WKBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 4013

WKBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4013 (1 December 2023)
Division:GENERAL DIVISION
File Number: 2023/6813
Re:WKBF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President D. Dragovic
Date:1 December 2023
Place:Melbourne

The reviewable decision is affirmed.
...................................[SGD].....................................
Deputy President D. Dragovic
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of Class AY Subclass 104 Preferential Family visa – substantial criminal record – failure to pass the character test – whether there is another reason to revoke the visa cancellation – Direction No 99 – citizen of Ethiopia – diagnosis of schizophrenia and florid psychosis – drug and alcohol dependency – protection visa application – appointment of guardian – long history of offending – protection of Australian community – strength, nature and duration of ties to Australia – expectations of the Australian community – legal consequences of decision – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Mental Health and Wellbeing Act 2022 (Vic)
Migration Act 1958 (Cth)
Cases
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37
SPFH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 97
WKBF and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3728
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (23 January 2023)
Supplementary Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2011 (Cth)
REASONS FOR DECISION
Deputy President D. Dragovic
1 December 2023
INTRODUCTION

The Applicant is a 43-year-old male who holds Ethiopian citizenship. Relevantly, he was diagnosed with schizophrenia and as floridly psychotic.[1]
[1] ATB p28.
The Applicant arrived in Australia on 13 December 1997 on a Preferential Family visa (AY 104). At the time, he was 17 years old.
Beginning in 2002 the Applicant committed a series of offences that continued through to 2018 when the Applicant was, not for the first time, sentenced and served a prison term through to 30 December 2018.
As a result of these offences the Applicant’s visa was mandatorily cancelled on 18 September 2018 under s 501(3A) of the Migration Act 1958 (“the Act”) and immediately upon release from prison he was transferred to what was then known as the Melbourne Immigration Transit Authority on 30 December 2018.
The Applicant was renotified of the cancellation on 3 March 2022 as the original notification did not comply with statutory obligations. During the interim period between the original notification and re-notification the Applicant remained in immigration detention. As such the Applicant has not been in the community since 2018.
The renotification invited the Applicant to make representations to the Department of Home Affairs (‘the Department’) in relation to whether there was ‘another reason’ under section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of his visa. The Applicant did so by way of submissions dated 24 May 2022 and 21 December 2022 requesting the revocation of the cancellation. The Minister’s delegate decided not to revoke the mandatory cancellation in a decision dated 7 September 2023. On 8 September 2023 the Applicant was notified of that decision and on 15 September 2023, he applied for review of the decision to the Tribunal.
This decision pertains to the request for revocation of the mandatory cancellation of the Applicant’s Preferential Family Visa and specifically on the basis of the delegate’s decision of 7 September 2023 (the reviewable decision) to refuse the request for revocation.
Preceding this matter, a separate matter of the Applicant was heard by the President of the Administrative Appeals Tribunal (AAT), his Honour Kyrou J. This separate matter relates to an appeal of a decision by the Minister’s delegate to refuse the Applicant a protection visa. The Applicant was found to be owed protection as the Applicant met the criteria under s 36(2)(a) but the Minister’s delegate in that instance determined that the Applicant was a danger to the community and as such refused the visa under s 65 of the Act on the basis that the Applicant failed to satisfy the criterion in s 36(1C) of the Act.
That separate matter was decided by Kyrou J on 13 November 2023. Kyrou J set aside the decision under review and remitted the matter to the respondent for reconsideration with a direction that the Applicant satisfied the criterion in s 36(1C)(b) of the Act and that he was not ineligible for the grant of a protection visa pursuant to s 36(2C)(b)(ii).
The nature of the legal questions in the matter heard by the President and the one before this Tribunal overlap only insofar as both matters, broadly speaking, engage with the level of risk or danger to the community that the Applicant poses. The matter heard by the President turns only on whether the Applicant is considered a ‘danger to the Australian community’[2] without any discretion. In the case before me, on the other hand, arising from s 499 of the Act and Direction 99, there is a wide range of discretionary considerations that must be taken into consideration if it is found that the Applicant does not pass the character test. As such, noting that the differences in the matters to be considered are not interconnected, the matter before this member proceeded before a decision was finalised in the matter heard by the President of the AAT.
[2] Migration Act 1958 (Cth) s 36(1C).
A transcript of a portion of the hearing before the President of the AAT, namely the evidence provided by the forensic psychologist Dr Zimmerman and by the Applicant’s guardian, Ms Barker, was tendered to the Tribunal by the Applicant. The President’s written reasons for his decision, delivered two days before the hearing in this matter, was also tendered as evidence by the Respondent and, as such, available to all parties.
The relevant question for this matter is twofold: whether the Applicant passes the character test and if he does not, whether there is another reason why the cancellation should be revoked having regard to the principles and the matters for consideration prescribed under Ministerial Direction 99 (“the Direction”).[3]
[3] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA.
A hearing was conducted on 15 November 2023. The Applicant did not appear for reasons that are detailed further below. He was represented by Mr A. White as Counsel and Mr G. Jaffurs, Solicitor at Refugee Legal. The Minister was represented by Mr C. McDermott who was instructed by Mr M. Daly.
The Tribunal had regard to the documents listed in Annexure A.
For the following reasons the Tribunal affirms the reviewable decision.
Procedural matter – Applicant’s ability to give evidence at the hearing
The Applicant has been diagnosed with schizophrenia and depression by Dr Nina Zimmerman, Forensic Psychiatrist. Six of her reports were made available to the Tribunal beginning with an initial psychiatric report dated 14 August 2019 through to the most recent, a supplementary psychiatric report dated 30 August 2023.[4]
[4] Psychiatric Report dated 14 August 2019 (G2, 79-92); Supplementary Psychiatric Report dated 8 October 2020 (G2, 93-101); Psychiatric report dated 23 April 2021 (G2, 128-140); Psychiatric Report dated 20 August 2022 (G2, 185-201); Capacity assessment report dated 27 January 2023 (Applicant’s Tender Bundle (ATB) 6, 64-74); Psychiatric Report dated 12 July 2023, (ATB 2, 17-47), Supplementary Psychiatric Report dated 30 August 2023 (ATB 1, 2-16).
The most recent report dated 30 August 2023 referred to the earlier reports and emphasised that they should all be read in conjunction. The two most recent reports from July 2023 and August 2023 provide the most up to date assessments and opinions by Dr Zimmerman and, as such, are given greater weight in this decision in any instance of a conflicting view.
In addition, Dr Zimmerman provided oral evidence in the matter heard by the President of the AAT at hearings conducted on 4 and 5 October 2023. A transcript of the hearing was provided to the Tribunal by the Applicant as a part of their tender bundle.[5]
[5] ATB pp89-162.
Dr Zimmerman did not provide evidence at this matter’s hearing.
In the report dated 12 July 2023 the question of the Applicant’s capacity to provide evidence was posed to Dr Zimmerman. She explained her reasons for finding that the applicant, ‘could not currently meaningfully take part in a hearing relating to his immigration status as a direct result of his psychosis.’[6]
[6] ATB p35.
The reasons provided by Dr Zimmerman included that the Applicant has grandiose delusions. He is of the view that he has a visa, that he is in detention only because of nefarious actions, including by his lawyers. He does not believe that there is any hearing that is scheduled relating to an immigration matter as he has no immigration issues.[7]
[7] ATB p35.
This report was available to both parties, and the Applicant’s absence from the hearing due to a lack of competence and capacity was reiterated by way of email correspondence dated 23 October 2023 from Mr Jaffurs to the Tribunal copying Mr Daly. At no stage did Mr Daly provide an alternative assessment of the Applicant’s capacity to meaningfully participate, nor did he request the Applicant make himself available.
As such, the hearing proceeded without the Applicant’s presence and without receiving oral evidence from the Applicant.
Accordingly, and in agreement by the parties, the matter proceeded on the documentary evidence alone without any witnesses.
Appointment of a Guardian
On 17 February 2023 a Public Advocate was appointed as the Applicant’s guardian. In a statutory declaration dated 3 August 2023 Ms Rosemary Therese Barker outlined her powers including to make decisions about legal proceedings and specifically on personal matters such as where the Applicant lives, where and which services the Applicant requires and ‘issues involving [WKBF’s] visa status and immigration related decision.’[8]
[8] ATB p48.
In her written submission Ms Barker noted that she is required to consider ‘the least restrictive option which takes into account [WKBF’s] will and preference, unless it is necessary to override his will and preference to prevent serious harm.’[9]
[9] ATB p48.
The guardianship order remains in place until the Victorian Civil and Administrative Tribunal (VCAT) makes another order with the caveat that there is a requirement to reassess the order no later than 31 March 2024.
Ms Barker also identified her responsibilities with regards to assisting to facilitate access to services recommended by treating medical practitioners. The nature of the possible assistance was identified in her statutory declaration as including:
Authorising any further medical assessments or orders required for his appropriate care, treatment and accommodation, through the Mental Health Act 2014 or other statutory processes;
Assisting in making referrals to and facilitating access to medical practitioners, support or social work services or community-based organisations as appropriate;
Facilitating assessments for eligibility to the NDIS, Centrelink, the Disability Support Pension ("DSP") and other support programs, as appropriate;
Making decisions regarding [WKBF’s] personal circumstances, including his accommodation, whether he needs any services, issues in relation to his visa status and immigration-related detention and whether he needs to have an administrator appointed to manage his financial affairs.
It is apparent that [WKBF’s] medical needs may change and more up-to-date medical recommendations may be made. Dr Zimmerman has herself noted that a placement in a Community Care Unit or Prevention and Recovery Care Unit are no longer appropriate for example. If that is the case, I can make appropriate decisions lo address his changing needs as necessary, including consulting with [WKBF] to determine his will and preference or alternatively to promote his social and personal wellbeing.[10]
[10] Ibid p49-50.
Further details arising from Ms Barker’s statement and oral evidence are included in the below sections as and when relevant.
CONSIDERATIONS
Finding on the character test
The Applicant has a criminal record of offending spanning the years from 2002 through to 2018 when he entered prison before he was released and immediately moved to immigration detention. The offending includes 47 entries on the criminal history check.[11]
[11] G-Documents 2, 37-42
An accurate summary of the most serious offending was provided by Mr White in his submission which states:
(1) On 16 November 2004:
(a)intentionally cause injury, intentionally destroy property, for which the Applicant was sentenced to an aggregate sentence of three months’ imprisonment to be served by way of intensive correction order; and
(b)intentionally cause injury for which the Applicant was sentenced to pay $100 compensation and one month imprisonment to be served cumulatively by way of intensive correction order.
(2) On 27 October 2008, recklessly cause serious injury and aggravated burglary (person present), for which the Applicant was sentenced to a total effective sentence of 23 months’ imprisonment.
(3) On 24 April 2012, burglary, trafficking cannabis and intentionally destroy property, for which the Applicant was sentenced to a total effective sentence of 12 months’ imprisonment.
(4) On 24 August 2015, recklessly threaten to inflict grievous bodily harm for which he was sentenced to six months’ imprisonment to be suspended after four months and three weeks on condition that the Applicant sign a good behaviour undertaking for a period of 12 months.
(5) On 13 February 2018 for threaten to assault emergency worker, resist emergency worker on duty and threaten to inflict serious injury, for which the Applicant was sentenced to a community corrections order for 12 months.
(6) On 22 November 2018 for without lawful excuse entering a private place, possess dangerous article in a public place, resist emergency worker on duty, for which the Applicant was sentenced to a total effective sentence of ten months’ imprisonment.
Section 501(6)(a) of the Act, the Character test, states:
For the purposes of this section, a person does not pass the character test if:
the person has a substantial criminal record (as defined by subsection (7));
Subsection (7) of the Act states:
For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
It was not in dispute between the parties that the Applicant does not pass the character test for reasons of having been sentenced to a term of imprisonment of 12 months or more. As such, I find that he does not pass the character test and that his visa is cancelled by operation of law.
Whether there is another reason why the cancellation should be revoked
Under s 499 of the Act the Minister may give directions to those who have functions and powers under the Act. Those with such functions must comply with any given directions. Direction 99 is relevant to matters of revocation of a mandatory cancellation of a visa under s 501CA of the Act.
The Direction has overarching principles along with primary and other considerations that should be considered with detailed guidance under each. The primary considerations are:
·protection of the Australian community from criminal or other serious conduct
·whether the conduct engaged in constituted family violence
·the strength, nature and duration of ties to Australia
·the best interests of minor children in Australia
·expectations of the Australian community
The other considerations are:
·legal consequence of the decision
·extent of impediments if removed
·impact on victims
·impact on Australian business interests
Informed by the Preliminary guidance in Part 1 of the Direction, I now turn my mind to applying the guidance to exercising the discretion as to whether there is another reason why the cancellation should be revoked as detailed in Part 2 of the Direction.
The potential impact of other decisions in the consideration of discretion
Before turning my mind to the considerations outlined in Direction 99 it is relevant to review the impact of the High Court decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37 (‘NZYQ’) and the earlier but separate matter of WKBF and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3728 heard by Kyrou J.
The impact of NZYQ
NZYQ is a High Court decision relating to a stateless Applicant who arrived in Australia in 2012 and was subsequently convicted of a sexual offence against a child for which he was sentenced to a term of five years imprisonment with a non-parole period of three years and four months. He was released from prison in 2018 and has been detained in immigration detention since that time. Arising from an application for a Safe Haven Enterprise Visa (‘SHEV’) a delegate of the Minister refused NZYQ’s SHEV application, pursuant to s 65 and relying on s 36(1C) of the Act, as he was found to be a danger to the Australian community. However, and relevant to the matter before this Tribunal, the delegate also found that NZYQ engaged Australia’s protection obligations arising from a well-founded fear of persecution were he to return to Myanmar. As such, due to s 197C(3) of the Act, the consequence was that NZYQ could not be removed to Myanmar and therefore remained in detention.
NZYQ appealed to the High Court in April 2023 contesting his detention under ss 189 and 196 of the Act that authorise his detention until he is removed from Australia, which is required to be ‘as soon as reasonably practicable’ under s 198(1). In the case heard by a full bench of the High Court, NZYQ argued that either the law is such that he would be required to spend the rest of his life in detention or alternatively, which was his preferred interpretation, if removal ceases to be a practical possibility, then the detention must cease.
At the time of the hearing, the High Court had not published its Reasons for Judgment, but its orders included a declaration as follows:
by reason of there having been and continuing to be no real prospect of the removal of NZYQ from Australia becoming practicable in the reasonably foreseeable future:
(a) NZYQ’s detention was unlawful as at 30 May 2023; and
(b) NZYQ’s continued detention is unlawful and has been since 30 May 2023.
At the hearing Mr McDermott requested an opportunity to make post-hearing submissions relating to how the outcome of NZYQ would impact the matter before this Tribunal. It was agreed that such submissions would be made by 24 November 2023 and that a response to any such submissions by Mr White would be made by 29 November 2023.
In Mr McDermott’s submissions he argued that NZYQ only impacts the Applicant’s matter if or when the duty to remove a non-citizen arising from s 198 is enlivened. But it was his view that there is no real prospect of such removal in the reasonably foreseeable future and, as such, NZYQ does not have immediate consequences because the Applicant has a pending protection visa that has not been ‘finally determined’ and therefore the duty to remove him has not arisen under s 198.

Mr McDermott submitted that the Applicant will not face indefinite detention if either (a) he is granted a protection visa, or (b) the request for revocation of the Preferential Family visa is refused in this decision and he is not granted a protection visa. In the latter case, Mr McDermott submitted that the duty to remove the Applicant under s 198 and the prohibition in s 197C(3) of the Act would be engaged. But as he could not be removed from Australia due to the existence of a protection finding and the applicant not having an alternative third country to be removed to, then arising from NZYQ, Mr McDermott conceded that the Applicant would be released into the community.
Mr White wrote in response that considering the Minister has opposed the revocation of the cancellation in this matter there is a real chance, if not likely, that the Minister will do the same and refuse the protection visa under s 501. In such a case the time that it would take would have ‘no fixed chronological end point and could be very lengthy.’
Mr White suggested that if the Respondent’s concession that the Applicant would be released could be relied upon,[12] this would only occur after the visa was finally determined and that such a period would be ‘prolonged’.[13]
[12] Applicant’s Response to the Respondent’s Supplementary Submission, 26 November 2023 at [3]
[13] Applicant’s Reply to the Respondent’s Statement of Facts, Issues and Contentions, 10 November at [10]
Finally, Mr White noted that the medical evidence suggested that ‘any additional time in detention will damage the Applicant’s health’ and that a ‘delay measured in months or years would be life threatening.’[14]
[14] Applicant’s Response to the Respondent’s Supplementary Submission, 26 November 2023 at [9]
The High Court’s reasons were published on 28 November 2023. Following their publication, the Tribunal offered an opportunity to the parties to present oral arguments on 30 November 2023 regarding any relevant issues that may arise from the reasons. Both the Respondent and Applicant chose not to present any further oral submissions.
The impact of the decision by the President of the AAT in WKBF
As noted above, a decision was made by Kyrou J remitting for reconsideration the delegate’s decision to refuse the Applicant a protection visa on the basis of s 36(1C). This returned the Applicant onto a pathway towards obtaining a protection visa, but not without further stages through which the applicant must progress which could include refusal.
Being cautious not to pre-empt the Department’s processes, including the decision-making processes of other delegates of the Minister, I find that the Applicant will remain without a visa and in immigration detention for some time, a period for which clarity was sought at the hearing and is discussed in further detail below.
Primary Consideration 1: Protection of the Australian Community
Direction 99 instructs decision-makers 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.’ In addition, the Direction states that decision-makers should also consider the nature and seriousness of the conduct and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the Applicant’s conduct to date
The nature of the Applicant’s conduct was made available to the Tribunal in the G-Documents as well as submissions by the Applicant and Respondent. It included, among others, the Applicant’s criminal history check, news articles, transcript of proceedings from the associated Tribunal matter WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3728, and material from the County Court of Victoria, Melbourne Magistrates’ Court, ACT Magistrates’ Court, and Victoria Police.
The Applicant’s most serious offence according to the length of sentence was one count of Aggravated Burglary – person present which occurred on 27 October 2008. It was noted that the Applicant received a sentence of 20 months imprisonment. In addition, on the same day he was sentenced to 6 months imprisonment (3 months concurrent) for Recklessly cause serious injury. The combined period of incarceration was 23 months.
In the Reasons for Sentence at [5]–[10] Judge Gucciardo provided a description of the Applicant’s offending on that occasion:
On 22 December, Xxxx hosted a Christmas gathering at his home at xxxxxxxxxxx Street, Balaclava, and a number of witnesses including Xxxxxx, Xxxxxxxxxxxxxxx, Xxxxxxxxxxxxxxx and Xxxxxxxxxxxxx were present. At about 7 a.m., the people at the gathering went to bed. Xxxxxx slept on a mattress on the floor of a bedroom that was upstairs. Xxxxxxxx also went to sleep in that room on a bed. Xxxx was asleep in his bedroom downstairs. Xxxxxx and Xxxxxxxxxxxxxxx went to sleep in a downstairs bedroom at the front of the house.
Sometime during the morning, Xxxxxxxx heard a male yelling at the back of the house, who had obviously entered, uninvited, using the unlocked rear door. She heard you yelling as you entered the house. You then entered one of the downstairs bedrooms and approached Xxxxxxxxxxxxx, who was lying in bed. Xxxxxxxx saw you approach Xxxxxx, who was sleeping. You slapped Xxxxxx on the side of the face and said, "Wake up, you tried to stab me with a knife." Xxxxxx recalled being woken by you. You were twisting his ear; you were saying, "Get up, get the fuck up out of bed, are you Scottie?" He replied, "No, he's upstairs." You sat on the bed and apologised to him, saying, "I'm after - I'm just after Scottie."
You then left the downstairs bedroom and went upstairs, where you entered and went to the male in the bed. He was not able to recall the exact sequence of events, but recalled you got on top of him, and he struggled with you. While Xxxxxx was lying on his back you stomped on the complainant's face just under his nose, causing him injury. The two of you continued to struggle, and throughout the struggle he sought to ask you why you had a problem with him. At some point, Xxxx came running into the room and pinned you down. During the struggle, Xxxxxxxxxxxxxxx was fearful and left the bedroom. She heard you ask Xxxxxx, "Why did you do that?" in reference to the incidents at the Crown carpark. As I said, Xxxx ran into the room and saw you and Xxxxxx wrestling and punching each other. He asked you to leave the house. He took you to the bathroom and noted that you had a gash on your forehead. It is clear from the witnesses' statements that the women in particular were particularly fearful and scared of the events at the house.
There was another confrontation in the kitchen where Xxxxxx armed himself with a golf club and you with a kitchen knife. Fortunately, nothing came of it.
As a result of the assault, Xxxxxx sustained a cut to this [sic] lip, redness and soreness to his neck and face.[15]
[15] G-Document p489-90.
The judge noted that it was a ‘very serious offence’. Dr Zimmerman surmised that it was possible the Applicant was suffering from undiagnosed mental illness at that time, though there was no evidence of this.[16]
[16] ATB p36.
Apart from his term of imprisonment arising from this incident, the Applicant has been sentenced to imprisonment on seven other occasions. There is no pattern in his offending. It has neither noticeably grown more serious nor diminished. In the Applicant’s last year in the community, he was convicted in the Magistrates’ Court for the following offences, from which some were appealed and upheld in the County Court, though with varied sentences:
(a)Threaten to assault an emergency worker
(b)2 x Resist emergency worker
(c)Threaten to inflict serious injury
(d)Commit indictable offence while on bail
(e)2 x Contravening a personal safety intervention order
(f)2 x Contravening a conduct condition of bail
(g)Contravene community correction order
(h)4 x Without authority/excuse enter private place
(i)2 x Fail to answer bail
(j)3 x Resist emergency worker on duty
(k)2 x Commit indictable offence whilst on bail
(l)Possess dangerous article in public place
(m)3 x Common law assault
Prior to 2018 the Applicant has been convicted of offences in each of the years 2017, 2016, 2015, 2014, 2012, 2011, 2008, 2007, 2004 and 2002. During these years the breadth of offending has included multiple offences involving weapons, occasions of breaching bail, thefts, recklessly cause injury, intentionally damage property, intentionally cause injury, and multiple drug offences that include the use of heroin and cannabis.
It was acknowledged by the Respondent in written submissions that the length of sentence that the Applicant received was generally significantly less than the maximum allowed. But it was argued that any term of imprisonment reflects a view that the offences concerned were serious.
In written submissions for the Applicant, Mr White noted that, ‘the Applicant acknowledges that, in addition to the offences summarised above, his criminal history is extensive in terms of span of time and volume of offending.’[17] Though, he added that the Applicant’s offending ‘is overwhelmingly dominated by less serious offending.’[18] At the hearing he argued that the offending was ‘relatively minor’ and ‘situational’ and substantially related to the Applicant’s circumstance of being schizophrenic, drug addicted and often homeless.
[17] Applicant SFIC p10.
[18] Applicant SFIC p13.
It was noted in Mr White’s submission that the Applicant’s offending occurred in the context of ‘a psychotic mental illness, homelessness and drug addiction,’[19] arguing that regard should be given as a contributing factor to the Applicant’s past offending.
[19] Ibid.
While I accept that the Applicant has grappled with drug addiction and had a mental illness, the matter before this Tribunal does not involve re-litigating the Applicant’s past. While accepting that the nature of the past offending has been influenced by his past drug usage this is a forward-looking consideration that is centred on the protection of the Australian community and, as such, any consideration of the Applicant’s drug addiction would need to be considered in this context. It would weigh adversely against the Applicant, as would his mental health situation, unless either or both could be managed. Alternatively, were I convinced that the Applicant would participate, voluntarily or involuntarily, in programs and undertake treatment that would reduce his drug addiction and minimise the impact of his mental health, then it would reduce the Applicant’s risk to the Australian community. This is discussed further below.
In considering the nature and seriousness of the Applicant’s conduct to date I am not convinced by the arguments made by Mr White about the offending being ‘relatively minor’. Instead, I note that they are of a violent nature, which the Direction identifies as being crimes that are viewed ‘very seriously’. The list of types of crimes viewed very seriously in the Direction includes violent crimes of the type the Applicant has been convicted of. It also lists other types of crimes that are considered serious, including crimes committed against officials while performing their duties, an offence for which the Applicant has, on repeated occasions, been convicted.
The Direction indicates that the sentence imposed by the courts can be indicative of the seriousness and nature of the conduct. In this instance, I note that the Applicant’s longest conviction was in 2008 for a single offence garnering 20 months imprisonment which was given in conjunction with a related offence resulting in a total sentence of 23 months.
The Direction also requires that the frequency and/or trend and cumulative effect of repeated offending must be considered. In the Applicant’s case, there is a consistent record of offending that spans a period of 16 years with only a few years being absent of any conviction. But as noted earlier, there is no trend of increasing or decreasing severity or intensity either way.
The Direction also requires consideration of whether the Applicant has re-offended after being formally warned in writing of the consequences of further offending. The Applicant was formally warned in 2012. A notice of intention to consider cancellation of the Applicant’s visa was sent on 3 May 2012 on the basis that the Applicant ‘appears to have a substantial criminal record.’[20] In the notice there was a section which explains what happens if your visa is cancelled. This section explicitly detailed the immigration consequences were his visa to be cancelled. Nevertheless, a decision was made not to cancel the visa on 19 June 2012.
[20] G-Documents p363.
In summary, the Applicant’s conduct to date has included offending that can be categorised under the Direction as being viewed ‘very seriously’ and as ‘serious’ crimes and that he has consistently and repeatedly offended across a span of 16 years including after being formally warned.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
When considering the risk to the Australian community, para 8.1.2(1) of the Direction explains that:
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.
In considering this, decision-makers must turn their mind to the nature of the harm to individuals or the Australian community if the Applicant were to engage in the conduct again, as well as the likelihood of the Applicant engaging in such conduct.
Before turning my mind to assessing the risk that the Applicant poses to the Australian community, it is necessary to determine the circumstances of the Applicant. Specifically, whether he would be securely detained in some form of psychiatric unit such that he would be unable to pose a threat to the Australian community or at some stage released into the community.
The lived circumstances of the Applicant into the foreseeable future
The most authoritative evidence available to the Tribunal on this matter arises from the extensive evidence provided by Dr Zimmerman. Noting that the Applicant has refused treatment and does not accept that he has delusions, the voluntary application of anti-psychotic drugs is not an available option.
Instead, the rehabilitation process mapped out by Dr Zimmerman begins with the Tribunal deciding to revoke the cancellation which, in turn, would lead to the Applicant having his visa reinstated and, as such, no longer being held in immigration detention. While still at immigration detention, the psychiatrist assigned to the official medical health providers of immigration detention centres, IHMS, would make a recommendation to place the Applicant under a compulsory inpatient treatment order which would then lead to him being transported to a psychiatric facility in a hospital. Dr Zimmerman opined that the likelihood of such an order being made is ‘extremely high’.[21]
[21] ATB p129 line 18.
In such a facility the psychiatrist there would make a separate assessment to determine whether he would be placed under a medical treatment order. Assuming that this psychiatrist agreed with the original assessment, the Applicant would then become an inpatient in a hospital.
At this stage it is Dr Zimmerman’s view that the Applicant would be found to be needed to be moved to a longer-term facility known as a Secure Extended Care Unit (SECU). A Mental Health Order made by a panel from the Mental Health Tribunal would be required for this to occur. Dr Zimmerman noted in her August 2023 report that:
If WKBF were not in detention, there is little doubt that he would have been placed on a medium to long term Order in May 2023. This was stated by clinicians in the Northern Hospital notes and the discharge summary, where it was acknowledged that the inability to compel treatment in detention meant that a longer Treatment Order or commencing depot was futile but would otherwise have been the next step.
Similarly, in the transcript of the hearing of the other matter, Dr Zimmerman notes that it would be very easy to justify a Mental Health Order for this Applicant.[22]
[22] ATB p130 lines 10-14.
The Applicant would then remain in such a unit where the appropriate antipsychotic medication could be legally injected, regardless of whether the Applicant consented. In some such facilities, support could also be given to his substance abuse.
The Applicant would then remain in such a facility for an indeterminate period into the future, being assessed by a Mental Health Tribunal at regular intervals of at least every six months according to the requirements of the Mental Health and Wellbeing Act2022 (Vic) and relevantly s 143:
The compulsory treatment criteria for a person to be made subject to an assessment order are that
(a) the person appears to have mental illness; and
(b) because the person appears to have mental illness, the person appears to need immediate treatment to prevent
(i)serious deterioration in the person's mental or physical health; or
(ii)serious harm to the person or to another person; and
(c) if the person is made subject to an assessment order, the person can be assessed; and
(d) there are no less restrictive means reasonably available to enable the person to be assessed.
There is no limit to the number of six-month orders that can be made. As was noted by Dr Zimmerman, while on the Mental Health Tribunal she had recently heard the case of a person under an order and in the SECU for 12 years.
If it was determined that the Applicant would be released into the community, having been found to meet the requirements of the Mental Health and Wellbeing Act2022 (Vic) no longer posing ‘serious harm … to another person’ and there being no ‘less restrictive means reasonably available’ then other support would be required including income support which would be through Disability Support Pension (DSP), accommodation, and mental health services which would be through the National Disability Insurance Scheme (NDIS). The Applicant would have support in accessing these services from his guardian.
At the hearing Mr White took the Tribunal through the relevant provisions of the Mental Health and Wellbeing Act showing that some of these stages have been exercised in the past in relation to the Applicant, including a compulsory assessment order being made by Dr Chow of IHMS which included an inpatient assessment order.[23]
[23] RTB p356.
To allay any concern of the risk that there may be a delay between the Applicant’s release from immigration detention and the making of a compulsory order, Dr Zimmerman noted:
My clinical experience that has the closest parallel is when a court makes a decision to release someone, either on bail or on an outright release from court, that day, the prison doctor makes a recommendation for a treatment order and the patient is therefore taken from the prison or from the court, if they’re present in court, to the hospital. And I would imagine that the [sic] is exactly the same as what would happen here, that, when a decision was made by the tribunal that this man be released, that on that day and at that time the psychiatrist, the IHMS psychiatrist, would fill in that paperwork and the Applicant would be taken immediately to hospital.[24]
[24] ATB p129.
This rapidity can be seen as having occurred in the past when the Applicant had an inpatient assessment order made and on the same date was admitted into Northern Hospital.[25] Additionally, Mr White noted to the Tribunal Dr Zimmerman’s evidence that in the event of a shortage of beds in a SECU, the Applicant would remain in the psychiatric unit of the hospital.[26]
[25] RTB p357.
[26] ATB p130-131.

I note separately that Dr Zimmerman answered the question of how the Mental Health Tribunal balances the requirement under the Mental Health and Wellbeing Act to consider a less restrictive means of treatment and specifically whether the situation could arise that an alternative option would be ordered which would not include restrictions on the Applicant’s liberty. Her response was:
[If] you cannot manage those risks in a less restrictive way, then there’s no weighing or balancing. It’s clear that they cannot move into a less restrictive environment if you like. So if you’re talking about you’ve done a risk assessment, there are high risks when the person’s in a SECU; there is no less restrictive way. You could only move them up, back into the in-patient unit. You couldn’t move them down into a CCU if those risks were such that they could only be managed in a SECU or an in-patient unit.[27]
[27] ATB p134.
Finally, Mr White drew the attention of the Tribunal to a section of the oral evidence provided by Dr Zimmerman which expressed her view on how long the Applicant would likely be required to be engaged with through the Mental Health Act:
Mr Hill for the Respondent: So am I right in thinking that even when he’s receiving treatment for schizophrenia and drug counselling, he’s always a risk of becoming non-compliant?
Dr Zimmerman: I believe he should – he could always need to be on it, an involuntary treatment order. Yes. Either a community treatment order or an in-patient one, but yes, I don’t think he should be taken away from the protections of the Mental Health Act.
In Dr Zimmerman’s August 2023 report, she wrote:
It would be very unlikely that he would be taken off a compulsory order for the foreseeable future.[28]
[28] ATB p10.
Dr Zimmerman’s evidence was not contradicted from any other professional source including from IHMS specialists.
Timeframe into the future for these discretionary considerations
At the hearing it became evident that the question of the timeframe for this Tribunal’s consideration was relevant. Mr White noted that it is the task of the Tribunal to make findings on probative materials and therefore the timeframe is the ‘reasonably foreseeable future’. Mr White referenced Justice Mortimer in CPE15 in the context of a protection visa but nevertheless put to the Tribunal that it was a well-crafted definition of the timeframe to be considered:
The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork.[29]
[29] CPE15 v Minister for Immigration and Border Protection [2017] FCA 591, 19 [60].
I do not object to the basic premise that considerations being made in this decision need to be based on probative material and not guesswork, but the separation between the two is not a simple clear-cut line. Instead, the further into the future one looks involves a greater number of permutations of all of the various possible circumstances, often in a consecutive interdependent series of events one after another, each carrying their own probabilities. The further into the future one looks, the less certainty one can bring such that at some point it becomes guesswork.
With regards to the matter before me and the evidence provided by Dr Zimmerman, she has a very high level of certainty on what would happen in the immediate future, namely that if the Applicant was to be released from immigration detention, he would be approved for a compulsory inpatient treatment order and transferred to a psychiatric facility.
As such, when considering whether the Applicant, once released from detention, is quickly moved to a SECU, I accept that he would be. But according to the August 2023 report by Dr Zimmerman, ‘there is now clear evidence that [the Applicant] can be brought into partial remission after a relatively brief period of time on an antipsychotic,’[30] (italics in the original), a view which was reinforced at the hearing in the other matter where she agreed that the applicant has responded well to antipsychotic treatment.[31]
The period after release from a SECU
[30] ATB p12.
[31] ATB p110 lines 15-19.
As such, it is not unreasonable to consider the period after the Applicant has been placed on the next less restrictive type of order. which is a Community Treatment Order. The Community Treatment Order retains a compulsory element with the difference being that the Applicant is not confined in secure facilities.
Dr Zimmerman noted that the Applicant would not be released from a SECU without some degree of a clear pathway forward, including drug and alcohol rehabilitation.[32] Rehabilitation may begin in the SECU or not, depending upon which SECU he is sent to, as different locations have differing capacities to provide such services.
[32] ATB p118.
Furthermore, it was noted by Dr Zimmerman that release may not necessarily be only once the Applicant is in remission from the drug dependency, but it could involve a period when he would still engage with low level drug usage, giving a generic example of cannabis use. She noted, however, this would form a part of the risk assessment by the Mental Health Tribunal at the time.[33]
[33] ATB p118.
It was also noted by Dr Zimmerman that any drug and alcohol counselling or medication such as methadone would have to be voluntary as the nature of counselling requires active participation and the injection of methadone is not accepted as good practice.[34]
[34] ATB p126.
Dr Zimmerman, as a member of the Mental Health Tribunal, noted that:
it is a central tenet of the Mental Health Act 2014 that mentally unwell patients who pose a risk to themselves or others must receive compulsory treatment under the Act. That is, [WKBF] would remain a compulsory patient unless it were deemed that he did not pose a risk to himself or others. He could remain a compulsory patient even when living in the community, on a Community Treatment Order. This means that he would be mandated to remain engaged with treating clinicians and to have prescribed medication. If he did not do so, he would be returned to an inpatient facility to provide his medication.
Taking all of the above information into consideration, I find that the Applicant would be placed into a secure psychiatric unit, whether in a hospital or a SECU, and that he would remain there for a time that could be relatively short noting that Dr Zimmerman has identified the applicant as responding well to treatment.
I do not accept that the nature of this enquiry should end at this point. Dr Zimmerman was quite clear in her view that the medication appeared to act well on the Applicant and that he would be experiencing some levels of remission relatively quickly.[35] In such a case it is reasonable to consider the circumstances into which he would be moved to the community, but under a Community Treatment Order. It is at this stage that the Applicant poses the highest level of risk to the community as the options available to authorities are, by their very nature, reactionary in that the Community Treatment Order would be revoked only if he is showing some reluctance to taking the depot medication or is using drugs and becoming agitated.[36]
[35] ATB p110 at lines 15-19.
[36] ATB p131 at lines 41-44.
Evidence was made available to the Tribunal from Mr Jaffurs and Ms Barker with regards to the type of support the Applicant would have access to were he to be released into the community.
Ms Barker noted that following release from SECU, the Applicant would be assisted in accessing NDIS and other services. She also noted that he would be linked indefinitely with an Area Mental Health Service.
Ms Barker further noted that were the Applicant to have a permanent visa in Australia, she would assist the Applicant to access necessary support including facilitating access to medical practitioners, support and social work services, facilitating assessments for NDIS, Centrelink and Disability Support Pension.
She also told the Tribunal in the other matter that, ‘as the guardian, I wouldn’t be agreeing to him being discharged from the SECU until that appropriate accommodation was put in place.’[37] I queried Mr White as to whether she had the power to make such a decision which in effect would override the Mental Health and Wellbeing Act despite a decision by the Mental Health Tribunal. Mr White acknowledged that she would not have any power to force the Applicant to remain in compulsory treatment. He clarified that he took it to mean that there would be some efforts made and consultations regarding undertaken as to where the Applicant would be released into the community. I accept this interpretation of the evidence.
[37] ATB p155 lines 40-41.
I also accept that the Applicant would be eligible for NDIS and DSP, and that he would be able to access the accommodation and medical supports that Ms Barker identifies.
Mr Jaffurs, Solicitor, Refugee Legal, provided a statutory declaration outlining the enquiries he and his colleagues have made regarding the services that the Applicant will have access to if the refusal to revoke the mandatory cancellation was reversed. In summary these include possible support from Foundation House, a trauma and torture counselling service; counselling from Cabrini Health Services; alcohol and drug rehabilitation services by Odyssey House; and Neami National, a health and housing support service. In all of these cases the common response was that an assessment would need to be undertaken after the Applicant had exhibited a stabilisation of his mental health.
Beyond the formal services sector, Mr Jaffurs engaged with the Applicant’s sister-in-law. Although she had previously expressed a willingness to provide support including accommodation, Mr Jaffurs was unable to contact her at the time of his most recent enquiries. Contact was also made with the Advocacy for Oromia Association that works to empower Oromo people in Australia. While willing to provide support, it was emphasised that they are manned by volunteers and, as such, may be limited in their ability to help the Applicant other than through introductions into the Oromo community. Finally, Mr Jaffurs also noted that Refugee Legal would continue to act on the Applicant’s behalf and that they would be willing to continue to provide legal support.
I acknowledge that there is a considerable amount of support, both public and private, available to the Applicant. If he were to be able to secure all of the support required by him including stable accommodation, employment, social service assistance and community supports and he was able to remain drug free, then the Applicant would pose a low risk to the community as was identified by Dr Zimmerman.[38]
[38] Dr Zimmerman ATB p9 at [49].
But there are a lot of assumptions in this vision for the Applicant, not all of which can be controlled by a guardian, a welfare agency or community volunteers, and instead lie with the Applicant (not relapsing) or wider societal circumstances (employment opportunities). I note that Dr Zimmerman was explicit in her evidence in the other matter that the risk of reoffending could certainly not be said to be zero.[39]
[39] ATB p133 at lines 20-22.
I will now turn my mind to the guidance provided in the Direction focusing on the period when the Applicant is released into the community from the SECU under a Community Treatment Order, having been assessed as having met the Mental Health and Wellbeing Act requirement of not being at risk to others of serious harm.
Nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
The question before this Tribunal in this instance is not whether the Applicant would engage in further criminal conduct. Rather, the question is should the Applicant engage in further criminal conduct, then what is the nature of the harm to individuals. As such, that the Applicant would have been assessed as not being a risk to others of serious harm is not relevant, but instead the working assumption is that he would be at risk, and as such the question is what type of harm would an individual face?
There is no evidence before me that indicates that were the Applicant to offend again that he would moderate his violent offending after having received some anti-psychotic medication, noting that he has in the past received anti-psychotic medication and still offended violently. As such I find that the Applicant’s past offences would be indicative of future offences. His past offences have involved weapons, occasions of breaching bail, thefts, recklessly cause injury, intentionally damage property, intentionally cause injury, and multiple drug offences that include the use of heroin and cannabis.
At the hearing Mr McDermott went through the more serious offences the Applicant had committed, with the argument put to the Tribunal that the violence could have escalated further than his past offending suggests. This is because of the Applicant’s possible inability to regulate his conduct. What is common, Mr McDermott put to the Tribunal, is that in those situations, his offences commonly involved entering someone’s residence which has subsequently given rise to the threat of violence or actual violence.
While Mr McDermott’s arguments appear intuitive, there is no expert evidence to suggest that the Applicant’s offending had the capacity to amplify in severity, noting that there was no prior trend in his offending. As such I do not accept this argument.
Instead, I find that should the Applicant engage in further criminal conduct, the nature of the harm would be consistent with the nature of the harm of the past.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
As noted above, I have accepted that the Applicant will be seamlessly transferred to a psychiatric facility where he will be secured away from the public at which point he would remain under some sort of restricted movement for some potentially brief period. Importantly, the evidence provided by Dr Zimmerman was that only once the Applicant’s mental illness is in remission would he be considered for release.
But it is relevant to note here Dr Zimmerman’s view of the challenges in being able to assess whether the psychosis has been adequately managed through medication:[40]
Dr Zimmerman: I think way back from when he was being looked after in Canberra it was noted that he is very good at lying low, of not coming to the attention of psychiatrist, of not divulging symptoms. So particularly when he’s not too unwell he is able to be guarded and not tell you about symptoms that are actually going on. So of course he attempts to manage what he tells you and what he doesn’t tell you. The more unwell he becomes, the more difficult that becomes for him.
Mr Hill for the Respondent: If he is well enough to be guarded, could he still be unwell enough to be a risk?
Dr Zimmerman: Yes.
[40] ATB p115 lines 3-12.
I believe it would be appropriate to describe the process of assessing the Applicant as not an exact science. Furthermore, as noted by Dr Zimmerman in the context of her view that some form of Mental Health Order should always be in place for the Applicant, she said that there is a ‘broad school of opinions in psychiatry’ and that ‘you’ll always find someone with a different opinion.’[41]
[41] ATB p135 lines 43-44.
Mr White, in his written submissions, outlined evidence of the Applicant’s remorse, noting that he had some insight into his offending. I accept that this may have been the case at some point but also note that the reason the Applicant was not appearing at this hearing was because he had no insights into his mental health situation. Furthermore, insights such as that the Applicant had some degree of remorse in the past, would have been taken into consideration by Dr Zimmerman in her overall assessments and in her nuanced insights. Noting the need for professionals to undertake such assessments, particularly in circumstances that involve complex mental health challenges, I place limited weight on any specific identified instance of remorse and inference on how it would impact the Applicant’s future actions.
In her submissions Dr Zimmerman acknowledged the possibility of the Applicant relapsing after being released into the community, writing, for example, ‘I would also observe that in the event that [the Applicant] experiences a further relapse [of the schizophrenia], being under an Order means that this could be revoked at any time and [the Applicant] be readmitted for stabilisation of any symptoms.’[42]
[42] ATB p12.
The primary risk of a relapse would come from, ‘any use of amphetamine [which] will act to aggravate his underlying psychotic illness’ according to Dr Zimmerman.[43] This view was supported by Dr Barker, Consultant Psychiatrist, in giving evidence before the ACT Civil and Administrative Tribunal (ACAT) as recorded in a Statement of Reasons from the Mental Health Tribunal decision of 20 August 2015, when he noted that ‘schizophrenia itself is not usually associated with an increased risk of aggression; there is an increased risk of use of violence when a person with schizophrenia uses illicit substances.’[44]
[43] ATB p8.
[44] RTB 261.
It is of note and concern that despite the Applicant being placed on a Psychiatric Treatment Order by ACAT on 23 July 2015 and then once again on 20 August 2015[45], he committed various offences including possession of a knife without reasonable excuse on multiple occasions, fail to appear after bail undertaking and possess drug of dependence. In an ACAT July 2016 review it was recorded that:
During his time in [police] custody and again recently in the community he has refused or been unavailable for treatment requiring the repeated use of Breach actions under his PTO to administer his current long acting depot antipsychotic medication … He was last seen in person by the Forensic Mental Health Court Liaison service on the 17th of June, at this time they did not observe gross signs of active psychosis and did not recommend transfer to hospital.[46]
[45] RTB page 259.
[46] RTB page 270.
In addition, the review notes that the Applicant is at risk of serious harm to himself or someone else. These circumstances are despite an order indicating a need for the Applicant to reside in supported accommodation and to be restricted in his use of alcohol and drugs other than those prescribed for him.[47]
[47] RTB pages 257-262.
I appreciate that the situation when the Applicant was living in Canberra may be different in that now the Applicant would have the benefit of some time in a SECU under a Compulsory Treatment Order and the availability of a guardian. Nevertheless I place some weight on this lived experience as providing insight into how a functioning system involving tribunals and health professionals with compulsion powers to administer antipsychotic medication and police intervention can still lead to a situation where the Applicant is in the community and offends.
There is no expert evidence before the Tribunal of the Applicant’s drug rehabilitation prospects once he has successfully managed his schizophrenia as no qualified specialists were called to provide their insights, nor were any statistics provided showing the success rates of drug rehabilitation programs in general or specifically relating to those in a similar circumstance to the Applicant. While the Applicant would be well supported were he to choose to go down the path of distancing himself from drug usage, this is not a certainty. Nor is it given that the Applicant would be successful even were he to want to travel that path. But without any evidence before me, I can only leave open the possibilities that he embraces an effort to move on from his drug usage or that he doesn’t. Anything further would be speculative.

It is also relevant to note that while substance abuse and schizophrenia were identified by Dr Zimmerman as the two crucial factors, she identified other areas of concern as being present but ‘secondary’. These include ‘social disengagement, unstable accommodation and lack of employment.’[48] When considering the likelihood of the non-citizen engaging in further criminal or other serious conduct, the community’s ability to effectively mitigate the impact from all of the triggers, including these secondary triggers, needs to be taken into consideration.
[48] ATB p9 at [47].
At the hearing Dr Zimmerman’s remarks on the level of risk the Applicant poses were considered and clarified. The difference arose in Dr Zimmerman’s evidence in the other matter for which the transcript records her saying that without the right supports, the Applicant’s ‘risk of violent offending would be high,’[49] which differed to her written report of July 2023 where she wrote that the Applicant presents a ‘medium risk of violence’. It was the view of both parties that the latter was in the context of immigration detention and not in the context of being released into the community. I accept this interpretation of the evidence.
[49] ATB p106 line 31.
Dr Zimmerman also explained how she defined violence:
I’m using the word ‘violence’ as defined in the HCR-20. So we’re looking at an act of violence against a person, so that could be an act that results in a conviction of assault, but particularly, serious assault, but also threats of serious violence. So a threat to kill would qualify as an act of violence under the HCR-20. They’re predominantly the sorts of acts that you’re looking for, so acts that result in harm to another human being.[50]
[50] ATB p106.
Conversely, when the Applicant is able to obtain the right support, the risk would be low. The right support she identified as being, ‘assertive mental health care … medium to long-term residential rehabilitation and transition to secure accommodation … engaged with specialists/support workers in assisting those with mental illness build connections to the broader community.’[51]
[51] ATB p31-32.
It is evident from Dr Zimmerman’s evidence that underlying any reduction in risk is the need for all of these aspects to be activated and supports to be in place from the time the Applicant is in the community and onwards into the future. Substantial evidence was received relating to the supports available including evidence from Ms Barker and Mr Jaffurs. The evidence from the latter cannot be interpreted as anything but uncertainty as to whether the support would be available as all of the service providers’ responses revolved around the need for an assessment nearer to the time that he would access their services.
While I accept that the presence of a guardian who is adept at navigating the services sector would undoubtedly increase the likelihood of the Applicant accessing the necessary supports, this is also not without risks of bureaucratic delays or rejection.
It is relevant to note that Dr Zimmerman has not made an expert assessment on the Applicant’s ability to obtain all of the supports, nor has she made an assessment on the likelihood of the Applicant being able to successfully see through a drug rehabilitation process and then sustain it.
In considering the risk to the Australian community, I acknowledge Dr Zimmerman’s assessment of the Applicant as being low in the context of all of the supports being in place. But undertaking this assessment requires doing so within the context of Direction 99 and not applying the psychologist’s tool, HCR-20. In considering the guidance within the Direction and taking into consideration both the ‘nature of the harm’ (8.1.2(2)(a)) and ‘the likelihood of the non-citizen [to] engage in further criminal … conduct’ (8.1.2(2)(b)) alongside a limited but present level of uncertainty over the support the Applicant will receive when in the community, I find that there is a low-moderate risk to the Australian community.
Conclusion: Primary Consideration 1
In considering para 8.1 and the protection of the Australian community, I note that the Direction states:
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.
Bearing this in mind, I note that the Applicant has repeatedly caused and threatened harm to individuals in the Australian community.
Furthermore, I note that the Direction explicitly guides decision-makers to consider that ‘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.’ I find that the type of offending the Applicant has undertaken falls into this category including his entering another’s home where he assaulted the residents, as well as the acts of threatening to assault and resist emergency workers.
Noting that earlier I had found that the nature of the Applicant’s conduct to date could be categorised for the purposes of the Direction as being viewed ‘very seriously’ and as ‘serious’ crimes, and that the risk of the Applicant reoffending after being released from a SECU is low-to-moderate, overall, I place moderate weight against revoking the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The Direction informs decision-makers 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 in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.’[52]
[52] Direction, paragraph 8.2.
It is not in dispute that none of the violence involves family violence and, as such, I place neutral weight on this consideration.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
This factor requires the decision-maker to have regard to the strength, nature and duration of the non-citizen’s ties to Australia. This includes considering the impact of the decision on the Applicant’s immediate family members in Australia who are Australian citizens, permanent residents or have a right to remain in Australia indefinitely. Similarly, consideration should be given to the strength, duration and nature of family or social links with Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely.
In addition, decision-makers need to consider the strength, nature and duration of any other ties, giving considerable weight to Applicants who have been resident in Australia since their formative years, regardless of when their offending commenced and the level of that offending. More weight should be given when the Applicant has contributed positively to the Australian community. But ‘less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.’
Mr White acknowledged in written and oral submissions that the Applicant has lived a marginalised life for his 26 years in Australia but asserted that it was because of his psychotic illness that it has been impossible for him to engage and form deeper ties with the Australian community.
The Respondent’s submissions similarly recognised that the Applicant has had no meaningful connection with family, friends, or community members in Australia outside of the health professionals he has engaged with. He added that his adult life has been centred on repeated criminal offending, in prison or in detention.
In considering these submissions, I acknowledge that there is an offer by the wife of the Applicant’s brother to provide support and, as such, it is indicative of some tie to the Australian community. The brother’s wife, however, cannot be contacted and, as such, the tie appears tenuous. Beyond this, it appears that the Applicant’s direct family members are uninterested in the Applicant and he has not built any ties with them. There is no evidence that he has friends in the community or any current or recent work-based relationship. Similarly, the Applicant had established a relationship with a woman, but it ended in 2006 with no evidence of any current or recent ties to her.
For the reasons of the very minimal ties to the Australia community, I place minimal weight in favour of revocation of the mandatory cancellation.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
It is not in dispute that there are no minor children in Australia affected by this decision and, as such, I place neutral weight on this consideration.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction details the expectations of the Australian community which must be taken into consideration by the decision-maker. The Direction notes that:
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.[53]
[53] Direction, paragraph 8.5(1).
It goes on to add:
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.[54]
[54] Direction, paragraph 8.5(2).
Mr White argued that less weight should be given to this consideration due to the prospect of indefinite detention and the Applicant’s serious mental illnesses. He argued that the ‘strength and cogency of the other considerations’ should outweigh this consideration.
In the alternative, Mr McDermott argued in written and oral submissions that the Applicant’s offending should lead to significant weight being placed against revocation. Mr McDermott emphasised the type of offending noting that it involved violence, home entry and interfering with the work of emergency workers.
I note that this consideration is both past and future looking in which the Direction speaks of where a non-citizen has engaged in serious conduct in breach of expectations as well as the risk of future breaches of expectations. In this instance, that the Applicant has committed 47 offences weighs against revocation under the Direction, paragraph 8.5.1, in that the repeated nature of the offending and that on eight occasions it led to imprisonment is ‘serious conduct’ and stands against the expectations for ‘non-citizens to obey Australian laws while in Australia’. As does the Applicant’s past offending against emergency workers, which is identified under 8.5.2(d) of the Direction as a type of offence that leads to the Australian community expecting the government to cancel the non-citizen’s visa. When taking this into consideration and noting my earlier findings of the applicant’s future risks, in the context of the Australian community’s expectations, overall, I place heavy weight against revoking the mandatory cancellation.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequence of the decision
The legal consequences of this decision extend to considerations of refoulement in cases where an Applicant has been found to be owed protection, detention where the Applicant cannot be returned to their country of nationality or there may be a limited period in detention until another review stage is completed.
Non-refoulement
In considering the legal consequences of this decision, I note that the Applicant has a yet to be finalised protection visa application. This is relevant insofar as s 198(2)-(8) of the Act requires that an ‘officer must remove as soon as reasonably practicable an unlawful non‑citizen’ under specific circumstances. The most likely relevant possible pathway for the Applicant was identified at the hearing as being s 198(6):
An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a) the non‑citizen is a detainee; and
(b) the non‑citizen made a valid application for a substantive visa that can be granted when the Applicant is in the migration zone; and
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; and
(d) the non‑citizen has not made another valid application for a substantive visa that can be granted when the Applicant is in the migration zone.
At present, though, the Applicant is a detained non-citizen who has a substantive visa that can be granted. As such, s 198(6)(c)(i) has not been met and the Applicant cannot be removed.
In considering the length of the process to finalise the protection visa application, I accept that there are a series of future decisions that could be adverse to the Applicant and, as such, that there will be a period in detention that could extend into a few to several years based on the length of the current process but ultimately is of an uncertain duration.[55] This period would see the possibility of future decisions being made and appeals being heard. Alternatively, at any stage the Applicant could be granted a visa, whether a protection visa or, arising from NZYQ, a bridging visa and, in such case, the Applicant would be released from detention.
[55] SPFH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 97, 27 [82]
Only if the protection visa was refused and finally determined could the Applicant be considered for removal. That process would be subject to the provisions of the new ss 197C(3) and 197D of the Act arising from the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth). The critical issue, in this case, is that these amendments to the Act have the effect of changing the assessment the Tribunal must make when considering non-refoulement in the context of exercising the discretion of whether or not to refuse a protection visa.
Prior to this amendment, s 197C of the Act provided that, for the purpose of removal under s 198, it was irrelevant whether Australia had non-refoulement obligations in respect of an unlawful non-citizen, and that the person must be removed as soon as practicable. An internal International Treaty Obligations process was undertaken but this was a policy and not law.
Instead, broadly speaking, s 197C does not require or authorise the removal of an unlawful non-citizen who has been found to engage Australia’s protection obligations, as the Applicant has been. Exceptions include if the decision that found the non-citizen engages protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D, or the non‑citizen requests removal.
As there is no basis to consider that the original decision has or will be quashed or the Applicant will request removal, I now turn to s 197D.
Section 197D(2) provides that, for the purposes of s 197C(3), the Minister may make a decision that a person no longer engages Australia’s protection obligations. The provision gives the Minister broad discretion to make such a decision. Relevantly, though, the Supplementary Explanatory Memorandum states at [10] that ‘[i]n practice, it would be rare that a person who has been found to engage protection obligations would no longer engage those obligations.’[56]
[56] Supplementary Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2011 (Cth).
If the Minister does not make a decision under s 197D(2), and neither of the other provisos apply, the effect of s 197C(3) is that any existing ‘protection finding’ will prevail. The removal of the unlawful non-citizen will not be authorised, and the unlawful non-citizen will therefore remain in detention unless or until:
(n)The Applicant is removed to a third country;
(o)The Minister invites the Applicant to apply for a Bridging R (Class WR) visa under s 501E(2)(b) (as prescribed by reg 2.12AA of the Migration Regulations 1994 (Cth));
(p)The Minister grants a visa under s 195A (Minister may grant detainee visa (whether or not on application)); and
(q)The Minister makes a residence determination under s 197AB (Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.).
While residence determination would be the preferable option for this Applicant, specifically that the Minister makes a determination that the Applicant is to reside in a SECU concurrent to a Compulsory Treatment Order, this having been a possibility since December 2018 and not having occurred, is indicative of it being very unlikely to occur in the future.
Mr White argued that it would be a remote possibility for s 197D(2) to be triggered and that there is no reference to it in the Direction. I am not convinced by the argument that there is no reference to it in the Direction as the Direction specifically states under ‘Other Considerations’ that ‘these considerations include (but are not limited to)’, which opens the opportunity for a decision-maker to consider other relevant matters.
Nevertheless, I am inclined to agree that the situation in Ethiopia with regards to people with schizophrenia is so unlikely to change that it does not bear any further consideration in this process. As noted in the Supplementary Explanatory Memorandum, this provision is acknowledgement that it would be ‘rare’ that a protection finding would be changed.[57] Further, there is nothing in the earlier Tribunal’s protection visa decision to indicate that the situation is on the cusp of changing, although it appears progress is being made to minimise the stigma and increase the level of support to people with schizophrenia.
[57] Supplementary Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2011 (Cth) 3 [10].
Accordingly, there being a ‘protection finding’ previously made in respect of the Applicant, s 197C(3) provides that the Applicant’s removal is not authorised. For this reason, I find that the law does not allow for refoulement of the Applicant. As such, I place neutral weight on considerations of refoulement as a legal consequence.
Length of stay in immigration detention until all of the applicant’s visa pathways are exhausted and before the impact of NZYQ leads to the applicant’s release from detention
Noting the issue raised earlier about adopting a cautious approach of not pre-empting the decision-making process of the Department and other delegates of the Minister, the length of detention for the Applicant ranges from the unlikely possibility of a short stay in which the protection visa is granted quickly following the decision by Kyrou J, through to an extended period which entails further processes relating to the protection visa and may include additional decisions, reviews, and appeals.
I adopt the latter as the more likely pathway as the Department has refused to revoke the visa under consideration in this matter on the grounds of the Applicant not meeting the character test in s 501 and that the discretionary elements do not weigh in favour of revocation.

I note also that this is the more favourable pathway for the Applicant with regards to this decision.
Until such time as the protection visa is finally determined, the only pathway available to the Applicant to leave immigration detention and enter the Australian community would be for the Minister or a future Minister to exercise their powers listed earlier. While previous Ministers have not exercised these powers in the Applicant’s favour, the circumstances may change in the future. I note the judgment of Jagot J in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, in this regard:[58]
The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith. It is within ordinary human experience that, over time, Ministers change and Ministers change their minds. At the time the Minister made this decision, 7 March 2022, it was a notorious fact, of which judicial notice may be taken, that there would be a Federal election within a few months. Even without that fact, the Minister must be taken to have known that relevant circumstances may change, Ministers may change and Ministers may change their minds. These were all rational possibilities at the time the Minister made the decision.
[58] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878, 15 [42].
It is possible that at some point the Applicant may be looked upon favourably by this Minister (or another) by making a residence determination or granting the Applicant a visa. But this is the far less likely outcome and, as such, I will consider the scenario of the Applicant remaining in detention for a period of years rather than months for the purpose of giving weight to the medical evidence, but recognising that ultimately it is an uncertain period of duration[59] until the protection visa is either granted or the application is finally determined.
[59] SPFH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 97, 27 [82].
Dr Zimmerman referenced general information about the impact on the health of detainees in immigration detention:
The adverse effects of immigration detention are well-documented, including anxiety disorders, depressive disorders and increased rates of PTSD. For patients who already have a mental illness, the stresses and retraumatising effects increase the risk of relapses. Also well established in the literature is the additive effect of increased time in detention. Finally, indefinite detention acts to remove even the security of a known date to freedom, creating unique triggers for helplessness, overwhelming feelings of powerless and increased risks of suicide.[60]
[60] ATB p9.
Specifically related to the Applicant she said that ‘based on the real life unfolding of events since 2019 … the longer he’s in detention … his mental state has deteriorated to a state where he is now severely psychotic.’[61]
[61] ATB p137.
As detention centres are not gazetted as locations within which the Mental Health and Wellbeing Act allows for the forcible application of depot medication and the Applicant has refused to voluntarily receive the medication, he has been unable to benefit from treatment. As a result, one observation by Dr Sally Chow of IHMS is that this is increasing his risk of aggression towards others.[62]
[62] RTB p353.
Dr Zimmerman noted with concern that, ‘Being in immigration detention has resulted in a very serious and potentially life-threatening deterioration in [the Applicant’s] mental state. Prolonging the situation by definition removes the prospect of reversing this situation.’[63] No information was provided as to how it could be life-threatening, namely whether his actions would lead to a reaction by others or that the illness itself is somehow life-threatening.
[63] ATB p35.
But of note, she also said in response to a question about the stressors of detention:
Well, the complete loss of liberty. A complete loss of decision to make any decisions around your own life. So there’s often an abeyance of hope, particularly where there’s indefinite detention. People don’t know when this state of affairs is going to come to an end, if ever. And so there’s yes, an abeyance of hope, helplessness, there can be the emergence of depressive episodes. The Applicant has a history of suicide attempts on more than one occasion, so there’s all those risks of deteriorating mood and suicidality. I think at the moment all of that can be put to one side, because he’s caught up in his own grandiose paranoid psychotic world. But certainly, down the track, if he were to recover, those risks would then come into play.[64]
[64] ATB p138.
Dr Zimmerman is suggesting that due to his schizophrenia, the Applicant is living in a world that exists in his mind separate to his confined life in a detention centre. It is difficult to weigh this piece of evidence. On the one hand, the expert witness is suggesting that the Applicant does not feel a loss of liberty nor an abeyance of hope or helplessness because he lives in a constructed world that has not imposed such limitations on him. Should the impact of detention be considered less to the Applicant because of his alternate perspective? The impact of detention on people with vulnerabilities is accepted as being more impactful and so conversely, why shouldn’t detention be considered less impactful on people in the situation of the Applicant? Alternatively, detention involves an objective loss of liberty which should be acknowledged regardless of the viewpoint of the person being detained.
When considering this evidence, I do not accept that the consideration of vulnerability should only weigh in one direction, noting that Dr Zimmerman commented on how some patients of SECUs, which also impose a similar loss of liberty, find refuge in them.[65] But I do acknowledge that ultimately it is contrary to the human condition to be in a place of confinement for an extended period of time even when living within an illusory world created by grandiose delusions. And through even the thickest fog of delusions there may be moments of clarity that cause him to see reality for what it is and during those moments there may be some sense of hopelessness and helplessness which cannot be ignored.
[65] ATB p138.
Noting that the applicant will not be detained indefinitely due to the High Court’s decision in NZYQ, when turning my mind to the weight to be given to the legal consequences arising from this decision, I am considering the impact of the applicant remaining in detention for a period of years rather than months, but ultimately what is an uncertain period of duration until he is either granted a protection visa or it is finally determined without it being granted. I note the impact on the Applicant that further detention would have, as identified by Dr Zimmerman and recognise the nuanced situation that the Applicant faces as he is influenced by a vision of an alternate world. When considered overall, I place moderate-heavy weight in favour of revoking the mandatory cancellation of the Applicant’s visa.
Other Consideration (b): Extent of impediments if removed
The Direction requires the decision-maker to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards. In summary, such considerations should be undertaken ‘in the context of what is generally available to other citizens of that country, taking into account the non-citizen's age and health; whether there are substantial language or cultural barriers; and whether there is any social, medical and/or economic support available to them in that country.’[66]
[66] Direction, paragraph 9.2.
It is not in dispute that the Applicant cannot be removed from Australia and, as such, would not be facing impediments in Ethiopia. For this reason, I place neutral weight on this consideration.
Other Consideration (c): Impact on victims
This consideration relates to any known views of victims who are aware of the potential migration implications for the non-citizen.
It is not in dispute that there are no known views of victims who are aware of the potential migration implications and, as such, I place neutral weight on this consideration.
Other Consideration (d): Impact on Australian business interests
Under the Direction decision-makers must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, ‘noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
It is not in dispute that there is no impact on an Australian business interest arising from this decision and, as such, I place neutral weight on this consideration.
Overall finding
Recalling the weightings I placed on the discretionary considerations, I gave moderate weight against revoking the mandatory cancellation under the primary consideration of the protection of the Australian community from criminal or other serious conduct, along with heavy weight arising from the expectations of the Australian community. Conversely, I placed very minimal weight arising from the strength, nature and duration of ties to Australia. I placed neutral weight on the remaining two primary considerations, namely, whether the conduct engaged in constituted family violence and the best interests of minor children in Australia, as the applicant did not engage in family violence and there are no minor children who will be affected by this decision.
The other considerations included three which were given neutral weight as they were not relevant to the circumstances of the Applicant. These three were extent of impediments if removed, impact on victims, and impact on Australian business interests. The only other consideration is the legal consequences of the decision, for which I placed moderate to heavy weight in favour of revocation arising from his anticipated stay of a period of years and not months but what is ultimately a period of uncertain duration in immigration detention.
Noting the Direction and specifically paragraph 7(2) which states, ‘Primary considerations should generally be given greater weight than the other considerations,’ but that this does not preclude the Tribunal from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration, and taking into consideration the weight I have given to each as detailed above, I find that the overall weight lies against revocation.
DECISION
Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the reviewable decision.

I certify that the preceding one hundred and eighty-four (184) paragraphs are a true copy of the reasons for the decision herein of Deputy President Denis Dragovic

………………[SGD]………………….
Associate
Dated: 1 December 2023

Date of hearing: 15 November 2023

Counsel for the Applicant:

Solicitors for the Applicant:

Counsel for the Respondent:

Mr Andrew White

Refugee Legal

Mr Christopher McDermott

Solicitors for the Respondent: Mills Oakley Lawyers
ANNEXURE A

1.

G-Documents

2.

Applicant’s Statement of Facts, Issues and Contentions dated 23 October 2023

3.

Respondent’s Statement of Facts, Issues and Contentions dated 6 November 2023

4.

Applicant’s Reply to the Respondent’s Statement of Facts, Issues and Contentions dated 10 November 2023

5.

Respondent’s Supplementary Submissions dated 24 November 2023

6.

Applicant’s Response to the Respondent’s Supplementary Submissions dated 26 November 2023

7.

Applicant’s Tender Bundle

8.

Respondent’s Tender Bundle

9.

Applicant’s Supplementary Tender Bundle

10.

Summons material produced by ACT Magistrates’ Court – Threat to inflict grievous bodily harm charge 2015

11.

Summons material produced by ACT Magistrates’ Court – Reckless threat to kill charge 2015

12.

Applicant’s List of Authorities

13.

Respondent’s List of Authorities

1.	G-Documents
2.	Applicant’s Statement of Facts, Issues and Contentions dated 23 October 2023
3.	Respondent’s Statement of Facts, Issues and Contentions dated 6 November 2023
4.	Applicant’s Reply to the Respondent’s Statement of Facts, Issues and Contentions dated 10 November 2023
5.	Respondent’s Supplementary Submissions dated 24 November 2023
6.	Applicant’s Response to the Respondent’s Supplementary Submissions dated 26 November 2023
7.	Applicant’s Tender Bundle
8.	Respondent’s Tender Bundle
9.	Applicant’s Supplementary Tender Bundle
10.	Summons material produced by ACT Magistrates’ Court – Threat to inflict grievous bodily harm charge 2015
11.	Summons material produced by ACT Magistrates’ Court – Reckless threat to kill charge 2015
12.	Applicant’s List of Authorities
13.	Respondent’s List of Authorities