XHKD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 4238

XHKD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4238 (15 December 2023)
Division:GENERAL DIVISION
File Number: 2020/0985
Re:XHKD
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:15 December 2023
Place:Melbourne

The decision the subject of review is affirmed.

.................[SGD]..................
Senior Member C. J. Furnell
Catchwords
MIGRATION – refusal to grant protection visa – whether convicted by final judgement of a particularly serious crime – whether a danger to the Australian community – nature and seriousness of offending – period of offending – risk of recidivism – mitigating circumstances – decision under review affirmed
Legislation
Migration Act 1958 (Cth)

Crimes Act 1900 (NSW)
Cases
AFF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1564
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49
Briginshaw v Briginshaw (1938) 60 CLR 336
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84
DOB18 v Minister for Home Affairs (2019) 269 FCR 636
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
EWV20 (As Litigation Representative for AFF20) v Minister for Home Affairs (No 3) [2021] FCA 866
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FSKY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 2
Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423
HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392
Hughes v R [2017] HCA 20
Kayo Rerekura and Minister for Home Affairs [2019] AATA 153
LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1591
Mailau v Minister for Immigration [2023] FCAFC 12
MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
MVLW and Minister for Immigration and Border Protection (Migration) [2017] AATA 1557
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 214
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104
Spano v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 389
SZOQQ v Minister for Immigration and Citizenship (2012) 126 ALD 200
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
YFMG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1342
Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
REASONS FOR DECISION
Senior Member C. J. Furnell

15 December 2023

In January 2020 a delegate of the respondent decided to refuse the applicant’s application for a Protection (Class XA, subclass 866) visa relying on a particular provision of the Migration Act 1958 (Cth) (Act), s36(1C).
The applicant applied to the Tribunal for review of the delegate’s decision.
For the reasons which follow, I have decided to affirm that decision.
Background and question in issue
In deciding to refuse the applicant’s application for a protection visa, the respondent’s delegate was not satisfied that a criterion prescribed by the Act for the grant of the visa was satisfied. As a result of that state of non-satisfaction, the delegate was required to refuse the applicant’s application.[1]
[1] Act, s65.
The criterion which the delegate considered was not satisfied is that set out in s36(1C) of the Act. Put simply, as a result of s36(1C), for the applicant to be granted a protection visa, it “…is a necessary criterion … that the … respondent…must consider, on reasonable grounds, that the …[applicant] is not a person who, having been convicted by a final judgment of a particularly serious crime, 'is a danger to the Australian community.'”[2]
[2] SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104 at [2] ('SLGS'). This ignores an aspect of s36(1C) which is irrelevant in these proceedings, one applicable where a visa applicant is a danger to Australia’s security.
Because the applicant’s protection visa application was refused in reliance of s36(1C), the Tribunal has jurisdiction to review the refusal decision.[3]
[3] Act, s500(1)(c)(i).
In conducting its review of that decision, the Tribunal is required to stand in the delegate’s shoes “to do over again that which was done” by the delegate.[4]
[4] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].
Standing in those shoes, the question in issue for the Tribunal is, as the parties contend,[5] whether it considers, on reasonable grounds, that the applicant is not a person who, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.[6]
[5] Applicant’s Statement of Facts, Issues and Contentions, [3] (‘A SFIC’); Respondent’s Statement of Facts, Issues and Contentions, [2] (‘R SFIC’).
[6] The Tribunal is not undertaking the task of determining whether to grant the protection visa applied for by the applicant. Instead, its task in this proceeding involves a consideration of the s36(1C) criterion. Hence, for example, the Tribunal is not now assessing whether the applicant satisfies the criteria in s36(2)(a) or s36(2)(aa) as it would be required to do were it now deciding whether or not to issue the applicant a protection visa. Limiting the Tribunal’s task in this way is consistent with the decision of Rares J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 at [66].
As is apparent from my decision in this matter, I consider that the applicant is such a person.
The grounds on which I have relied in coming to that conclusion are, I believe, reasonable. Before outlining those grounds, however, I should say something about the material before me and the factual and legislative context.
Material before the Tribunal
The Tribunal is obliged to make “the correct or preferable decision” on the material before it.[7]
[7] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ).
The material before the Tribunal included evidence adduced at the hearing of this proceeding and certain documentary material lodged with the Tribunal prior to the hearing.
As for evidence adduced at the hearing, the Tribunal heard from the applicant, a clinical and forensic psychologist (Dr Kwok), the applicant’s mother, a sister of the applicant, the applicant’s father and the applicant’s partner.
As for the applicant’s evidence, I found it often to be unreliable, especially when he was asked to address matters not of recent history. In making that finding I do not impugn the applicant’s honesty. As was stated on his behalf in opening submissions, it is clear that the applicant has difficulties with memory loss. The result, however, is that he was not, as Dr Kwok noted in several of her reports, “an accurate historian”.[8] Indeed, in her oral evidence, Dr Kwok opined that the applicant was not competent to address questions about matters that occurred prior to him being placed in immigration detention.
[8] A SFIC [8]. See also the applicant’s September 2023 statement in which he says that his memory has been affected by his mental health issues and hospitalisations (ATB 2724).
As an aside I note that, given concerns about his capacity to “…give an account of their experiences, to present argument in support of their claims, and to understand and respond to the questions put to them,”[9] the listing of the hearing of this proceeding was deferred twice. Ultimately, however, at the urging of the applicant’s legal advisers, the hearing was listed and proceeded. First, given what the Tribunal had been told, there were less concerns about the applicant’s capacity than there were when he last appeared before the Tribunal (when he was not considered fit to give evidence).[10] In particular, the Tribunal was told that the applicant had been able to provide instructions on matters about which his advisers had previously been unable to obtain instructions, that the applicant was currently compliant with his medication[11] and that he had instructed them that he was keen to have his review application heard.[12] Second, listing and proceeding with the hearing was, I considered, consistent with the Tribunal’s objective set out in s2A of its constituent legislation.
[9] BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49 at [43] cited by Jagot J in Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 214 at [37].
[10] See TB 2535-2593.
[11] See also September 2023 report of Ms Kwok at ATB 2793 in which Ms Kwok states that in July 2023 the applicant reported being compliant with his medication. In late August 2023 a mental health nurse assessed the applicant as being “alert and orientated” with “nil thought disorder coherent and logical” (ATB 2638).
[12] The Tribunal notes that in his October 2023 statement the applicant said that he wished to give evidence at the hearing.
As for documentary material lodged with the Tribunal, it comprised:
(a)Bundle of tender documents on remittal of 2624 pages and supplementary G documents (pp2821-2979) (the “TB” documents).
(b)43 documents listed in an applicant’s annexure list pp2625-2816 (the “ATB” documents).
(c)A statement of the applicant’s partner of 18 September 2023.
(d)Two referrals to International Health and Medical Services’ “Mental Health” received on 29 May 2023.
(e)International Health and Medical Services clinical records with respect to the applicant from June 2018 to June 2023.
(f)An applicant statement of 19 October 2023.
Each party lodged submissions about the documentary material that had been lodged with the Tribunal prior to the hearing.[13]
[13] R SFIC of 10 October 2023; A SFIC of 18 September 2023 and applicant’s reply submission of 19 October 2023 (“A Reply”).
Factual context
The applicant was born in Afghanistan in May 1991.
As Bromberg J noted in a 2022 decision, the story of the applicant’s early years “…is tragic. As a child he witnessed members of his family being beaten, kidnapped and murdered. He was later kidnapped for a period of 3 years during which he suffered sexual abuse, torture and threats of death at the hands of his captors and witnessed other kidnapped children suffer the same treatment.”[14]
[14]TB 2599. See also statutory declaration of the applicant made in May 2011 (TB 507-512).
In April 2005 the applicant was granted a Subclass 101 (Child – Migrant) visa (the “101 visa”).
In June 2005, aged 14, he arrived in Australia, and has stayed in Australia ever since.
The applicant is the oldest of seven children. All his immediate family live in Australia.
The applicant has had long standing mental health issues.
In a May 2011 psychological report, it was said that, when the applicant arrived in Australia, he already had “well established PTSD, psychotic symptoms, and mood dysregulation.”[15]
[15] TB 280.
In a report in April 2013, and another in August 2013, two psychiatrists opined that the applicant suffered from schizophrenia and substance abuse disorder.[16] In one of the those reports the applicant was also said to be suffering from PTSD.[17] His mental health issues have recently been characterised by Dr Kwok as “severe and unremitting”.[18]
[16] Ibid.
[17] TB 52, 58, 59.
[18] August 2023 report of Dr Kwok at ATB2632; September 2023 report of Dr Kwok at ATB2793.
As a result of his mental health issues, the applicant has been hospitalised on multiple occasions, including twice this year for several weeks at a time.
In March 2011, the applicant was notified that consideration was being given to cancelling his 101 visa under section 501 of the Act. In September 2011, however, the decision was made not to cancel his visa. Instead, the applicant was formally warned that his visa may be reconsidered for cancellation if he committed further offences or otherwise breached the character test in the future.
Starting in 2015, two decisions were made to cancel the applicant’s 101 visa both of which were set aside. On a third attempt, however, the 101 visa was cancelled. In dismissing an application to set that third cancellation decision aside, Griffiths J noted that the applicant “… has a lengthy criminal history, including several firearm offences. It is common ground that he has been associated with several outlaw motorcycle gangs. It is also common ground that he has a diagnosed mental illness which has been a causal factor in his criminal offending. It is also uncontroversial that he has been found to be a person in relation to whom Australia owes protection obligations because he is a refugee.”[19]
[19] EWV20 (As Litigation Representative for AFF20) v Minister for Home Affairs (No 3) [2021] FCA 866 at [6].
In 2018, the applicant applied for a protection visa. That application was refused. On review of the refusal decision by the Tribunal, however, the matter was remitted to the respondent for reconsideration subject to a direction requiring that the respondent accept that the applicant met the definition of refugee found in s5H(1) of the Act.
On reconsideration, in January 2020, the applicant’s application for a protection visa was again refused, this time on the basis mentioned earlier, that the respondent’s delegate was not satisfied that the criterion set out in s36(1C) of the Act was satisfied.
In August 2021 the Tribunal affirmed the delegate’s decision.[20] The Tribunal’s affirmation decision was, however, quashed on appeal.[21]
[20] TB 2535-2593.
[21] AFF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1564 ('AFF20').
The applicant has a significant criminal record in Australia. Aspects of that record are outlined later. As a result of his offending, the applicant has been free in the community for an aggregate period of only around 28 months since October 2008. From September 2015 to June 2018, he was on remand or in prison. Since June 2018, he has been in immigration detention.
He has not had a pleasant time in prison or detention. In 2020 he was moved from detention to Silverwater prison for his own safety. While in detention he has expressed concern about the risks of being raped, concerns exacerbated by an incident in January 2023 in which a detention centre employee hit the applicant’s genitals with a billiard cue.
Convicted of particularly serious crime?
The applicant concedes that he has been convicted by a final judgment of a particularly serious crime.[22] He was right to do so.
[22] A SFIC [18].
Aspects of the applicant’s criminal history are outlined later. For present purposes however, I simply note that, in 2008, the applicant was convicted of an offence under s 86(2)(a) of the Crimes Act 1900 (NSW) of taking or detaining a person with the intention of obtaining an advantage in the company of another. Despite that conviction having been dealt with by the Children’s Court (a Court precluded from imposing a sentence of imprisonment), the relevant offence was, as Bromberg J found in AFF20,[23] still one punishable by imprisonment for a maximum term of not less than three years. Hence, it was a serious Australian offence.[24] As such, it constituted a particularly serious crime.[25]
[23] AFF20, [19]-[21].
[24] Act, s5(1).
[25] Act, s5M.
Danger to the Australian community - general principles
The meaning to be given to the expression “danger to the Australian community” is that reflected in the judgment of the plurality in DMQ20.[26] There it was found to be a composite expression, with the nature of the Australian community informing what is capable of being a danger.[27]
[26] SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104 at [15], [82] (‘SLGS’) per Jackson J, with whom Snaden and Rares J agreed. Rares J, who had delivered a separate judgment in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84 (‘DMQ20’), appears now to have accepted the approach of the plurality in DMQ20. See SLGS a [1].
[27] Ibid, [54].
While a composite expression, this is not to say that meaning cannot be given to the concepts of “danger” and “Australian community” employed in it.
In this regard, the concept of “danger” carries its ordinary meaning.[28] While that meaning eludes a precise definition,[29] it nevertheless entails a consideration of probability and consequence[30] or, put another way, one which is constituted by “two concepts along spectra of ‘probability and consequence’”.[31] As such, “it is concerned with the likelihood of harm and the seriousness of the harm if it was to eventuate.”[32] It “…combines an assessment of how probable harm is with an assessment of the seriousness or severity of the consequence if the probability eventuates.”[33]
[28] DMQ20 at [106], [118].
[29] Ibid at [118].
[30] Ibid at [107].
[31] SLGS at [62].
[32] YFMG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1342 at [10] (‘YFMG’).
[33] Ibid at [9].
As for the likelihood of harm, danger does not require that there be a present and serious risk.[34] Instead, it speaks of “…a risk of harm that extends beyond what ordinarily attends routine human activity…” so that “…the likelihood that he or she might visit harm upon others must at least rise beyond what is contemplated by ordinary personal interactions.”[35]
[34] SLGS at [48]; cf Logan J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636 at [83].
[35] DMQ20 at [114]-[115].
As for the seriousness of the harm of which there must be a risk, it is not necessary that it involve the commission of a particularly serious crime. As Tamberlin DP indicated in WKCG,[36] the question of whether a person has been convicted of such a crime is one separate and independent from the question of whether the person is a danger. Instead, the requisite harm simply “… must be non-trivial, and …[be] likely to involve physical or psychological injury. It is a risk of harm that extends beyond that which ordinarily attends routine human activity or ordinary personal interactions or the typical consequences of routine interaction.”[37]
[36] WKCG and Minister for Immigration and Citizenship [2009] AATA 512 at [29] (‘WKCG’).
[37] SLGS at [69].
Accordingly, “…'danger' presupposes that there should be something about a person's character or proclivities (or both) that suggests a probability and quality of harm to others that is beyond the typical consequences of routine interaction.” [38]
[38] DMQ20 at [116].
It is consistent with these aspects or elements of the “danger” concept for consideration to be given to “… whether the harm that will eventuate if the danger becomes a reality is non-trivial and whether it would be harm of a physical or psychological kind. It would also be consistent with that approach to consider whether the risk that the harm will eventuate goes beyond that which is contemplated in ordinary personal interactions.”[39]
[39] SLGS at [82].

As for the Australian community concept, it is a reference to “… the community as a whole and/or any person or persons who are part of it.”[40]
[40] YFMG at [9]; SLGS at [83]; DMQ20 at [127], [151].
Having outlined what is meant by the danger to the Australian community expression, I turn now to address how it is assessed.
Whether a person is a danger to the community is a question of fact,[41] to be answered having regard to all the circumstances of the case.[42] It would ordinarily “…fall to be assessed by reference to the person's prior conduct and the likelihood that it might be repeated,”[43] having regard to “… prospects of recidivism, remorse and rehabilitation.”[44]
[41] SZOQQ v Minister for Immigration and Citizenship (2012) 126 ALD 200; [2012] FCAFC 40 (‘SZOQQ’) at [14]. This decision was overturned on appeal but without questioning the validity of the propositions in respect of which I cite it as authority in these reasons.
[42] WKCG at [25]; DOB18 at [78].
[43] DMQ20 at [116].
[44] Ibid at [128].
In conducting such an assessment, considerations of relevance may include the extent of the relevant person’s criminal history, the seriousness and nature of the crimes committed, the period over which they took place, the length of sentences imposed and any mitigating or aggravating circumstances.[45] A primary consideration, however, is the risk of recidivism, with the assessment of that risk to be informed by prospects of rehabilitation[46] and certain other considerations, such as prior criminal history.[47]
[45] These considerations operate as a guide, rather than a checklist; “the list of matters in WKCG remains useful provided it is not approached as a 'test' or a mechanical checklist but as a guide”. See YFMG at [9]. See also SLGS at [85].
[46] WKCG at [26].
[47] Ibid at [27]; LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1591 (‘LKQD’) at [12]. In DOB18 at [78] Logan J accepted these considerations as being pertinent
An assessment of whether a person is a danger to the community does not call for the application of any test of proportionality.[48] It does not involve a balancing exercise, taking into account the “…risks to a claimant and the risks to the country in which refugee status is sought”.[49] Indeed, as no occasion for the exercise of any discretion arises, the legal (or human[50]) consequences for the applicant should his application for review be unsuccessful are not of direct relevance.[51] This is not to suggest, however, that those consequences have no indirect relevance. The factual question I must decide is whether the applicant is a danger to the Australian community. I must be satisfied on reasonable grounds that he is such a danger, in order for the s36(1C) criterion not to be satisfied.
[48] The application of such a test in the circumstances was emphatically rejected in SZOQQ at [14], [20] and [49]; see also HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392 at [148]-[149].
[49] SZOQQ at [14].
[50] Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423; [2018] FCAFC 225 at [3].
[51] MVLW and Minister for Immigration and Border Protection (Migration) [2017] AATA 1557 at [29]-[33]; see also MHCZ and Minister for Home Affairs (Migration) [2019] AATA 4259 at [19].
While I am not burdened by the need to conduct any balancing exercise or apply any proportionality test, I nevertheless accept that the strength of any material on which I rely in coming to the requisite state of satisfaction ought to be commensurate with the seriousness of the consequences for the applicant of me doing so.[52] Satisfaction is not “a state of mind attained or established independently of the nature and consequence of the fact or facts to be proved.”[53]
[52] Mailau v Minister for Immigration [2023] FCAFC 12 at [94] (‘Mailau). While the Tribunal is not bound by Briginshaw v Briginshaw (1938) 60 CLR 336 (Mailau at [91]-[93]) it is not inappropriate for the Tribunal to take into account the seriousness of the consequences of its decision;see Spano v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 389 at [97].
[53] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
Here, the consequence for the applicant of me being satisfied that the applicant is a danger to the community may well have been his ongoing deprivation of liberty for an indefinite period except that, after the hearing of these proceedings, the Tribunal was advised that the applicant had been released into the community, subsequent to the decision of the High Court in NZYQ.[54] Given that release, it might now be that the consequence for the applicant of me being satisfied that the applicant is a danger to the community will be his need to comply with broadly expressed bridging visa conditions “…for an indeterminate period, with the prospect of a mandatory sentence of imprisonment if certain of those conditions are breached. For any breaches that do not attract imprisonment, the consequences are also uncertain, but appear to be that the Applicant’s Bridging Visa could be cancelled.”[55]
[54] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.
[55] HSKJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 398 at [177]
Applicant is a danger to the community
I find that, should the applicant be free in the community, there is a risk which rises beyond that which is contemplated by ordinary personal interactions, indeed, one which is significant, of him causing non-trivial harm to a person or persons in the Australian community, being harm which would involve physical or psychological injury and which would extend beyond that which ordinarily attends routine human activity or ordinary personal interactions or the typical consequences of routine interaction.
In arriving at this finding, I considered the applicant’s past conduct (taking into account matters such as his history of offending, the seriousness and nature of the crimes he committed, the period over which they took place and the sentences imposed), the risk of recidivism (taking into account matters such as remorse, insight and rehabilitation) and any mitigating circumstances.
Past conduct
The applicant has an extensive criminal history for a person who has been free in the Australian community for only around 28 months since October 2008. His offending in that period has essentially involved driving offences, firearm offences and a kidnapping offence.[56]
[56] Australian Criminal Intelligence Commission report of April 2019 (TB 479-481).
In June 2008, the applicant was convicted of Responsible Person/Custodian Not Disclose Driver’s Identity.
In July 2008, the applicant was convicted of Learner Not Accompanied by Driver/Police Officer/Tester. Two other charges, Not Carry Licence and Fail to Display “L” On Car As Required, were proven but no conviction was recorded.
In August 2008, the applicant was convicted of Drive Whilst Disqualified.
In November 2008, the applicant was convicted in the Children’s Court of Take/Detain person in company w/I to obtain advantage, resulting in the imposition of a control order (i.e. juvenile detention) for two years (being the maximum sentence that could be imposed in the circumstances, given the jurisdictional limit of the Court). That offending related to an incident in February 2008 which involved the applicant, in company, using a gun to make multiple threats to shoot the victim and his family. The applicant was the “principal offender who gave the directions to his older co-defendants, he was the main instigator of the offence, he certainly was the person identified as wielding the weapon”.[57] The use of a weapon was characterised as “extremely serious” so that the objective criminality was “in the upper range of seriousness”.[58] Moreover, the sentencing Magistrate was unable to see any evidence of demonstrated rehabilitation.[59] While it was then thought that the applicant might benefit from an assessment regarding mental health, torture and trauma, he refused any relevant intervention and counselling.[60]
[57] Sentencing remarks of Magistrate Culver (TB 260).
[58] TB 258.
[59] TB 264.
[60] TB 259.
On appeal, the sentence imposed by the Magistrate was confirmed, the presiding Judge noting that, for the applicant, “medical treatment is crucial and the treatment plan should be followed up”.[61]
[61] TB 267.
In November 2009, the applicant was convicted in the Children’s Court of four firearm related offences: Fire Firearm manner likely to injure persons/property; Fire firearm in or near public place; Possess loaded firearm in public place; Possess unauthorised firearm. Another two-year control order was imposed as a result (albeit the last offence attracted only a 12-month control order). Again, the two-year control order sentence was the maximum that could be imposed in the circumstances given the jurisdictional limit of the Court. The relevant offending related to an incident that occurred in October 2008, while the applicant was on bail and awaiting sentencing for the February 2008 kidnapping. It entailed what the presiding Magistrate described as “some of the most serious offences,” which, in terms of criminality, was “at a minimum…about halfway up the scale”.[62] The applicant was considered to be capable of the most serious crimes of violence so that it was to the good that he was receiving “treatment for his condition in custody”.[63]
[62] TB 270.
[63] Ibid.
In May 2014, the applicant was found to have fired a firearm at a dwelling-house with reckless disregard for the safety of any person.[64] This finding was made after a special hearing conducted under mental health legislation, with no conviction being recorded as the applicant was unfit to stand trial. The applicant had then been in custody for over two years, having been arrested at the time of the relevant incident in April 2012. The sentence imposed was a term of imprisonment of two years and three months for what the presiding Judge characterised as a “very, very serious crime.”[65] What occurred involved a joint criminal enterprise with others who had been introduced by the applicant to members of a chapter of the Hells Angels. One of the applicant’s co-offenders fired thirteen rounds at a block of flats which, for the residents of the flats, would have been a “frightening and traumatic experience”.[66] While not the “mastermind,” the applicant liaised with and directed his co-offenders.[67] Reports received by the Judge presiding indicated that the applicant had undergone various treatments and drug regimes for his mental health issues, but that he still required significant and continuing treatment.[68] Of note, his Honour stated that the applicant “expressed no remorse” for the offending and that he had not fully grasped the objective seriousness of the matter.[69]
[64] TB 51.
[65] TB 62.
[66] TB 57.
[67] Ibid.
[68] TB 59.
[69] TB 61.
In January 2015, the applicant was convicted of Learner not accompanied by driver/police officer/tester, and also of Learner Driver Not Display “L” Plates as Required.
In December 2015, a charge of Drive motor vehicle during disqualification period was found proven, but no conviction was recorded.
In March 2016, the applicant was convicted of Use offensive language in/near public place/school.
In June 2017, the applicant was convicted of seven firearm related offences. For the offence of Use unauthorised prohibited firearm he was sentenced to imprisonment for a term of three years and seven months. For the offence of Acquire Prohibited Firearm – Subject Prohibition Order he was sentenced to imprisonment for a term of two years and eight months. The following other offences were taken into account in sentencing the applicant: Firearm found at premises – Subject to Prohibition Order; Acquire Ammunition Subject to Prohibition Order; Possess Unregistered Firearm – Prohibited Firearm; Possess Ammunition without holding Licence/Permit/Authority; Not Keep Firearm Safely – Prohibited Firearm. The offending related to an incident that occurred in September 2015, at a time when the applicant was on bail for another offence involving a firearm. Gunshots were reported coming from the applicant’s (and his family’s) residential address. Police attended and recovered an automatic arms model rifle and 16 cartridges. According to the presiding Judge, the offence was “committed without any regard for public safety” and was “above the midrange of objective seriousness” due to the nature of the weapon and the suburban setting for the offending.[70] His prospects of rehabilitation were considered to be, “at best, guarded”.[71]
[70] TB 290.
[71] TB 294.
It is noteworthy that prior to his offending in September 2015, while in the community, the applicant was said to be “under the care of his general practitioner and a psychologist and receiving appropriate medication for his conditions”.[72]
[72] TB 292.
It is clear from what has just been said that the applicant engaged in some very serious offending and that he did so relatively frequently over the limited period in which he was free in the community. While certain of the sentences of imprisonment imposed on the applicant may have been less than the maximum allowed, the imposition of any term of imprisonment reflects a view that the offence concerned was serious. In this regard, “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….” [73] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[74] Moreover, a sentence of less than the maximum that is permissible simply suggests that the relevant offending was, in the context of offences of the type committed, not as serious as it could have been. It does not, however, suggest that the offending was not serious.
[73] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].
[74] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
While in prison the applicant was given a range of administrative sentences, including for intimidation (on multiple occasions), assault and possessing an offensive weapon.[75]
[75] TB 1492.
While in detention, he is said to have:
(g)in September 2018, pushed a detention facility officer.[76]
[76] TB 1685.
(h)In November 2018, assaulted his partner (an assault which he and his partner deny).[77]
[77] TB 1680-1682.
(i)In December 2018, used abusive language at a detention facility officer.[78]
[78] TB 1678-1679.
(j)In May 2019, been aggressive and non-compliant in the context of a search said to have been conducted due to intelligence received that the applicant may be concealing narcotics.[79]
(k)In December 2019, fought with another detainee.[80]
(l)In December 2020, fought with another detainee[81] and to have hit another detainee in the back of the head.[82]
(m)In July 2021, attempted to attack another detainee.[83]
(n)In July 2022, fought with another detainee.[84]
(o)In September 2022, threatened to stab another detainee’s mother.[85]
(p)In February 2023, struck another detainee in the face.[86]
(q)In April 2023, threatened another detainee.[87]
(r)In May and June 2023, threatened a detention facility officer.[88]
(s)In July 2023, demanded sexual acts from another detainee.[89]
[79] TB 1671, 1673-1674.
[80] TB 1664.
[81] TB2974.
[82] TB 2767.
[83] TB 2953.
[84] TB 2921-2923.
[85] TB 2916-2920.
[86] TB 2908.
[87] TB 2902.
[88] TB 2897, 2890-2892.
[89] TB 2885.
None of the individual incidents just mentioned in prison or detention have been proven. Indeed, as noted by the applicant, he has “not been charged or convicted of any offences in immigration detention.”[90] Nevertheless, when reports of these incidents are considered in the aggregate, I find that the applicant’s conduct in prison and detention has not been consistent with what would be expected of a person who had been fully rehabilitated and presents minimal risk of recidivism. While the applicant has offered a relatively innocent explanation for certain of these incidents,[91] he has nevertheless acknowledged that his conduct in detention and in prison was at times unacceptable.[92]
[90] A SFIC [117].
[91] TB 875-880.
[92] The applicant acknowledged in July 2019 that “my behaviour in detention has not been the best” (TB 2269) and that his “behaviour in Jail and detention was unacceptable” (TB 2277).
Given the nature of the conduct engaged in by the applicant in the past, there is the potential for members of the Australian community to suffer very serious harm should the applicant again engage in conduct of that type. Such harm would be non-trivial, involve physical or psychological injury and would extend beyond that which ordinarily attends routine human activity, ordinary personal interactions or the typical consequences of routine interaction.
Recidivism
The mere fact that the applicant has engaged in certain conduct in the past is not, however, probative of there being a significant risk of him doing so again.[93]
[93] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65]: “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”
According to Mortimer J in Splendido,[94] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. While, in some circumstances, the past may constitute a reliable guide to the future,[95] for it to do so, more than a mere outline of past conduct needs to be shown if over-valuing personality-based explanations and under-valuing situational-based explanations for conduct are to be avoided.[96] Included within that “more” are facts about the relevant person’s circumstances, or about the nature and circumstances of the person’s past conduct, that rationally support the assessment of the person’s risk of engaging in the relevant conduct.[97]
[94] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.
[95] See, for example, Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 at [26], where the Court was dealing with an applicant who “had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so”.
[96] See Hughes v R [2017] HCA 20 at [70]-[72] per Gageler J.
[97] In Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559 at 574, it was said that the “…extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.” In Splendido at [78], it was said that the “…nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.” In Hughes v R [2017] HCA 20 at [154], Nettle J (albeit in dissent) stated that “Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence.”

As I see it, facts concerning the applicant’s circumstances and the nature and circumstances of his past conduct[98] are supportive of an assessment of his risk of recidivism as being significant, a risk which rises beyond that which is contemplated by ordinary personal interactions.
[98] The task of assessing risk involves the consideration of future possibilities which “proceeds by drawing inferences from known facts” and is based on “reasonable conjecture within the parameters set by the historical facts”: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [38]-[39].
We are not here dealing with a singular offence or conduct so aberrant that there ought to be no expectation of its repetition. In this regard, the plurality in DMQ20 noted that criminal “…behaviour properly described as aberrant or opportunistic might very conceivably be thought not to reflect a level of risk of repetition that is sufficient to constitute its perpetrator as a danger to the community. But the same might not be said of a recidivist offender—for example, one who has repeatedly partaken of criminal misconduct and presents as likely to embark upon similar misadventures in the future.”[99]
[99] DMQ20 at [141].
As just outlined, the applicant has engaged in serious offending on multiple occasions when free in the community, over a limited period of time. This is suggestive of some character trait or condition that renders the applicant prone to engaging in the type of conduct of concern. That suggestion finds support in a statement made by a psychiatrist in April 2017 who, after examining the applicant, said he had found “evidence of an underlying personality disorder, with antisocial traits.”[100] The existence of that disorder and those traits is consistent with views expressed by Dr Kwok. Although she did not consider the applicant to be inherently anti-social, when listing factors of relevance to the applicant’s risk of re-offending in a July 2019 report, she included not only his mental health disorders but also poor impulse control and aggressive behaviours.[101] Indeed, in December 2020 Dr Kwok stated that “…we cannot assume that psychiatric treatment is the principal solution. Other risk factors that need to be addressed include antisocial cognition and personality pattern (low self-control, anger) and low engagement in prosocial leisure pursuits.”[102]
[100] April 2017 report of Dr Furst at TB 318.
[101] TB 1052.
[102] TB 2306.
On behalf of the applicant, however, it is contended that “the conditions are now in place to safely manage the Applicant’s transition back into the community, and the conditions that gave rise to his offending have fallen away, such that he does not present a danger to the community.” [103]
[103] A SFIC [116].
In elaboration of the latter part of that contention it is said that “the Applicant’s circumstances have fundamentally shifted since he last offended. His path to offending was characterised by a combination of poorly understood, largely untreated and very severe mental illness; substance abuse; and a dysfunctional lifestyle including associations with peers also engaged in substance abuse and offending.”[104]
[104] A SFIC [113].
I am not satisfied that the “conditions that gave rise to…[the applicant’s] offending have fallen away.” Nor am I satisfied that that there has been a fundamental shift in the applicant’s circumstances in the way suggested.
As for conditions that gave rise to the applicant’s offending, he has acknowledged that illicit drug use was such a condition.[105] The validity of that acknowledgement finds support in Dr Kwok’s opinion that the applicant’s risk of re-offending is, at least in part, “dependent upon his ability to remain abstinent from substance use…”.[106]
[105] See, for example, the applicant’s statutory declaration made in May 2011 at TB514: “When I took drugs I became nasty”.
[106] ATB 2636.
I am not satisfied that the applicant would remain abstinent from substance abuse if free in the community. His ability to do so has not been tested. What is clear, however, is that he has been a long-time user of illicit drugs.
Prior to being placed in juvenile detention in 2008, the applicant had been using drugs “nearly every day for two years”, the drugs being cocaine, Ice (crystallised methamphetamine) and ecstasy.[107] Before his offending in April 2012 he was “smoking a lot of ice” such that, at the time of the offending, the applicant says that he hadn’t “really slept in about four weeks.”[108] Similarly, Ice use was a feature of his offending in September 2015. At that time, he was using about $200 of Ice per day.[109]
[107] TB 183, 303, 304, 514.
[108] TB 187, 2241.
[109] TB 303. See also TB 316.
Of particular concern is that the applicant would appear to have continued to use Ice in the relatively supervised and controlled environment of immigration detention. At the hearing, the applicant acknowledged he had used Ice when in detention, earlier in 2023. He said he had done so, however, only once. I am not, however, satisfied of that. I note that in discussions with Dr Kwok in July 2023 the applicant was said to have “admitted to using crystal methamphetamine in detention and, according to his self-report, he last used the drug in June 2023.”[110] He also told Dr Kwok then, however, that, while he had not used illicit drugs for two months, he could not recall how much Ice he had been using.[111] In an IHMS Client Medical Request Form dated 13 May 2023, purporting to be a request from the applicant, it is said that he “had been smoking ice previously and he would like assistance with not doing it anymore.”[112] In a Liverpool hospital discharge form of 26 July 2023 a psychiatry registrar stated, in relation to the applicant, that there “… was significant suspicion that he had been using ICE in prison as well.”[113] The registrar’s impression was “Relapse of schizophrenia, due to both substance use (ICE) and medication non-compliance.” As for the applicant’s health status, the registrar described it as “Schizophrenia, Drug induced psychosis.”[114]
[110] ATB 2633.
[111] ATB 2631: – in September 2023, however, the applicant told Dr Kwok said that the last time he had used illicit drugs was “a long, long time ago” (ATB2792)
[112] ATB 2839.
[113] TB 2846.
[114] TB 2847.
Another condition of the applicant’s offending which I am not satisfied “has fallen away” concerns his mental health issues.
It is clear that the applicant’s mental health issues were causally linked to at least certain of the applicant’s offending (albeit, not to all of his offending[115]). Indeed, on behalf of the applicant, it is said that the “… nexus between the Applicant’s mental health (exacerbated by his substance abuse) and his offending is undeniable.”[116] In the context of acknowledging that his conduct in detention “has not been the best” the applicant explained the he is “a mentally ill man and I don’t get aggressive by choice, but there have been times when my mental health issues had a better of me.”[117]
[115] Judge Herbert in June 2017 did “not accept that the …[applicant’s] mental health contributed to the offence in a material way” (TB 294).
[116] A SFIC [21].
[117] TB 2270.
Despite their acknowledged role in his offending, on behalf of the applicant, it was nevertheless submitted that that “there do not appear to be any current concerns that he poses a risk to himself or others”[118] on the basis of his mental health issues.
[118] A SFIC [111].
I do not accept that submission.
For one thing, it does not address the question in issue. The Tribunal is not required to assess whether there are current concerns as to risk. More relevant to the Tribunal’s task is the acknowledgment on behalf of the applicant that his “…mental illness may be understood to give rise to some risk of aberrant conduct, and perhaps even a risk of harm to himself and others. Unfortunately, that is in the nature of acute mental illnesses which, as in the Applicant’s case, feature psychosis, hallucinations, hyper-responsiveness to ‘triggering’ stimuli and other serious and entrenched symptoms.”[119]
[119] A SFIC [98].
It is true that on 16 August 2023 the applicant was assessed as a low risk of self-harm and of harm to others,[120] while on 30 August 2023 he was assessed as being alert and oriented, with nil thought disorder, and as being coherent and logical.[121] These assessments, however, were made after the applicant had recently been released from around a month’s in-patient treatment at Liverpool hospital and when he was the subject of a compulsory treatment order.
[120] ATB 2815.
[121] ATB 2638.
The fact remains that the applicant continues to be afflicted by severe mental health issues, issues which would appear to have played a significant underlying role in relation to at least some of the applicant’s offending. In her September 2023 report, Dr Kwok opined that the applicant’s mental health “has at all times been quite poor, and his mental disorders are severe and unremitting” and that his “psychotic symptoms are ongoing, and his conditions of schizophrenia and PTSD are severe and unstable.”[122] As just mentioned, the applicant recently spent around four weeks as an involuntary in-patient in the Liverpool Hospital, a period during which he was “floridly psychotic” and treated with a particular course of medication because of his disorganisation, aggression and psychosis.[123]
[122] ATB 2793.
[123] ATB 2799-2800.
Contrary to the applicant’s submissions, his mental health issues were neither “poorly understood” nor “largely untreated.” Indeed, he has received extensive treatment for those issues for some time.
The applicant began to receive treatment while in juvenile detention,[124] some as a hospital in-patient, after having then been diagnosed as suffering from PTSD, schizophrenia and a mood disorder.[125] According to his mother, it was then that the applicant started to receive proper treatment, resulting, she said, in noticeable behavioural improvement.[126] In May 2011 the applicant stated that he had “…been on so many medications…” and that he was seeing a psychologist three times a week and a psychiatrist once a week.[127] As noted earlier, by May 2014, he had undergone various treatments and drug regimes, albeit that he was said to still require significant and continuing treatment. In around July 2014 his case was considered by a mental health review tribunal. This led to further changes in medication (changes which were said by the applicant to have improved his mental health[128]). Prior to his offending in September 2015, he was said to be under the care of a general practitioner and a psychologist and receiving appropriate medication for his conditions.[129] In July 2015 he had a “stable” GP and psychologist who were then managing his health in a holistic way.[130] He was taking three different medications “and they worked”.[131] After offending in September 2015 and while in custody, the applicant continued to take those three medications[132] and again spent time in the Long Bay hospital.[133] In March 2017, the applicant said he had been on medication for his mental health issues for nine years.[134] In convicting the applicant in June 2017 her Honour Judge Herbert noted that the applicant “has consistently been diagnosed as suffering from chronic and severe PTSD and schizophrenia.”[135]
[124] TB 313, 515.
[125] TB 185, 516, 539, 2239.
[126] TB 2253.
[127] TB 185, 516.
[128] TB 187, 2242.
[129] TB 292.
[130] TB 2239.
[131] TB 188.
[132] Ibid.
[133] Ibid.
[134] TB 301, 2239.
[135] TB 292.
Despite the acknowledged causal nexus between his mental health issues and his offending, it was nevertheless submitted that the Tribunal should disregard so much of the “danger” as is attributable to those issues. It is said that “such ‘danger’ as might arise from the Applicant’s mental health disabilities is plainly outside the scope of ss 36(1C) and 36(2C)(b).”[136] To do otherwise would, it was said, lead to a perverse outcome in which the applicant would be denied protection because of the symptoms of his mental health issues when it was those symptoms that resulted in “the Applicant being found to be a person in respect of whom Australia has protection obligations.”[137]
[136] A SFIC [99].
[137] A SFIC [100].
I reject that submission.
First, the basic reason for the applicant being found to be a refugee was because he was considered to have a well‑founded fear of persecution were he to be removed to Afghanistan. While in the case of the applicant that fear arose by reason of him being a person with severe mental illness,[138] it was the fear that led to the refugee finding, not the illness. Moreover, any denial of protection to the applicant would be because he is a danger to the community, not because he suffers from mental health issues.
[138] TB 453.
Secondly and more significantly, the Tribunal’s task in this proceeding is to assess whether the applicant is a danger to the community. It would be inconsistent with that task for the Tribunal simply to disregard so much of the applicant’s danger to the community as is causally connected with a particular factor or factors.
The applicant’s submission is reflective of one considered and rejected in YFMG.[139] There, the Court rejected a submission that, in deciding whether an applicant for a protection visa is a danger to the community, a person’s mental health issues could only be brought to account in a way that was favourable to the applicant, as mitigating circumstances.[140] It was not an error for the Tribunal to have treated an applicant’s “significant and longstanding mental health issues” as a factor in support of a finding that the applicant in that case was a danger to the community.[141]
[139] YFMG.
[140] Ibid at [5],[6] [16].
[141] Ibid at [11].
A condition applicable at the time of the applicant’s offending was said by him to include his peer group associations, i.e., his friends. He said in March 2017 that he had no contact with them and wanted to keep it that way.[142] He reiterated that in July 2019.[143] Whether he would enliven old associations were he to be released into the community, however, is unknown. He has done so in the past.[144] He says that now he will not. It does appear, however, that the applicant remains susceptible to negative peer pressures. In this regard, in September 2023 he told Dr Kwok that he had stopped taking medication because other detainees had told him he would not get a visa if he had a mental illness.[145]
[142] TB 185.
[143] TB 2269.
[144] For example, when released from juvenile detention in October 2011 the applicant said that “bad associates… came back into my life. I had nothing else going on and no one to hang out with, as my family weren’t around or too distracted with other things.” (TB 186).
[145] ATB 2791.
Another factor that would appear to have contributed to the applicant’s offending, albeit not raised by the applicant in his submissions, concerns personality traits and disorders conducive to offending. They are discussed earlier. They have not “fallen away”.
Contrary to the submission made on behalf of the applicant, I am not satisfied that conditions are now in place to safely manage his transition back into the community such that he will not be a danger to the community.
Were the applicant to be released into the community, his treatment needs would be extensive.
Dr Kwok recommended “both pharmacologic and evidence-based psychosocial treatments provided by a multidisciplinary team consisting of his treating doctor, psychiatrist, psychologist (for trauma-therapy), AOD counsellor and a community mental health team”. According to her, the applicant requires “intense and long-term treatment”, as well as “strong prosocial support, family support, and close supervision in order to not return to his former antisocial peers and problematic behaviours.”[146]
[146] ATB 2633.
Dr Kwok’s views as to the extent of the ongoing treatment required by the applicant echo those expressed in March 2017 by a clinical psychologist, who stated that the applicant required close psychiatric and psychological monitoring “for many years to come.”[147]
[147] TB 309: March 2017 report of a clinical psychologist Sam Borenstein.
The difficulty with this is that, as I see it, the more extensive the treatment needs of a person the less likely it is that those needs will be met. This is the more so in a context where the person with the needs has a history of non-compliance with relevant treatments. The applicant has such a history.
While the applicant now says that that he will comply with treatment recommended to him and that he will keep taking his medication,[148] previous periods of compliance by the applicant with his medication regimen have not been enduring. Indeed, despite several assurances concerning compliance in the past, the applicant has been repeatedly non-compliant.
[148] ATB 2726.
In May 2011, the applicant said he was “…now on three different medications and they work… I feel so much better now that I’m on this medication.”[149] He then knew, he said, that he would have to keep taking his medication, the medication being “especially important because I know that even if I am just an hour late in taking it I start to hear voices and my paranoia comes back.”[150] According to the applicant, however, some five months later when released into the community in October 2011 he “didn’t last long”.[151] His mother was overseas and he “didn’t remember to take his medications properly as until this time, I was in custody and was always given my medications by the staff.”[152] He was taking illicit drugs but not taking his medication “properly or at all.”[153] As at April 2012, he had “not been taking any medication properly for many months.”[154] It was then that he engaged in what was characterised as “very, very, serious” offending.
[149] TB 516. See also TB 518: “I feel so much better now that I’m medicated.”
[150] TB 517.
[151] TB 185.
[152] TB 185.
[153] TB 186.
[154] TB 187.
Statements similar to those made by him in May 2011 were again made by the applicant in July 2015. He then discussed his mental health supports, saying he had a “stable GP and psychologist who I see regularly”[155] and was getting “lots of support to maintain by (sic) medication…”.[156] He was, he said, on a good treatment plan and was “….really wanting to keep up with my treatment and make myself well.”[157] He was then enjoying life and feeling very settled, stating that he was “very confident in myself that I won’t get into trouble again.”[158] Around two months later, the applicant committed serious firearm offences and was using about $200 of Ice per day. This relapse was said to be explicable by reason of the applicant having become distraught about the possibility of his removal to Afghanistan, after receiving a notice of intention to cancel his visa. It is difficult to lend much credence to that explanation, however, given that the relevant notice was given several months before the above-mentioned statements of the applicant in July 2015.[159]
[155] TB 2239.
[156] TB 2243.
[157] TB 2244.
[158] TB 2249.
[159] TB 1039, 2355, 2441.
In August 2016, the applicant was said to have been compliant with his medication regimen since being taken into custody in September 2015 and that he was then “okay on the medication”. By April 2017, however, things had deteriorated so that, according to the applicant “Every day is hell”.[160]
[160] TB 315.
For multiple periods while in detention the applicant has been non-compliant with his medication regimen.[161] For instance, relatively recently, in late June 2023, a psychiatrist reported that the applicant’s adherence with medications for the preceding three months had been inconsistent, he had ceased to adhere to his oral medications, that he lacked insight and he was a risk of harm to himself and others.[162]
[161] A SFIC [57]: “The Applicant has previously ceased taking his medication in immigration detention. He has advised IHMS that he was not coming to medication times ‘due to paranoia.”
[162] ATB 2678.

That there is a real risk of the applicant ceasing to be compliant with his medication regimen when free in the community is reflected in the opinions of two psychiatrists.
In the first, in February 2023, the applicant was said to “not believe he has a psychotic illness or that he requires medication for this. He shows limited understanding of the risks and benefits of treatment or of other activities that may impact his mental health, such as drug use…”.[163] As a result, the applicant was then considered to be at high risk of “self-cessation of medication”, a risk partially managed by him being in immigration detention.[164]
[163] ATB 2803.
[164] ATB 2804.
In the second, in August 2023, the applicant was said to require “… enforced treatment for his mental illness… he acquiesces to treatment rather than actively seeking it and adhering with the plan. His clinical history clearly documents that his adherence ceases as his mental state improves thus resulting in discontinuation of medications and a relapse marked by florid psychosis and aggression.”[165]
[165] ATB 2799.
While acknowledging that the applicant has at times been non-compliant with his medication regimen, on behalf of the applicant, it is suggested that his past non-compliance is attributable to the detention environment. His non-compliance has, it is said, been “undeniably influenced by the lack of appropriate treatment for his PTSD in detention, a lack of awareness and support for his particular vulnerabilities and mental health concerns in immigration detention, and a lack of proactive and preventative mental health support and treatment which would be more available to him in the community.”[166] Later it was suggested that the applicant’s non-compliance was also affected by him having been “sexually assaulted” while in detention.[167]
[166] A SFIC [103].
[167] A SFIC [106]: a reference to him having been hit in the genitals by a SERCO officer with a billiard cue.
I reject that suggestion. It affords no explanation for his lack of compliance prior to June 2018 and ignores the effect on compliance of the applicant’s lack of insight.
The applicant’s lack of insight has been repeatedly and recently noted by several health professionals. As already mentioned, in February 2023, the applicant was said by a treating psychiatrist to “not believe he has a psychotic illness or that he requires medication for this. He shows limited understanding of the risks and benefits of treatment or of other activities that may impact his mental health, such as drug use.”[168] In June 2023, a psychiatrist referred to the applicant’s lack of insight. In early July 2023 this lack of insight was noted by staff at the Liverpool Hospital.[169] In a psychiatrist’s report of August 2023 the applicant was said to have “very limited insight into his mental illness” and was “unable to understand the benefits of long-term mediation (sic) and continued to say that he will cease it once he feels well…which was the pattern in the past.”[170] He required “enforced treatment because of lack of insight”.[171]
[168] ATB 2803.
[169] ATB 2703.
[170] ATB 2799.
[171] Ibid.
This lack of insight was clearly a concern of Dr Kwok. In her September 2023 report, she stated that the applicant had limited insight into his mental health needs.[172] His “…lack of insight into his mental health treatment can affect his responsiveness to treatment.”[173] In addition to lacking insight into his mental health issues, Dr Kwok considered that the applicant had no insight into his offending,[174] something which she suggested would affect the applicant’s engagement with treatment.[175] She elaborated upon this in oral evidence, when she indicated that the applicant’s lack of insight compounds the risk that the applicant will be non-compliant with his medication regimen. Indeed, her evidence overall does not inspire any confidence that the applicant will remain compliant. As to the prospect of him doing so, she says that “[d]ue to his history of non-compliance, I am guarded about his engagement in treatment.”[176]
[172] ATB 2798.
[173] ATB 2795.
[174] Ibid.
[175] ATB 2795.
[176] ATB 2795.
The extensive nature of the applicant’s treatment needs fed into what appeared to be another submission made on behalf of the applicant. His mental health and behavioural issues would, it is said, be more likely to be treated successfully in the community as it is only in the community that he will receive adequate treatment, and stressors he confronts while in detention would not apply.
As for the applicant being relieved of certain stressors should he be released into the community, the immigration detention environment was said to give rise to “constant triggers which exacerbate his mental health conditions.”[177] A return to the community, would, it was said, serve to relieve the applicant of “some of the exacerbating effects of detention on his mental health.”[178] In apparent support of this, the applicant’s mental health was said to have deteriorated severely and significantly since being placed in detention (ie, since June 2018).[179] Reference was made to the applicant being bullied in detention, the destabilising effect of his detention centre movements and to the assault on him by a detention centre staff member in January 2023.
[177] A SFIC [105].
[178] Ibid at [112].
[179] Ibid at [27], [30]. Note, however, submissions from the applicant to the contrary, suggesting recent improvement in the applicant’s mental health; see A SFIC [10]-[13]. Note also that in 2019 the applicant stated that his mental health had somewhat stabilised since his transfer from prison to detention (TB 2271).
I find it to be self-evidently correct that the applicant would, on release into the community, no longer be affected by stressors referrable to being in a detention centre. Other stressors would, however, apply, such as those that arise from normal day-to-day living in the community.[180] The net effect on the applicant’s risk of recidivism of replacing one set of stressors with another is left to speculation. What is not left to speculation, however, is the fact that he offended frequently in the limited time since 2008, when he has been free of stressors referrable to imprisonment or detention.
[180] In July 2019, Dr Kwok opined that the applicant “may not be fully prepared for the stressors that will accompany his return to the wider community (TB 1047).
As for treatment adequacy, I note the ambivalence inherent in the submission made on the applicant’s behalf that more services outside detention “could significantly assist his mental health conditions and reduce his symptoms.”[181] The word “could” is used, possibly in recognition of the fact that availability of services does not necessarily entail services being availed of. Nevertheless, some support for the relative superiority of treatment available in the community over that available in immigration detention is found in Dr Kwok’s evidence. At least in terms of psychological treatment for the applicant’s PTSD, Dr Kwok opined that the “…intensity of treatment that is required… is not available in immigration detention.”[182] I do note, however, the statement made in a May 2023 health summary report provided to the Commonwealth Ombudsman by the provider of health services to those in detention to the effect that the applicant’s diagnosed conditions (including his mental health issues) are not ones that cannot be properly cared for in detention.[183]
[181] A SFIC [102].
[182] ATB 2797.
[183] ATB 2721-2722.
In any event, the issue before the Tribunal is whether the applicant represents a danger to the community. It is not where he can receive better treatment.
Consistently with the submission concerning the quality of treatment available in the community, however, it was also submitted that being a hospital in-patient offered a better environment to treat the applicant’s issues, relative to the environment found while in detention. According to Dr Kwok, compared to detention, “…hospital provided better supervision of… [the applicant’s] adherence to his medication regime. The hospital also provided a more controlled environment with less people which helped with settling his psychotic symptoms.”[184] This submission appeared to be directed to that part of the applicant’s plan on his release into the community which involved him obtaining admission to a hospital.[185] Evidence was provided by his sister that some time had been spent in gathering information about how to obtain admission (requiring a referral by a general practitioner) and the cost of hospital admission (a cost for which the applicant’s mother has set aside significant funds).[186] It was said on the applicant’s behalf that “once he has been stabilised in hospital, IHMS updates have recorded no major concerns from the hospital in relation to the Applicant’s behaviour.”[187]
[184] ATB 2797.
[185] The applicant states that he plans to go to hospital if released into community “for a period” (ATB 2726). The applicant’s mother states that the family “is fully aware that …[the applicant] needs to be admitted to hospital or in an inpatient facility as soon as he is released from immigration detention” (ATB 2730).
[186] ATB 2736; TB 2328.
[187] A SFIC [104]. It was said on the applicant’s behalf that IHMS records note updates from the hospital confirming few behavioural concerns from the point which the applicant has stabilised to when he is released from hospital, and his family had reported that during times he has been in hospital they have been able to get more information about his condition, medication and prognosis from hospital staff which is not available to them when the applicant is in immigration detention.
I reject that submission insofar as it was intended that the Tribunal infer from it that hospitalisation of the applicant once free in the community would make it unlikely that his mental health issues will thereafter be of any major concern.[188]
[188] While that appeared from the A SFIC to be the inference that the Tribunal was being asked to draw, I note that the applicant’s family members appeared to see hospitalisation as an opportunity to simply stabilise the applicant’s condition and obtain advice as to the services which the applicant needed on an ongoing basis-see for example ATB 2736 where the applicant’s sister states that “we will organise for him to be admitted to hospital straight away to get stable and to get an opinion and referrals to services that he needs”.
First, it might be that hospitalisation of the applicant would be counter productive. While Dr Kwok was supportive of having the applicant being treated as an in-patient on release into the community,[189] I note that a psychiatric registrar of the Liverpool Hospital appeared to be of a contrary view. According to the registrar, the applicant’s “…risk of self harm, misadventure, aggression and death…will…. not be mitigated by prolonged inpatient admission and may in fact foster a dependency on the hospital which will be detrimental to the patient in the long run.”[190]
[189] ATB 2633; the recommendation being to discharge the applicant to a private mental health hospital; see also TB 1049, where Dr Kwok states that as an in-patient the applicant “may benefit from its routine while he engages with a multi-disciplinary treatment team.”
[190] TB 2846.
Secondly and in any event, hospitalisation in the past would not appear to have provided anything other than temporary respite from the more severe symptoms of the applicant’s mental health issues.
The applicant has on several occasions been an involuntary hospital in-patient receiving treatment for those issues. This occurred twice (or, perhaps, three times[191]) in 2009 and 2010.[192] In a statutory declaration made by him in May 2011, the applicant speaks of having spent two stints in hospital while in juvenile detention, one of four months at the Wyong Hospital and another for six months at the Bronte Adolescent Unit of the Forensic Hospital at Long Bay.[193] In July 2012, the applicant was transferred to Long Bay Hospital under a mental health legislation placement.[194] While in prison after 2015 the applicant was again treated as an inpatient at the Long Bay hospital[195] due to a relapse in his psychotic disorder.[196] In February 2023, the applicant was admitted as an in-patient in a Brisbane hospital where he remained for around a month, receiving treatment for his psychosis. On his return from hospital to immigration detention, the applicant refused to undergo an aspect of his modified treatment (involving regular blood tests)[197] and subsequently became non-compliant with his medication regimen.[198] In early June 2023 the applicant was admitted to Bankstown hospital for an overnight stay after saying words to the effect that “My body is melting, I am spitting poison. Call an ambulance for me as my body is burning, there is chemical over my body.”[199] In early July 2023, the applicant was admitted to the acute mental health unit of the Liverpool Hospital where he remained for around one month. Initially, he spent some time in seclusion after being aggressive and disruptive, refusing medication occasionally and displaying nil insight.[200] In late July 2023 the applicant returned to detention after a compulsory treatment order was granted.[201]
[191] TB 539.
[192] TB 313.
[193] TB 515.
[194] Ibid; TB 313.
[195] TB 177.
[196] TB 305.
[197] TB 2846.
[198] ATB 2676.
[199] ATB 2673.
[200] ATB 2703, 2705.
[201] ATB 2680.
Given what has just been outlined, it is clear that hospitalisation of the applicant in the past has not provided long term relief in respect of the applicant’s mental health issues or, indeed, prevented him from offending.
As mentioned earlier, obtaining admission as a hospital inpatient is an element of the applicant’s treatment plan for when he is released into the community. On behalf of the applicant, it appeared to be submitted that the plan ameliorates the risk of his recidivism to an extent that ought satisfy the Tribunal that he would not be a danger to the community.
I do not accept that submission.
The applicant’s family is said to remain committed to the treatment plan “detailed in their previous statements”.[202] As for that plan, it seems largely to reflect that suggested by Dr Kwok in her July 2019 report[203] and more recently reiterated in her August 2023 report. There it is said that “…treatment in the community will need to begin at an inpatient mental health facility to ensure he complies with his medication regimen. After adequate treatment, the psychiatrist at the facility will assess his mental stability to determine suitability for discharge. I recommend that the CTO remains for …[the applicant]. However, given his current lack of understanding of his CTO, he will need close supervision and monitoring in the community. This will include supervision by a community-based mental health team, his treating doctor, other treatment providers, and his family.” [204]
[202] A SFIC [78].
[203] TB 1049-1050.
[204] ATB 2635.
The applicant’s mother speaks of taking advice and guidance from the family general practitioner (being the general practitioner who was treating the applicant on his release from prison in 2014[205]), having the applicant admitted temporarily as an in-patient for treatment and then, on the advice obtained as a result of that admission, “seek out an appropriate psychiatrist, psychologist and community health mental team to suit his needs. We will also seek out alcohol and drug counselling and courses for him.”[206] Statements consistent with those of the mother are made by the applicant,[207] his sister[208] and his father.[209]
[205] TB 2255, 2243.
[206] ATB 2731. See also TB2323. Similar statements are made by the applicant’s sister at ATB2736 and by the applicant (TB 2273).
[207] TB 2273.
[208] ATB 2736.
[209] ATB 2625, 2626.
As to that aspect of the treatment plan involving the temporary treatment of the applicant as a hospital in-patient, as already indicated, I am not satisfied that it would make it unlikely that the applicant’s mental health issues will thereafter be of any major concern. Hospitalisation in the past has not provided long term relief in respect of the applicant’s mental health issues. In any event, I note that the applicant would seem to have had some reservations about going to hospital on his release into the community, suggesting in July 2023 that he no longer needed to do so.[210] In his oral evidence before the Tribunal, however, the applicant was firm in his commitment to attend hospital on release into the community, explaining that it was necessary in order to enable him to deal with the voices he was hearing.
[210] ATB 2631.
While the treatment plan might be a good one, its effectiveness in ameliorating the risk of the applicant’s recidivism is largely a function of the applicant’s ongoing co-operation in its implementation.
While the applicant has stated an intent to remain compliant with his medication regimen, as already noted, his history of non-compliance coupled with his lack of insight does not inspire confidence that he will do so. I note, for instance, that the applicant was using Ice daily and engaged in serious offending in September 2015, only around two months after stating that he felt his mental health was under control and that he was “on a good treatment plan”.[211]
[211] TB 2243.
It is not only compliance with the applicant’s medication regimen that is a concern. The applicant’s conduct in detention is not suggestive of him being strongly motivated to obtain psychological treatment (noting Dr Kwok’s opinion, mentioned earlier, that it cannot be assumed that psychiatric treatment is the principal solution to the applicant’s issues). In February 2023, a counsellor at the Queensland Program of Assistance to Survivors of Torture and Trauma (QPASTT) reported that, since November 2021, the applicant had attended 34 out of 68 offered sessions.[212] Since moving to a detention centre in New South Wales in early 2023, the applicant has not re-engaged in counselling. According to Dr Kwok, the applicant “is not currently attending therapy groups or classes that are available in detention. He did not report any online engagement with a private psychologist or community-based trauma therapist (e.g. through STARTTS).”[213] Indeed, the applicant was said in August 2023 to have been offered but declined counselling provided by a torture and trauma service[214] (presumably, STARTTS, a NSW Service for the treatment and rehabilitation of torture and trauma survivors).
[212] ATB 2781.
[213] ATB 2636, 2797.
[214] ATB 2814.
I accept that the applicant’s family and partner stand ready to provide support to the applicant in procuring his compliance with the treatment plan and reintegrating him into the community. Provision of support of that nature reflects Dr Kwok’s statement that the applicant would require strong prosocial support, family support, and close supervision in the community if he is not to return to his “problematic behaviours”.
The support which the family and his partner intend to provide takes various forms. For instance, as for the applicant’s compliance with the medication component of his treatment plan, the mother (with whom the applicant would appear to share a very close bond) says that she will be responsible for ensuring that the applicant “complies with what is recommended for him.”[215] She says she will take him to appointments, make sure he complies with his medication and follows any treatment plan.[216] Accommodation with the family will be provided, albeit that in the long term the applicant is considering moving from New South Wales (where his parents live) to Victoria (where his partner lives). Work with his father in his painting business is contemplated[217] (albeit that the applicant may have plans to open a chicken franchise restaurant).
[215] TB 2322.
[216] ATB 2730, 2731.
[217] TB 2273, TB 2326.

I have no reason to doubt the sincerity underlying the offer of support by the applicant’s family and partner. I do have doubts, however, as to how effective any such support will be in addressing the applicant’s risk of recidivism. Support provided in the past by the family and the applicant’s then girlfriend proved to be ineffective in preventing the applicant from becoming non-compliant with his medication regimen, using illicit drugs and engaging in conduct that was a danger to the community.
After his release from juvenile detention in 2011, the applicant’s parents were said by him to “always encourage me to take my medication”[218] and, more generally, to be “so supportive of me”.[219] In April 2011, the applicant’s mother stated that she would “…take him to counselling and psychologists and provide him his medications…”[220] In May 2011, she stated that she would “get him the psychological treatment he needs and make sure he takes his medication.”[221] As things transpired, however, the mother says she was unable to provide adequate support for the applicant.[222] In 2012, less than a year after his release into the community, the applicant was involved in offending in which a firearm was used with reckless disregard for the safety of others.
[218] TB 516.
[219] TB 518.
[220] TB 593-594.
[221] TB 541.
[222] The applicant’s mother says she had to return to Afghanistan temporarily for her mother’s funeral and she was suffering from pregnancy complications and was physically sick (TB 2254, 2435-2436).
At the time of his release from prison in July 2014, the applicant said that his family provided him with significant support. Relative to the time of his release from juvenile detention in 2011, his “family were much better and stable. They were able to provide me with lots of support to maintain my medication and keep my mental health in order…”.[223] His mother was then managing his treatment very closely, giving him his medication every day and making sure he took it.[224] Indeed, in July 2015, the mother stated that it “…is so important that I supervise...[the applicant] with his medication”[225] and that the applicant was “…happy now that he is properly treated and getting the medications he needs”.[226] At that time the applicant said it was his “…mum who takes care of me and makes sure that I get the help and medication that I need.”[227] Around two months after those statements were made and 14 months after his release, however, the applicant was again involved in offending in which a firearm was used without any regard for public safety.
[223] TB 2243.
[224] TB 2244, 2245. See also TB 336 in which a clinical psychologist states that as at May 2015 the applicant’s mother had taken charge of his medications
[225] TB 2256.
[226] TB 2259.
[227] TB 2249.
On behalf of the applicant, it is suggested that this time the support provided by his family will be effective. His family, it is said, have “come to understand his mental illness, and together with treating mental health professionals have developed a practical, comprehensive and achievable treatment plan.”[228] The applicant’s mother says she is now better educated about mental health issues.[229] In July 2015, however, the applicant said he was then on a good treatment plan but then offended in September 2015. Moreover, it is clear from statements she made in April and May 2011 that the applicant’s mother, at least, then well understood the need for the applicant to obtain treatment and comply with his medication regimen. In addition to recognising the need for the applicant to take his medication, I note that she then characterised the applicant as suffering from a “serious mental illness,”[230] having been diagnosed as suffering from schizophrenia, PTSD and a mood disorder.[231] As for the family more generally, they too would then have had an understanding of the applicant’s issues, noting that they are said to have attended a meeting in July 2014 at which the applicant’s symptoms were confirmed.[232] Evidence from the applicant’s mother, father and partner does not inspire confidence in their ability to ensure that the applicant remains compliant with his medication regimen. They each said that they had tried to encourage the applicant to take his medication when he became non-compliant in around June 2023, to no avail.
[228] A SFIC [112]: the “family have developed an informed and accurate understanding of his condition and needs…” (A SFIC [77]).
[229] TB 2323.
[230] TB 540.
[231] TB 539.
[232] TB 314.
It might have been suggested that the applicant’s risk of recidivism is ameliorated by his awareness of the consequences for him, in terms of his right to remain in Australia, were he to re-offend.
I do not consider this to be a protective factor of significance.
When acting rationally, an awareness of potential consequences may serve to moderate behaviour. Given his mental health issues, however, rational conduct by the applicant cannot be assumed. I note that the applicant has on at least two occasions offended while on a bond or bail.[233] More specifically, he has not in the past been deterred from offending by an uncertain migration status. In 2011, the applicant was issued with a formal warning that his visa may be reconsidered for cancellation if he committed further offences.[234] Another notice that threatened the status of his visa was given in April 2015. Hence, his statement in July 2015 that he was very confident that he would not get into trouble again, in part because he had so much to lose, including his life in Australia.[235] Around two months later he again engaged in serious offending.
[233] In October 2008 and in September 2015.
[234] TB 177, 732-738, 2263.
[235] TB 2249.
A finding that the applicant’s risk of recidivism is significant, one which rises beyond that which is contemplated by ordinary personal interactions, is generally consistent with risk assessments in the material before me.
In a May 2011 report Dr Howard, a clinical psychologist, opined that based “…on his vulnerability to influence, his mental health issues and previous lack of adequate controls on his behaviour,…[the applicant] presents as a high risk. However, should he receive adequate supports and supervision, have appropriate mental health management, comply with the medication regime and work to a clear and realistic plan, it is likely that his risk of re-offending would be significantly lowered.”[236]
[236] TB 59, 60.
In May 2014, Judge North of the District Court of NSW found in relation to the applicant that “…given his record and the quite severe nature of his mental health condition, unless he is closely supervised and properly treated he then remains a high risk of re-offending…his prospects of not re-offending and of rehabilitation will depend on how well he accepts and maintains appropriate treatment”.[237] Of note was his Honour’s statement that given the applicant’s “…record and the quite severe nature of his mental health condition, unless he is closely supervised and properly treated he remains a high risk of re-offending…His prospects on not re-offending and of rehabilitation will depend on how well he accepts and maintains appropriate treatment.”[238]
[237] TB 59.
[238] Ibid.
In an April 2017 report, Dr Furst, a psychiatrist, assessed the applicant as a moderate risk of re-offending.[239]
[239] TB 293-294.
In a June 2017 report, Dr Howard opened that the applicant’s “…likelihood of reoffending could be reduced to a moderate level, if a highly structured treatment plan …is implemented and adhered to…”.[240]
[240] TB 346.
Also in June 2017, Judge Herbert considered that the applicant’s “prospects of rehabilitation are, at best, guarded.”[241]
[241] TB 294.
In May 2023, a psychiatrist assessed the applicant as being at a low or low-moderate risk to himself and others “in a controlled environment”, with a moderate to high risk of relapse.[242]
[242] ATB 2711.
In late June 2023, a psychiatrist reported that the applicant’s adherence with medications for the preceding three months had been inconsistent, he had ceased to adhere to his oral medications, that he lacked insight and that he poses a risk of harm to himself and others.[243]
[243] ATB 2678.
On his discharge from the Liverpool Hospital in early July 2023 a trainee specialist opined, in relation to the applicant, that owing to his “… underlying personality vulnerabilities and substance use, the patient remains at chronic risk of self harm, misadventure, aggression and death. This risk will fluctuate depending on their substance use.”[244]
[244] TB 2846.
In an August 2023 mental health assessment, conducted when the applicant was subject to a compulsory treatment order and his significant past history of risk of violence was said to be unknown, the applicant’s risk of harm to himself and others was said to be low.[245]
[245] ATB 2815.
In a psychiatrist’s report of August 2023, the applicant was said to have a “chronic treatment resistant mental illness… He relapses quickly and is a risk to his and others…safety because of his delusions and aggressive behaviours…”.[246]
[246] ATB 2800.
Also in August 2023, Dr Kwok opined that the applicant’s “…risk of re-offending and danger to the Australian community are dependent upon his ability to remain abstinent from substance use and respond to treatment for PTSD and Schizophrenia…without compliance to treatment and support… [the applicant’s] prognosis is poor with a moderate risk of re-offence.”[247]
[247] ATB 2632, 2633.
Dr Kwok remained of that view, as expressed in her report of September 2023.[248]
[248] ATB 2793, 2797.
Mitigating circumstances
As I stated earlier, in assessing whether the applicant is a danger to the Australian community, a primary consideration is the risk of recidivism.[249] Another, to an extent related, consideration is any mitigating circumstances.
[249] FSKY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 2 at [41].
In the circumstances, mitigating circumstances might be considered to include the applicant’s mental health issues, his illicit drug use and the difficulties he endured, and trauma suffered as a consequence, while a boy in Afghanistan and Pakistan.
As for the first of those circumstances and as noted by SM Morris in the previous Tribunal decision concerning the applicant, in Betkoshabeh, a case also concerning a protection visa application, Finkelstein J said “…The Tribunal should have taken into account the fact that it was the appellant’s psychological illness that led to the commission of the offences.”[250] That comment of his Honour, however, was made in the context of considering whether the person concerned had been convicted by a final judgment of a particularly serious crime.
[250] ATB 2583.
When considering the concept of “danger” the focus is on the community, not on matters that might be of relevance to the applicant’s moral culpability. As Colvin J recently noted, the “…statutory concept of danger to the community is not concerned with any evaluation of what might be fair or reasonable to the visa applicant. It does not require any assessment as to whether there is some attribute of the applicant or circumstance pertaining to the applicant which might be weighed 'in favour' of the applicant as part of the balancing of relevant, possibly competing, considerations. Rather, it is concerned with the likelihood of harm and the seriousness of the harm if it was to eventuate. It is concerned with danger to the community as a whole and those who form part of the community.”[251]
[251] YFMG at [10].
Hence, while the applicant’s mental health issues, his drug abuse disorder and his childhood trauma may serve to explain his offending, such an explanation says little of direct relevance to an assessment of the danger he represents. It affects neither the likelihood of harm, nor the seriousness of the harm if it was to eventuate.
Clearly, however, if I were to be satisfied that factors causally connected to the applicant’s offending have been and would remain resolved while he was in the community, that would be of relevance to an assessment of his danger to the community. Resolution of factors that had been a cause of the applicant’s conduct would serve to reduce the likelihood of harm component of the assessment. This was the approach adopted by the Tribunal in the decision the subject of appeal in SLGS.[252] The Tribunal was not prepared to treat childhood trauma as a factor which ameliorated danger in circumstances where there was no evidence of rehabilitation. While that approach was not the subject of direct challenge in SLGS, the Court noted the approach and did not demur from it.[253]
[252] SLGS.
[253] Ibid at [29], [88].
This suggests that in these proceedings, for example, the applicant’s mental health issues might be considered in mitigation if I were to be satisfied that those issues would be, and remain, adequately addressed while he was free in the community. As is apparent from my findings earlier, however, I am not satisfied of this.
Similarly, as another factor causally connected to his offending, the applicant’s drug abuse disorder, might be considered in mitigation if I were to be satisfied that the applicant would not relapse into illicit drug use when free in the community. Again, however, I am not satisfied of this.
DECISION
I do not consider that the applicant is not a person who, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
The decision the subject of review is affirmed.

I certify that the preceding 165 (one hundred and sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

........................................................................
Associate
Dated: 15 December 2023

Date(s) of hearing: 24, 25 & 26 October 2023

Date final submissions received: 20 October 2023

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondent: Jonathan Barrington

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	24, 25 & 26 October 2023
Date final submissions received:	20 October 2023
Solicitors for the Applicant:	Carina Ford Immigration Lawyers
Counsel for the Respondent:	Jonathan Barrington
Solicitors for the Respondent:	Australian Government Solicitor