions on his behalf acknowledge that his mental illness has made it impossible for him to engage and form ties as an adult but state that as this is the only home he has known as an adult, it weighs in his favour.
This consideration weighs marginally in favour of not refusing to grant the visa.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
The Applicant acknowledges that this consideration does not apply his case, and that it does not weigh either for or against refusing his visa application.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 would not allow them to enter or remain in Australia.
Clause 8.5(2) directs that 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 the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[34]
[34] Ibid, cl 8.5(2).
Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Tribunal is not itself to set the expectation of the community, as those expectations are expressed in the Direction.[35] This consideration will, in most cases, weigh in favour of refusing to grant a visa that if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
[35] FYBR v Minister for Home Affairs [2019] FCAFC 185.
As the Applicant has been convicted of an offence regarded as very serious by the community, as well as other convictions for offences regarded as serious, the community expects that he will not be granted a visa and that the government will not allow him to remain in Australia in accordance with cl 8.5(1) of the Direction.
Despite this expectation, the Applicant will remain in Australia because he is the subject of a protection finding unless he can be removed to a foreign country in accordance with the Act or decision is made that a protection finding would no longer be made. As he cannot currently be removed. The ability to remove him from Australia remains possible if his visa is cancelled.
In weighing this consideration, and guided by the principles in cl 5.2 of the Direction, I find this weighs heavily in favour of refusing the grant of the visa.
Other considerations
Clause 9 of the Direction states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)        legal consequences of the decision;
b)        extent of impediments if removed;
c)        impact on Australian business interests.
Legal consequences of decision under s 501 or 501CA

The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[36]
[36] The Directions, cl 9.1.
In general, if a person is an unlawful non-citizen, the person must be detained under s 189 of the Act and must be removed from Australia in accordance with s 198 of the Act.
Under s 197C of the Act, for the purposes of removal under s 198, it is irrelevant whether Australia has non-refoulment obligations. However, under s 197C(3) of the Act, the duty to remove does not require or authorise removal if the Applicant has made a valid application for a protection visa and in the course of determining the application a protection finding was made.
The Applicant made a valid application for a protection visa and a protection finding has been made. As a result, he will not be removed from Australia unless a decision is made under the Act that a protection finding would no longer be made, or a foreign country is identified to which he could be removed. As a result, Australia’s non-refoulement obligations are not engaged by a decision to refuse his visa.
Other legal consequences of the decision are that he will be prevented from making a further application for a protection visa under s 48A of the Act unless the Minister decided this section does not apply to him, and he will be prevented from applying for any visa other than a BVR under s 501E of the Act.
The legal consequence of refusing the visa application in the Applicant’s circumstances is that he will remain in the community on a BVR unless it otherwise ceases. This in turn has the consequence that he can potentially be removed from Australia in the future, that he is subject to the conditions of a BVR for an indeterminate period, and that he is not eligible for services in Australia that require him to be an Australian citizen or permanent resident, in particular funding under the NDIS or a disability support pension.
Potential Removal from Australia
As the holder of a BVR, the Applicant is defined as a ‘removal pathway non-citizen’ in s 5(1) of the Act. A removal pathway non-citizen can be directed under s 199C of the Act to do several things including doing things necessary to determine if there is a real prospect of removing the non-citizen from Australia in the reasonably foreseeable future or facilitating removal from Australia.
A person who cannot be removed because of a protection finding can be given a removal pathway direction the person can be removed to another country.[37] A removal pathway direction cannot be given to a non-citizen for a country to which they could not be returned because a protection finding has been made. This means that, at this point in time, the Applicant could not be given a removal pathway direction for Ethiopia.
[37] Section 199B of the Act.
A BVR held by a non-citizen will cease if the holder has permission to enter and remain in another country under s 76AAA of the Act. This can occur where the non-citizen has permission to enter and remain in a foreign country that is party to a third country reception arrangement that is in force. There is currently no foreign country identified to which the Applicant could be removed, but removal remains a possibility while he holds a BVR. It is not a possibility if he holds a permanent protection visa.
The Applicant raises the concern that if removed to a third country, he could be returned to Ethiopia from that third country. The Minister could not point to any law or policy that would prevent this occurring. It is difficult to progress this argument any further as there is no foreign country that is identified, and an assessment cannot be conducted of whether removal from that country to Ethiopia is a possibility.
The Applicant also raised the potential that he will be detained in a foreign country. This is because a third country reception arrangement may be entered under s 198AHB of the Act, which allows for agreement about third country reception functions. Third country reception functions are defined as including exercising restraint over the liberty of a person. The Applicant has not pointed to any third country receptions agreements in place, and the prospects of being returned to Ethiopia for a third country are speculative.
While there are no third countries identified, the prospect of being removed to another country, particularly given the Applicant’s need for treatment for his mental illness and drug rehabilitation, is an adverse outcome for the Applicant and attracts weight against refusing to grant the visa.
Subject to BVR conditions
The Applicant was first granted a BVR on 29 October 2024 as there were no reasonable prospects of him being removed from Australia becoming practicable in the reasonably foreseeable future in accordance with the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.[38] This visa included conditions that he wear an electronic monitoring device and that he abides by a specified curfew. These conditions were found by the High Court to be invalid.[39]
[38] [2023] HCA 37.
[39] YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40.
He was granted a further BVR on 7 November 2024 and the previous BVR ceased on the grant of another BVR.[40] His current BVR is not subject to electronic monitoring or a curfew.
[40] Migration Regulations 1994 (Cth) sch 2 pt 070 cl.070.511(c)(iii).
A BVR ceases on the Minister giving notice that the Minister is satisfied that the visa holder’s removal from Australia is reasonably practicable, or the holder has breached a condition to which the visa is subject.[41]
[41] Ibid, cl 070.511.
The BVR granted to the Applicant is subject to 21 conditions. While many of these conditions will not cause the Applicant difficulty at present, some will be onerous, and will have a different impact on the Applicant compared to those who do not have a mental illness. For example, condition 8303 which attaches to his visa states he must not become involved in activities disruptive to, or violence threatening harm to Australian community or a group within the Australian community. The Applicant’s guardian has described damage to his hotel room while the Applicant searched for listening devices he believed were in the room because of his mental illness. He is also required to report daily which may be more difficult for him given his condition. Similarly, he must notify of his residential address, notify of travel and changes in personal details.
The Applicant submitted in the context of the protection of the community that the protection these conditions give to the Australian community are only as great as the Applicant’s ability to comprehend and comply with the conditions. A breach of these conditions can also result in the cancellation of his BVR, however as noted by the Minister, as he cannot be detained while there is no reasonable prospect of his removal, this would again result in his release on another BVR.
The legal consequence of the decision to refuse his visa is that the Applicant is subject to a BVR for an indeterminate period of time. In his circumstances, this is more onerous because of his mental illness and also weighs against refusing to grant the visa.
Eligibility for services
If he is not granted a permanent visa, the Applicant will not be eligible for services that require him to be an Australian citizen or permanent resident. These services include the NDIS and a disability support pension. This weighs marginally in favour of not refusing to grant the visa.
Overall, the legal consequences of the decision weigh moderately in favour of not refusing to grant the visa.
Extent of impediments if removed
Clause 9.2 of the Direction provides the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. This must consider the Applicant’s age and health, language, and cultural barriers and social, medical and/or economic support available to the Applicant in their country.
The Applicant will not be removed from Australia because there is a protection finding that prevents his removal unless a finding is made under s 197D that a protection finding would no longer be made or a foreign country gives permission to enter in reside in that country and his BVR ceases.
While remaining mindful of the Applicant’s mental illness, there is no known country to which the Applicant can be removed. As he will not be removed, this does not apply.
The Applicant submits this does not apply to the circumstances of his case and does not weigh for or against refusing the visa.
Impact on Australian business interests
Clause 9.3 of the Direction states that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This also does not apply and does not weigh for or against refusing the visa.
CONCLUSION
The Applicant does not pass the character test, and I must consider whether his application for a visa should be refused.
Clause 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.
As stated previously, there has been extensive judicial consideration on the exercise of balancing and weighing considerations contained in the relevant Ministerial Directions (considering a number of Ministerial Directions preceding the Direction).[42]
[42] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (‘CRNL’) said “[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together.”[43]
[43] [2023] FCAFC 138, [28].
In determining the weight to be applied to each consideration, I have considered the primary and other considerations and weighed them using the guidance provided by the Direction. The protection of the community, which is given greater weight than the other considerations in the circumstances of this case, weighs substantially in favour of not granting the visa. Of the other primary considerations, the expectations of the community weigh heavily in favour of not granting the visa. These considerations are generally to be given greater weight than the other considerations, and I accord then this weight accordingly.
Of the other considerations, the legal consequences of the decision weigh moderately in favour of not refusing the grant of the visa, the Applicant’s ties to Australia are marginally in favour of not refusing to grant the visa, and the impediments weigh slightly in favour of not refusing the visa.
In bringing these considerations together, I consider that the protection of the community and the expectations of the community outweigh the legal consequences of the decision, and the Applicant’s ties to Australia. As a result, the decision not to grant the Applicant a visa is affirmed.
DECISION
The decision under review is affirmed.

Date of hearing:

8 and 9 of January 2025

Counsel for the Applicant:
Nikolas Barron

Solicitors for the Applicant:
Galen Jaffurs, Refugee Legal

Counsel for the Respondent:
Chris McDermott

Solicitors for the Respondent:
Christopher Henies, Mills Oakley

Date of hearing:	8 and 9 of January 2025
Counsel for the Applicant:	Nikolas Barron
Solicitors for the Applicant:	Galen Jaffurs, Refugee Legal
Counsel for the Respondent:	Chris McDermott
Solicitors for the Respondent:	Christopher Henies, Mills Oakley