YBFZ and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 570

YBFZ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 570 (15 May 2025)
Applicant/s:  YBFZ
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2020/4781

Tribunal:Senior Member T Tavoularis
Place:Brisbane
Date:15 May 2025

Decision:
The Tribunal affirms the reviewable decision dated 8 July 2020 and finds that:
(1)having been convicted of a particularly serious crime, the Applicant is a danger to the Australian community within the meaning of ss 36(1C)(b) and s 36(2C)(b)(ii) of the Act; and
(2)the Applicant is not eligible for a Protection visa pursuant to s 36(1A) of the Act.

...........................[SGD]........................
Senior Member T Tavoularis

Catchwords
MIGRATION – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – whether Applicant engages s 36(2C)(b) of the Migration Act 1958 – whether Applicant has been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Mental Health and Wellbeing Act 2022 (Vic)
Migration Act (1958) (Cth)
Cases
DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550
DOB18 v Minister for Home Affairs [2019] FCAFC 63
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104
SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174
WKCG v Minister for Immigration and Citizenship [2009] AATA 512
Secondary Materials
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014
Migration Regulations 1994 (Cth)
Ministerial Direction 75 – Refusal of Protection visas relying on ss 36(1C) and 36(2C)(b)
Protocol Relating to the Status of Refugees
United Nations Convention Relating to the Status of Refugees
Statement of Reasons
THE DECISION UNDER REVIEW

On 8 July 2020, the Applicant (“YBFZ”) was refused the grant of a Protection (subclass 866) (Class XA) visa (“the visa”). This refusal decision (hereinafter referred to as “the decision under review”) was made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent” or “the Minister” or “the Respondent Minister”) and was based on a finding that the Applicant did not satisfy the criterion in s 36(1C) of the Migration Act 1958 (Cth) (“the Act”). Legislative power behind the decision under review rests in s 65 of the Act. Legislative imprimatur for this Tribunal’s determination of the instant application derives from s 500(1) (c)(i) of the Act. This section relevantly facilitates this Tribunal’s review of applications seeking merits review of a decision refusing the grant of a protection visa pursuant to s 36(1C) of the Act.
BACKGROUND
There is tension in the written material about the citizenship of the Applicant. In the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), it is contended “The applicant [is a citizen of Iraq,….]”.[1] In his Form 866 (Application for a protection visa) lodged with the Respondent’s Department in December 2019, the Applicant said that his citizenship at birth was “Eritrean”[2]. He then said in this Form 866 that his current citizenship status was “stateless Eritrean Jehovah’s Witness”.[3] He sought to explain this asserted statelessness in these terms: “I am Jehovah’s Witness and on 25 October 1994 the president of Eritrea….removed Eritrean Citizenship off all Jehovah’s Witnesses by presidential Decree as they would not participate in the referendum for independence from Ethiopia and conscription.”[4]
[1] R2, p 2, [4].
[2] R1, p 29.
[3] R1, p 29.
[4] R1, p 29.
The decision under review records the Applicant’s country of birth as “Eritrea”[5] but records his country of citizenship as “Stateless”[6]. The decision under review then records the receiving country of the Applicant as “Eritrea”[7] and goes on to record the following finding: “I accept….that the applicant’s family are Jehovah’s Witnesses and that he was a Jehovah’s Witness. Therefore, I accept that the Applicant had his Eritrean citizenship revoked and that he is now stateless”.[8] The Applicant’s SFIC says “the Applicant is not a citizen of Eritrea and is stateless. His Eritrean citizenship was revoked in October 1994, following presidential decree, because his family were Jehovah’s Witnesses.”[9]
[5] R1, p 496
[6] R1, p 496.
[7] R1, p 496.
[8] R1, p 499.
[9] A1, p 1, [5].
The parties agree that the Applicant arrived in Australia on 7 February 2002 after having fled Eritrea and gone to Ethiopia. There is further tension in the material about the Applicant’s date of birth. In his Check Results Report (“criminal history”), his birth date is recorded as “09/01/1988”[10]. This would make the Applicant’s current age 37 years, turning 38 in January of next year. Yet the learned author of the decision under review noted the evidence around the two competing dates of birth of the Applicant comprising 9 January 1988 and 1 September 1987 and concluded as follows: “In the absence of probative evidence to the contrary, I accept the explanation provided by the applicant’s sister….After consideration of this explanation, in conjunction with the Australian Government issued Document for travel to Australia, I accept the applicant’s date of birth is 1 September 1987.”[11] This would mean the Applicant is currently 37 years of age, turning 38 on 1 September this year.
[10] R1, p 396.
[11] R1, p 499.
This differentiation of his age is of potential importance in terms of the specific offences this Tribunal can take into account for present purposes. It is important that this Tribunal disregards any conduct engaged in by the Applicant which were dealt with in the Children’s Court and which did not result in convictions. The High Court has made it clear that this conduct[12] cannot be taken into account for the purposes of determining the instant application.[13] Out of an abundance of caution, I will presume (and find) that the Applicant’s date of birth is 1 September 1987.
[12] Including any references to that conduct appearing in the material presently before the Tribunal.
[13] Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6.
His criminal history commences with three convictions in November 2004 at a Children’s Court in New South Wales (“NSW”) at which time the Applicant was aged 17 years. There followed a further four convictions at a Children’s Court in NSW in May 2006 at which time the Applicant was aged 18 years. The anomaly of an 18 year old being dealt with in a Children’s Court is not explained by the birth date of 9 January 1988 recorded in the criminal history. Adopting this date of birth would have made the Applicant 18 years of age at the time he was convicted of the four offences in May 2006.
Out of an over-abundance of caution, I will ignore and not take into account any of these first seven convictions appearing in the criminal history, nor will I take into account any reference to the conduct giving rise to those convictions that might appear in any of the material presently before me. Be that as it may, it is beyond argument that the Applicant’s convictions in a NSW District Court in October 2006 was a conviction imposed on him as an adult regardless of which of his two dates of birth one has regard to. Those particular convictions were for (1) Maliciously wound, for which a head custodial term of two years and six months was imposed with a non-parole period of one year and 11 months; and (2) Maliciously inflict grievous bodily harm, for which the Applicant received a head custodial term of three years with a non-parole period of two years.
Following these first two convictions as an adult, the Applicant proceeded to commit something in the order of over 130 additional offences during an offending span[14] (as an adult) commencing from October 2006 to December 2018, a period of some 12 years. This equates to something in the order of 10-11 offences for each year of offending. Put another way, the Applicant committed an offence for which he was convicted at the rate of almost one offence per month for the duration of his 12 year criminal history.
[14] I define the Applicant’s offending span by reference to the dates of his convictions as an adult as recorded in the criminal history.
This offending pattern came to the notice of the Respondent who, on 6 December 2017, cancelled the Applicant’s then-held Refugee (subclass 200) visa. The Applicant did not seek revocation of that cancellation decision. Instead, on 9 March 2018, he requested voluntary removal from Australia which saw him released from criminal custody for the term he was then serving and detained pursuant to s 189(1) of the Act on 12 April 2018. This request for voluntary removal was subsequently withdrawn on 10 May 2019. There followed the abovementioned application for a protection visa in December 2019.
Following the adverse outcome for the Applicant in the decision under review made on 8 July 2020, he applied to this Tribunal on 31 July 2020 seeking review of that decision. The delay in this application coming before the Tribunal for review was a result of its placement in abeyance due to a finding by a psychiatrist on 19 March 2021 who assessed the Applicant as lacking the necessary capacity to meaningfully engage with conduct of the instant proceeding due to his then-diagnosed schizophrenia. During this period of abeyance, the Applicant remained in immigration detention until November 2023.
Pursuant to the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (“NZYQ”), the Applicant was, on 25 November 2023, granted a bridging visa[15] and released into the community. With specific reference to the Applicant’s capacity to provide instructions and participate in the process of the instant application, Professor Patrick D. McGorry (psychiatrist) opined on 2 August 2024 that: “On the basis of today’s assessment and other material provided to me I am able to confirm that [the Applicant] is able to give instructions to his legal representatives in relation to various court and tribunal appearances. He is also able to participate in proposed hearings of applications before the tribunal.”[16]
[15] Specifically, a Bridging (Removal Pending) (Subclass 070) visa.
[16] A2.
To the best of my understanding of the submissions, neither party took issue with Professor McGorry’s findings and this application was set down for a video hearing before me on 3, 4 and 5 March 2025. At the commencement of the hearing, I sought and received the parties’ agreement to an Exhibit List which summarised and recorded the material into specific exhibits. Attached to these Reasons and marked Annexure A is a true and correct copy of that Exhibit List. The instant hearing also received oral evidence from (1) the Applicant; (2) his brother[17]; and (3) the consultant psychiatrist, Professor Suresh Sundram who is the Departmental Head of Psychiatry at the School of Clinical sciences at Monash University.
[17] Given the pseudonym allocated to the Applicant and for the additional purpose of protecting the Applicant’s identity, I will not name the Applicant’s brother in these Reasons. I will refer to him as “the Applicant’s brother” or “his brother” or another derivative phrase in which I refer to the Applicant’s “brother”.
LEGISLATION
Ancillary provisions
Section 4(1) of the Act describes its object thus: ‘The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’ In terms of how the object of the Act is brought into practical effect, s 4 contains the following relevant provisions:
‘(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
…
(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.’
Section 29 of the Act provides that the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia, and/or remain in Australia. Pursuant to s 13 of the Act, a person who holds a visa is a lawful non-citizen. It follows that a person who does not hold a visa is, pursuant to s 14 of the Act, an unlawful non-citizen.
Until his release from detention in November 2023 pursuant to NZYQ, the Applicant was an unlawful non-citizen and has thus been held in immigration detention pursuant to section 189 of the Act. If the Applicant is not granted the visa he seeks, his capacity to remain in Australia will presumably depend on him being granted a renewed bridging visa. If he is not successful in the instant proceeding and the Respondent does not grant him a further bridging (or other) visa, he will be presumably liable to removal from Australia as soon as reasonably practicable.
Section 45 of the Act facilitates applications for visas. Section 46 of the Act stipulates the criteria for a valid visa application. Schedule 1 to the Migration Regulations 1994 (Cth) (‘Regulations’) sets out the specific ways in which a non-citizen applies for a visa of a given class[18]. Section 47 of the Act provides that the Minister must consider a valid application for a visa[19] and must not consider an application that is not a valid application.
[18] In this case, the Protection (subclass 866) (Class XA) visa.
[19] This has occurred via the decision under review made on 8 July 2020.
Briefly summarised, s 65 of the Act provides that, after considering a valid application for a visa, if the Minister is satisfied that:
(a) the health criteria (if any) for the grant of the visa have been satisfied; and
(b) the other criteria for the grant of the visa have been satisfied; and
(c) the grant of the visa is not prevented by other sections of the Act; and
(d) any visa application charge payable has been paid,
- the Minister is to grant the visa[20]. If not so satisfied, the Minister is to refuse to grant the visa[21].
[20] Section 65(1)(a) of the Act.
[21] Section 65(1)(b) of the Act.
If the Minister is minded to grant a visa, s 30 of the Act allows for the granting of both permanent and temporary visas. Section 31 of the Act further provides for specific classes within the respective categories of permanent and temporary visas. The specific classes of visas are also capable of prescription by regulations enabled by the Act.
With specific reference to protection visas, s 35A of the Act provides for two specific classes of such visas. They comprise (1) “permanent protection visas” pursuant to s 35A(2) of the Act and (2) “temporary protection visas” pursuant to s 35A(3) of the Act.
The grant of a protection visa requires an applicant to meet certain criteria. They are contained in s 36 of the Act and Schedule 2 to the Regulations.
Subsection 36(2) of section 36 of the Act relevantly provides:[22]
[22] The Applicant does not claim to engage either of ss 36(2)(b) or (c) – his immediate family members still hold subclass 202 Global Special Humanitarian visas (Exhibit T1, T2, page 17).
‘A criterion for a Protection visa is that the applicant for the visa is:
a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
…’
Given the language of these respective subsections to s 36(2) of the Act, I will refer to the specific criteria in s 36(2)(a) of the Act as the ‘Refugee’ criteria. I will refer to the specific criteria in s 36(2)(aa) of the Act as the ‘Complementary Protection’ criteria.
Most relevant provisions for present purposes

Most relevantly for present purposes is the criterion for the grant of a protection visa stipulated in s 36(1C)(b) of the Act. It provides:
‘A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
…
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.’
[My emphasis].
24.Section 36(2C)(b) largely mirrors s 36(1C), and relevantly provides:
‘A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
…
(b) the Minister considers, on reasonable grounds, that:
…
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.’
[My emphasis].
What constitutes a ‘particularly serious crime’?
To determine whether an offence constitutes a ‘a particularly serious crime’ for the purposes of ss 36(1C)(b) and 36(2C)(b), reference must be had to s 5M of the Act which provides:
‘For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) “a serious Australian offence”; or
(b) “a serious foreign offence”.’
The Respondent does not contend that the Applicant has committed a serious foreign offence. There is no reference to the commission of any such offence in the material presently before the Tribunal.
For an understanding of what constitutes a “serious Australian offence”, reference must be had to s 5 of the Act which relevantly provides:
‘serious Australian offence means an offence against a law in force in Australia, where:
(a)the offence:
(i)     involves violence against a person; or
(ii)    is a serious drug offence; or
(iii)   involves serious damage to property; or
(iv)   is an offence against section 197A or 197B (offences relating to immigration detention); and
(b)the offence is punishable by:
(i)     imprisonment for life; or
(ii)    imprisonment for a fixed term of not less than 3 years; or
(iii)   imprisonment for a maximum term of not less than 3 years.’
Assessing whether a person is a ‘danger to the Australian community.’
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions[23] or the exercise of those powers.[24]
[23] The Act, s 499(1)(a).
[24] Ibid, s 499(1)(b).
Section 499(2A) of the Act provides that a person or body having functions or powers under the Act must comply with a direction issued pursuant to s 499(1) of the Act. For present purposes, the relevant direction dates from 6 September 2017 at which time the Minister for Immigration and Border Protection[25] issued Ministerial Direction 75 – Refusal of Protection visas relying on ss 36(1C) and 36(2C)(b) (‘Direction 75’ or ‘MD 75’). It governs delegates of the Respondent Minister in the process of considering valid applications for Protection visas under section 47 of the Act and in the performance of their functions or the exercise of their powers pursuant to s 65 of the Act to grant or refuse to grant Protection visas.
[25] A previous title of the Respondent Minister in the instant application.

In determining whether a person constitutes a danger to the community of Australia guidance is to be found in the decision of a past Deputy President of this Tribunal in WKCG v Minister for Immigration and Citizenship [2009] AATA 512 (‘WKCG’). In that decision, Deputy President Tamberlin QC established a multi-component test for assessing whether a person constitutes a danger to the Australian community. The components of that test compel the following assessments:
(1) the seriousness and nature of the crimes committed, the length of the imposed, and any mitigating or aggravating circumstances;
(2) the criminal record in totality – including the extent and nature of any prior convictions and the period over which they took place;
(3) the risk of re-offending and recidivism and the likelihood of re-lapsing into crime; and
(4) any prospects of rehabilitation.[26]
31. In WKCG, Deputy President Tamberlin QC explained that whether a person is a danger to the Australian community is a question of fact and degree.[27] The learned Deputy President said the task for the Tribunal in answering this second question in s 36(1C)(b) is as follows:
‘The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.’
32. In DOB18 v Minister for Home Affairs [2019] FCAFC 63 (“DOB18”), Logan J explained that for s 36(1C)(b) to be made out, the Tribunal has to be satisfied that the Applicant ‘is and will into the indefinite future be a danger, not that the person once was a danger.’[28] Logan J further explained that danger ‘means present and serious risk.’[29] Beyond the factors identified in WKCG, I must also have regard to all substantial, clearly articulated and relevant contentions propounded by the parties[30].
The principles in Direction 75[31].
33. In considering an application for a protection visa, Direction 75 compels delegates to consider (1) whether an applicant meets the Refugee criteria in s 36(2)(a) of the Act; and (2) the Complementary Protection criteria in s 36(2)(aa) of the Act before considering the disqualifying criteria in ss 36(1C) and s 36(2C) of the Act or considering refusal on character grounds under s 501 of the Act.
[26] See WKCG para [26].
[27] See WKCG para [25].
[28] DOB18, para[75].
[29] Ibid, para [83].
[30] See generally LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17 25[31]–27[40] and the cases cited in those paragraphs.
[31] Ministerial Direction No 75 – Refusal of Protection visas relying on ss 36(1C) and 36(2C)(b), made under s 499 of the Act (on 6 September 2017), requires Departmental decision-makers to consider a Protection visa applicant’s refugee and complementary protection claims under ss 36(2)(a) and (aa) before considering any character or security concerns.
Direction 75 can be differentiated from other directions such as Ministerial Direction 110 because it (Direction 75) does not bind the Tribunal for the purposes of merits review. Additionally, directions made pursuant to s 499 of the Act do not personally bind the Respondent. Therefore, the operative effect of Direction 75 does not extend to compelling this Tribunal to undertake its own assessment of whether this Applicant meets the Refugee criteria or the Complementary Protection criteria as a necessary precursor to considering the extent to which the disqualifying criteria in ss 36(1C) and 36(2C) apply to this Applicant.[32]
[32] See discussion by Senior Member Furnell in WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 38 at [175]. See also discussion by Deputy President Boyle in RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123 at [76]–[78] and HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392 at [151]–[153].
It is clear from the decision under review that the delegate acted in accordance with Direction 75 and made the necessary assessment about whether the Applicant met the Refugee Criteria and the Complementary Protection criteria prior to considering the relevant disqualifying criteria located in ss 36(1C) and 36(2C) of the Act. In terms of the first part of the delegate’s analysis, the delegate was “….satisfied that [the Applicant] is a refugee as defined by s 5H(1) of the Act”[33] and that the Applicant satisfied the Refugee Criteria in s 36(2)(a) of the Act.
[33] R1, p 507.
There was a similarly favourable finding that the Applicant met the complementary protection criterion appearing in s 36(2)(aa) of the Act. The delegate was “….satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Eritrea, there is a real risk [the Applicant] will suffer significant harm.”[34] The delegate concluded that the Applicant “….is a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act.”[35]
[34] R1, p 509.
[35] R1, p 509.
In their respective submissions, neither party agitated the delegate’s findings in relation to either s 36(2)(a) or s 36(2)(aa) of the Act. Therefore, I will not predicate my findings about s 36(1C) of the Act on the basis of whether or not the Applicant satisfies the relevant criteria attaching to either of these elements.
LEGISLATIVE HISTORY OF SECTION 36(1C)
The enactment of s 36(1C) of the Act represented the legislative codification of Article 33(2) of the United Nations Convention Relating to the Status of Refugees. This Convention was adopted in 1951 and was, in turn, amended in 1967 by the Protocol Relating to the Status of Refugees (‘Refugees Convention’).
The relevant components of Article 33 of the Refugees Convention comprise, firstly, Article 33(1) which says:
‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’
And, secondly, Article 33(2) of the Refugees Convention which places limits on the extent to which a refugee can avail himself/herself of the grounds stipulated in Article 33(1):
‘The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.’
At the time of the tabling of s 36(1C) before the Parliament, the relevant Explanatory Memorandum to the amendment intended by the introduction of this section said the following:
‘The Government intends the codification of Article 33(2) of the Refugees Convention, which operates as an exception to the prohibition against refoulement, to make it clear that it is both appropriate and desirable for decision makers to consider this concept as part of the criteria for a protection visa. The statutory implementation of Article 33(2) of the Refugees Convention is through the new subsection 36(1C). Where a person is found to meet the definition of ‘refugee’ but does not meet the criterion under subsection 36(1C) they will be ineligible for grant of a Protection visa. This criterion is consistent with the ineligibility criteria under paragraph 36(2C)(b) in relation to the complementary protection provisions in the Migration Act.’[36]
[36] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, page 12.
The then-Minister’s Explanatory Statement noted that the introduction of s 36(1C) into the Act, created: ‘…a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention.’[37] The net effect of s 36(1C) is thus to replace the previous methodology of how a person was determined to be a refugee. Previously, such a determination was made by reference to the Refugees Convention. After the introduction of s 36(1C), that determination was able to be made without reliance on the Refugees Convention or any external interpretations of it.
[37] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, page 10.
The language appearing in, respectively, Articles 33(1) and (2) of the Refugees Convention requires a two-step determinative process when addressing the question of whether someone could be found to be a refugee. First, there had to be a determination of whether a person ‘has been convicted by final judgment of a particularly serious crime’. If the answer to that question is in the affirmative, a second determination must then be made about whether that person constitutes a danger to the community. An identical two-step approach now appears in s 36(1C) in the determination of whether a person is excluded from the grant of a protection visa.
OVERVIEW OF THE EVIDENCE
The evidence of the Applicant
The Applicant’s most recent statutory declaration appears in the material and was made on 18 September 2024.[38] He describes himself as “….not a very talkative person and I find legal proceedings difficult to engage with.”[39] In this statutory declaration the Applicant says he is “currently living”[40] with his mother. As will be noted from the following review of his oral evidence the Applicant has since moved out of his mother’s home and now lives with his brother. He makes reference to his engagement with the therapeutic process in these terms:
“I get help from Freddie at Mercy Health and some of the workers at Ermha365. Liem, from Life Without Barriers, used to take me to appointments. He was really good but left a while ago. The new guy is alright too, though I’ve forgotten his name.
The medical help I’ve gotten has been good for me. I feel better than when I came out in November last year. The voices in my head have calmed down and are easier to control. I used to get anxious, upset and confused when the voices in my head were going on. That really doesn’t happen anymore.”[41]
[38] A3, pp 1-2.
[39] A3, p 2, [2].
[40] A3, p 2, [3].
[41] A3, p 2, [4]-[5].
He does not recall much of his offending although he does recall that he “….used to be….in and out of jail.”[42] He adds that “I was never out for more than….a month and then I went back to prison.”[43] He attributes his pattern of offending to his abuse of alcohol. He notes “I used to drink alcohol everyday and that would get me in trouble.”[44] He further notes that “I drink a little bit now but don’t get as drunk as I used to. I’m not interested in it anymore and I know its dangerous to drink too much because it gets me in trouble. I don’t want to do that.”[45] In terms of his recidivist risk, he says “I’m doing my best not to offend….I just want to snap out of it. I want to change my life and move on with my life.”[46]
[42] A3, p 3, [8].
[43] A3, p 3, [8].
[44] A3, p 3, [9].
[45] A3, p 3, [11].
[46] A3 ,p 3, [12].
In this statutory declaration the Applicant refers to his early life and notes that when he “….was young, my life wasn’t easy. I saw a lot of bad things. It was tough for me. I think it effected me. It used to make me angry. I’m dealing with that now better than when I was younger.”[47] He refers to his schizophrenic symptoms and how he says he consumed alcohol to assuage those symptoms:
“The voices in my head started in around 2009 or 2011. I can’t quite remember but I was young when they started. I didn’t know what it was or that I could get help. I didn’t know I needed help. I feel better now I’m getting it. My life is more stable now.
I think I was drinking a lot as a way to deal with this. I used to stay out a lot, I would go outside an drink. If I wasn’t doing that I would be in jail.”[48]
[47] A3, p 3, [14].
[48] A3. p 3, [15]-[16].
In his oral evidence in chief at the instant hearing, the Applicant was initially not able to recall his abovementioned statutory declaration made in September 2024 but eventually recalled it and confirmed its contents to be still true and correct. Despite saying in his statutory declaration that he received help from Freddie at Mercy Health, in response to the question of what Freddie does for him, he responded with “nothing, just not much”. He spoke of receiving a depot injection for his schizophrenic symptoms once a fortnight. When asked about how he felt after receiving the depot injection, he said that he did not like it but that he nevertheless had to take it or that he would otherwise “end up in a mental hospital”.
He was asked about whether he was still hearing hallucinatory voices and he responded with “a little bit, not much”. His evidence was unclear and unconvincing about whether he had been hearing these voices less since he has been receiving the depot injections. In terms of residential arrangements, he told the instant hearing that he had been living with his mother and older brother. He agreed that both of them had tried to assist him with adjusting to life in the community by reminding him to attend his medical appointments. He said that he currently resides with his older brother in outer suburban Melbourne and that this arrangement has commenced in the week prior to the instant hearing. He was asked about how he has been spending his time in the community and he initially said that he didn’t know but then spoke about just watching movies.
He was taken to the portion in his abovementioned statutory declaration where he said “I drink a little bit now” and was asked what that meant in terms of the amount of alcohol he is consuming. He spoke (somewhat incoherently) of consuming alcohol once a week, then once a fortnight and then once every two weeks. He spoke of consuming one or two cans (he did not say what type of alcohol) during these current drinking phases. He said that he did not do very much at all since he has been living at his older brother’s residence and that he primarily watches television during his days. He was asked about when he last saw his mother and he responded with “yesterday”. He was not able to answer the question of how often he sees her
He told the hearing that he currently wears a monitoring device and that he is subject to a curfew which he readily recalled as 10:00PM to 6:00AM and that he has to be at his brother’s home at those times. He said at the instant hearing that he had notified the Respondent’s Department of his recent move to go and reside with his brother.
The Applicant also received questions by way of oral cross-examination. He was initially asked about why his abovementioned statutory declaration (made in September 2024) says that he was then residing at his mother’s house and that he now says he has gone to reside with his older brother. The Applicant said his mother compelled him to leave her house because the Applicant was smoking tobacco cigarettes and she did not want people smoking in her house. He was then asked about the portion of his statement where he says he finds participation in legal processes to be tiring and frustrating. He was asked why he held this view and he was not able to provide any sort of coherent answer.
His incoherency continued when asked about whether he understood the nature and purpose of the current proceedings. He was able to recall Freddie from Mercy Health but that Freddie only reminded him to get to his rehabilitative appointments but little else. Likewise with Ermha365 and Life Without Barriers, the Applicant was not able to recall what type of support they had provided to him and in fact said they did “nothing” for him. In terms of residential arrangements his spoke of having an aspiration to one day living on his own. He could recall his NZYQ release into the community towards the end of 2023. He could also recall that since his NZYQ release, he had been arrested for further offending but was not able to recall the nature of the charges other than to say, in very vague terms, that they related to his curfew and “some charges”. He was also able to recall that since his NZYQ release in November 2023, he has also spent some time in remand.
He was then asked about his substance usage. He was taken to the portion of his statutory declaration made in September last year where he said “I drink a little bit now” and to be able to recall that portion of his statement. He was then asked whether he had been using drugs at all. He responded with “I only smoke weed, a little bit of weed, that’s it.” He was clear in his evidence about the frequency of his marijuana usage which he said he smoked “yeah, nearly every day”. He denied taking methylamphetamine in the community.
There followed a question in cross-examination about why the Applicant now says he is more able to deal with the previous elements predisposing him to committing offences. The reason he gave was “well, because I think I’ve been in and out of jail”. He was then asked to provide examples of how he was now better dealing with those predispositive elements and he responded with “….I just take it easy with like drinking alcohol and drugs a little bit….”
He recalled attending a mental health hearing a couple of months before the instant hearing which culminated in the making of a community treatment order which compelled him to, amongst other things, receive a regular depot injection. He indicated in his evidence that he did not like receiving the depot injection because he thought it made him gain weight and made him feel lazy and tired. He said that if he had a choice, he would now stop taking the depot injection. He was not able to articulate any benefit he was deriving from that injection but did tell the Tribunal that in the past he had refused to take it.
He was asked whether he was aware that when he had refused the depot injection in the past he had become aggressive and his evidence was unclear on this item. He could recall that he refused the depot injection during his time in immigration detention but that there has not been any such refusal since his post-NZYQ release into the community when living with his mother and now his brother.
He was taken to his admission into a mental health care institution following his NZYQ release and was not able to articulate precisely when that admission occurred, nor could he articulate why he was placed into this institution. He was not able to articulate with any certainty any response to the question of whether he thought he had a mental a mental illness and was not able to name the mental illness with which he has been diagnosed. He was not able to recall or explain the impact of his psychopathological symptoms on his conduct and could not provide a reason about why he is required to regularly receive a depot injection other than to say “because I have to take it”.
He spoke of “sometimes” going to church but could not recall where it was located. He confirmed that he is not involved in any course of study and is not engaged in any form of remunerative employment or other form of work.
Evidence of the Applicant’s Brother
The most recent statement of the Applicant’s brother was made by way of statutory declaration made on 18 September 2024. This document relevantly appears in the material.[49] He describes his family as having “….always been quite close and we support each other.”[50] He lives in Brunswick, an inner-Melbourne suburb. He reports that “Our family has tried to get [the Applicant] settled in the community. We help him attend appointments with Mercy Health, Life Without Barriers, his lawyers and others. My mother will generally always go with [the Applicant] to and from appointments and tries to go to all of [the Applicant’s] doctors’ appointments.”[51]
[49] A3, pp 4-6.
[50] A3, p 4, [2].
[51] A3, p 4, [5].

He talks about trying “….to be there for [the Applicant]….”[52] He adds that their mother “….is there for [the Applicant] the most out of all of us. She does a lot of [sic] [the Applicant] and tries to help him a lot. She is very committed to him.”[53] The Applicant’s brother says [the Applicant] “….would be better in his own space. It’d be best if that was nearby us and my mum so we could support him.”[54] He is of the view that “The medical care [the Applicant] has received has really helped. There is a huge difference in [the Applicant] now compared to how he was when he first came out.”[55] He thinks that “If [the Applicant] continues on with his medical appointments it will help. It can only mean he will be happier here and there will be less risk of offending.”[56]
[52] A3, p 4, [6].
[53] A3, p 4, [7].
[54] A3, p 4, [11].
[55] A3, p 5, [12].
[56] A3, p 6, [23].
The Applicant’s brother then compares how the Applicant was in the past when he was committing his offences compared to how he is now. He put it in these terms:
“There is a big difference in him since the last time he was with us. He would be home for a few days, one or two weeks and then disappear again. There are a lot of changes in him now. His mental health condition is better and there are other things. He is calmer. He is getting help and support, but mostly it is a change in him. He is not the same person as he was.”[57]
[57] A3, p 6, [25].
He concludes his statement with noting the Applicant is “trying” to not re-offend: “I know [the Applicant] has committed a lot of offences in the past. His family is here for him though and we’re doing what we can to help. We all have our own lives but we’re getting though each day by day and I know he’s trying.”[58]
[58] A3, p 6, [26].
The Applicant’s brother also gave oral evidence in chief at the instant hearing. He was taken to his abovementioned statutory declaration made on 18 September 2024 and said that he recalled that document. He agreed that since making that statement, the Applicant had come to live with him. He thought the Applicant’s mental health was now a lot better than what it was. He confirmed that if their mother was not immediately available to assist with taking the Applicant to a medical appointment, he (the Applicant’s brother) would step in and assist. Since the Applicant has been staying with him, he said they pass their days watching YouTube videos or movies. He confirmed that the Applicant has been observing the terms of the curfew imposed on him
The Applicant’s brother was also cross-examined at the instant hearing. He was asked about what sort of support their mother provides for Applicant and he responded with “like sometimes she sends him with something to eat to come to my place.” He was taken to the part of his written statement where he suggests the Applicant would be better off living in his own space and asked why he held that opinion. He was not able to provide any sort of coherent or comprehensible answer to that question.
He was then taken to the portion of his statement where he notes there has been a big difference in the Applicant now compared to how he was when he was first released from immigration detention. He was specifically asked to define what he meant by the phrase “big difference.” It was very difficult to glean any coherent response to this question. He seemed to be saying that in the past the Applicant had been incoherently talking to himself but no longer does so. He also seemed to say that in the past the Applicant would have “body shakes” but that these are not occurring anymore.
He was then taken to the community treatment order compelling the Applicant to submit to regular depot injections. He was not able to explain any observed impact the depot injections were having on the Applicant other than to respond with “yep” to the question of whether he knew why the Applicant was required to receive these injections. He was then asked about the reference in his statement to knowing the Applicant has committed a lot of offences in the past. Despite saying this in his written statement, the Applicant’s brother was not able to say what type of offences the Applicant has committed and could only say he was aware the Applicant had gone to jail for that offending. He was vague, incoherent and unconvincing in response to a question of whether he had ever discussed the Applicant’s criminal charges with him.
Evidence of Professor Suresh Sundram
Professor Sundram is an eminently qualified consultant psychiatrist who is the Departmental Head of Psychiatry at the School of Clinical Sciences at Monash University. His report is dated 8 January 2025 and relevantly appears in the material.[59] Professor Sundram assessed the Applicant’s current mental health in these terms:
“[The Applicant] described a constellation of symptoms consistent with schizophrenia and synthetic THC[60] use. These included positive psychotic symptoms of auditory hallucinations and conceptual disorganisation; negative symptoms of poor motivation and volition, anhedonia (a lack of feeling pleasure) and social withdrawal; and general symptoms such as poor sleep, reduced interest and an absence of a sense of future.”[61]
[59] A4, pp 2-7. Note to Reader: Professor Sundram’s report contains a reference to “Annexure A” as well as “Appendix 1” that has 12 attachments. The material only contains the main body of Professor Sundram’s report which comprises six pages of single spaced typed material. I am satisfied that any reference to, or finding about, Professor Sundram’s findings by me are not compromised as a result of the absence of Annexure A or Appendix 1 with its 12 attachments. In any event, most, and perhaps all, of those attachments appear elsewhere in the material.
[60] Tetrahydrocannabinol – the psychoactive component of cannabis.
[61] A4, p 4, [7.1].
In his mental state examination of the Applicant, Professor Sundram noted “[The Applicant’s] thought stream was reduced and the form was possibly disorganised when trying to answer more complex questions….[The Applicant] described auditory hallucinations he experienced when not distracted by other people but was unable to elaborate beyond that they had been longstanding and somewhat distressing….[The Applicant] did acknowledge that he had a mental illness and that he was required to accept treatment but did not like the medicine and preferred not to take it.”[62]
[62] A4, pp 4-5, [8.5], [8.6] and [8.8].
In terms of a summary and opinion, Professor Sundram noted the following:
“[The Applicant] is a 37-year-old single man with a history of approximately ten years of poorly treated schizophrenia. This has been complicated by substance misuse with alcohol and synthetic THC. His treatment since release from immigration detention has been more consistent with the introduction of a community treatment order which compels adherence with treatment through the public mental health system. This has resulted in some stabilisation of his mental state…..
His mental state exhibits psychotic symptoms of auditory hallucinations which are somewhat troubling to him but not overpowering or compelling. He has conceptual disorganisation which impairs his ability to understand or to structure complex thoughts and to plan and execute sequences of actions and behaviours. His synthetic THC use is plausibly exacerbating these symptoms.”[63]
[63] A4, p 5, [9.1] and [9.2].
Professor Sundram then responded to specific questions put to him in the letter of engagement from the Applicant’s legal representatives. First, he was asked to define the risk of the Applicant committing further offences should he be allowed to remain in Australia. He responded in these terms:
“Given his history of offending behaviour and the impacts of his schizophrenia on his cognitive functioning, it is plausible that he will commit further offences irrespective of where he resides. This plausibility is based on his past and recent history of offending, his limited and precarious financial situation, his severe mental illness and his substance use. In particular, his schizophrenia has resulted in considerable cognitive impairment rendering him vulnerable to impulsive, poorly considered decision making. He is restricted in his ability to consider consequences of his actions and although able to articulate them if asked they are unlikely to influence decision-making contemporaneously. As such, [the Applicant] may well perpetrate impulsive opportunistic offending which is likely to be low grade and poorly planned potentially resulting in straightforward apprehension.”[64]
[My emphasis].
[64] A4, pp 5-6, [11.1].
Second, Professor Sundram was asked whether the Applicant poses a danger to the Australian community. Before going to the relevant portion of Professor Sundram’s report, it is important to note that in their letter of engagement/instruction, the Applicant’s representatives purported to define the phrase “is a danger to the Australian community”[65]. Professor Sundram responded to this second question in these terms:
“[The Applicant], as noted multiple times above, is a relatively typical patient with schizophrenia, substance misuse and offending behaviour. His offending behaviour has recently been impulsive and opportunistic. His schizophrenia and its treatment significantly impair his ability to undertake any more complex offending behaviour. As noted, the combination of his schizophrenia, the side effects from his antipsychotic medication and his ongoing synthetic THC use significantly compromise his high level cognitive functioning. This impairs his ability to plan and execute complex sequences of behaviour. [The Applicant] is unlikely to be able to plan and execute a criminal activity such as a burglary. Hence, any future offending is likely to be similar to what has recently occurred, that is impulsive and opportunistic without any real consideration of future impacts. This is consistent with his recent breaches of his monitoring conditions where although he recognises their potential future impacts he is unable to incorporate the weighting of this consideration into his immediate activity. The predicted pattern of future offending, namely impulsive, opportunistic and unplanned does not meet the definition of “danger” as described in your letter.”[66]
[My emphasis].
[65] See A4, pp 12-13.
[66] A4, p 6, [11.4].
Professor Sundram also provided oral evidence in chief to the instant hearing. He was taken to the portion of his report which refers to the plausibility of the Applicant committing further offences based on his past and recent history of offending. He was asked to explain his assessment of that risk and how such a risk might manifest. Professor Sundram said that someone like the Applicant who has a long history of offending behaviours is potentially likely, or plausibly likely, to commit another offence in the future. The learned Professor noted that the Applicant was a person who has committed a not-insignificant series of offences over a prolonged period and that if such a person did not receive the necessary rehabilitative treatment, the risk of that person re-offending would be comparatively high.
He was squarely asked whether he thought the Applicant is someone who may re-offend. Professor Sundram said that if the Applicant does not receive the necessary treatment, there is a plausible risk that the Applicant might engage in impulsive and opportunistic offending in the future. Professor Sundram was then taken to the community treatment order applying to the Applicant and asked whether the Applicant would represent a danger to the Australian community. The response was that if the Applicant were not subject to such an order, then some of the offending behaviours that have occurred in the past may well recur and as noted by the learned Professor, some of those behaviours included significant interpersonal violence which he regarded as dangerous behaviour. Conversely, he said that if the Applicant remained on a community treatment order and remained compliant with his depot injections, then the risk of him becoming again involved in dangerous behaviour is significantly reduced.
With particular reference to the requirement for the Applicant to remain on anti-psychotic medication, Professor Sundram said the Applicant will need to be on such medication for most of the rest of his life. He said it might be possible that as the Applicant enters his old age, such medication might be reduced or even stopped. However, the learned Professor was clear that certainly for the foreseeable decades, the Applicant will need to be on this anti-psychotic medication. He said the principal question for the Applicant’s treating team is to assess when the Applicant has attained sufficient insight into the nature of his illness and the nature of his treatment such that he can authentically and with conviction comprehend that he needs that treatment. Professor Sundram said that when that point is reached, the treating team could start giving the Applicant oral medication while continuing with the long acting injectable depot medicine. Following that stage, Professor Sundram said that the treating team and the Applicant could form the view the he has demonstrated sufficient insight and observed sufficiently strict adherence with this treatment regime to then transition from the long acting injectable to oral medication.
Professor Sundram was asked for any views he may have had about the Applicant’s capacity to live alone. He was clear that when he reviewed the Applicant for the purposes of his report, he was not convinced the Applicant could live unassisted and that any such possibility would be dependant upon what level of social supports surrounded the Applicant if he moved into a scenario of unassisted living.
Professor Sundram was then taken to one of the seminal questions for present purposes involving whether the Applicant represented a danger to the Australian community. Specifically, this question was put to Professor Sundram on the basis of whether this opinion would change if the concept of danger was understood as a real and significant or possibility of the Applicant harming one or more members of the Australian community. Professor Sundram was clear: he said that his interpretation of the concept of danger (as put to him for the purposes of his report and for the purposes of his evidence in chief), has been that danger would be dependant upon whether this Applicant received the necessary treatment.
He noted the Applicant had been involved in episodes of significant interpersonal violence and that those episodes, as best as Professor Sundram could discern from the material provided to him, occurred when the Applicant was not receiving treatment for his schizophrenia or that such conduct predated the onset of schizophrenia. Further, Professor Sundram noted that if the Applicant ceased treatment and his schizophrenia was to relapse, the prospects of the Applicant representing a danger to the Australian community would increase significantly.
Professor Sundram was also cross-examined. He was asked about whether he was aware of the Applicant experiencing any history of auditory hallucinations prior to his diagnosis for schizophrenia in 2014. He said it is presumable that with the Applicant’s history of schizophrenia this may have been the case, but cannot say so definitively because he did not examine the Applicant at the time he was committing his offences.
Professor was then asked about his evidence in chief when he spoke about how the Applicant’s symptoms might remain present for the next 10, 20 or 30 years. He repeated that the negative and cognitive symptoms of patients with schizophrenic conditions like the Applicant tend to persist throughout the course of their illness. However, Professor Sundram said that there may be, at some point in the future, say, 10, 20 or 30 years or more into the future, a situation where the Applicant’s positive psychotic symptoms have ameliorated completely.
He was then taken to his evidence in chief about the nature of a community treatment order. He confirmed the Applicant probably did not provide consent for the imposition of such an order but that he was nevertheless deemed to be a risk to himself or others. He was asked to elaborate on the nature of that risk and he noted that it would have been based on the Applicant’s past offending history plus the fact that he was not consenting to treatment even though he was exhibiting significant psychotic phenomena warranting treatment.
Professor Sundram was then referred to paragraph 6.3 of his report where he records the Applicant “…appeared to be symptomatic likely related to daily synthetic….THC, the psychoactive component of (cannabis) use.” He was asked to explain what he meant by the term “symptomatic”. Professor Sundram explained this term on the basis of the belief that the Applicant did have ongoing psychotic symptoms and that while the totality of his psychotic symptoms had ameliorated from their level when the Applicant was untreated, the Applicant nevertheless still had some low grade auditory hallucinations. Further, Professor Sundram said the Applicant had a quite significant level of negative symptoms involving things like social withdrawal, a paucity of speech and the slowing of cognitive processes. He thought the Applicant’s presentation as “symptomatic” was a synthesis of the Applicant’s schizophrenia, the anti-psychotic medication he was taking and his use of synthetic cannabis (THC).
There followed a question about the distinction between the Applicant’s positive and negative schizophrenic symptoms and the impact of either group of those symptoms on his risk of re-offending. Professor Sundram said it was the positive symptoms that were driving the Applicant’s offending behaviour. He cited an example of this as the Applicant having auditory hallucinations, possibly of a commanding nature, having a malign effect on him and compelling him to respond in an unlawful way. Conversely, negative symptoms work in the opposite direction and tend to deprive people of the necessary motivation and volition to engage in conduct that could be unlawful.
Professor Sundram was then taken to paragraph 8.8 of his report wherein he states the Applicant (1) acknowledged having a mental illness and (2) accepted that he had to receive treatment for it but that he preferred not to take that medicinal treatment. Professor Sundram confirmed that although the Applicant did acknowledge or accept these two items, he was not able to identify his condition as schizophrenia or psychosis but that he was nevertheless compelled to take the medicine because this was compelled by the community treatment order. Professor Sundram thought that even though the Applicant did acknowledge having a mental illness, his opinion of the Applicant’s insight into his symptomatology was fairly limited and that the Applicant otherwise lacks considerable insight into his mental illness.
Next, Professor Sundram was taken to paragraph 9.2 of his report wherein he spoke of the Applicant’s auditory hallucinations and conceptual disorganisation. He was specifically taken to the concept of conceptual disorganisation and asked to explain its impact on the Applicant’s recidivist risk. He explained that conceptual organisation involves a scrambling of a person’s thoughts such that (1) they are not able to express a series of thoughts comprehensible to the average person; and (2) their ability to undertake even simple tasks is highly impaired. Professor Sundram gave the example of waking up in the morning and going to the shops to purchase essential items. He gave the further example of going to the bus stop, looking at a bus timetable and working out the appropriate time to catch the bus. He said that a person with conceptual disorganisation cannot safely or reliably do either of these things. He added that such a person would need assistance and/or significant training to do either of those things.

In terms of conceptual disorganisation’s impact on recidivist risk, he thought that someone as conceptually disorganised as the Applicant would be unable to conceptualise and execute a complex offending behaviour. Further, a person such as the Applicant would not be able to recognise the components of conduct necessary to be sequenced in order for a complex offending behaviour to be executed. In short, someone like the Applicant would, in the opinion of Professor Sundram, struggle with necessary pre-meditational thinking required to execute something as complex as a burglary. He thought any future offending by the Applicant would be spontaneous.
Finally, Professor Sundram noted and agreed he was a consultant psychiatrist and although he has had some training in forensic psychiatry, he would not claim that he was a trained forensic psychiatrist. He further confirmed that he did not use any actuarial professional assessment tool when formulating his opinion on the level of the Applicant’s recidivist risk and that he formulated that assessment based on his experience and training in other areas of psychiatry and psychology.
DISTILLATION OF THE ISSUES
For this Applicant to be eligible for the grant of the Protection visa, he must negotiate the following sections:
(a)Section 36(1A)(a): the Applicant must satisfy the following criteria:
(i)pursuant to sub-section (1B) that the Applicant has not been assessed by the Australian Security Intelligence Organisation as a direct or indirect risk to Australia’s security. The material contains no suggestion or assessment of the Applicant representing any such risk;
(ii)pursuant to sub-section (1C) that the Applicant is not a person whom the Respondent Minister considers, on reasonable grounds:
- pursuant to s 36(1C)(a) is a danger to Australia’s security. There is no contention before the Tribunal that the Applicant represents any such threat; or
- pursuant to s 36(1C)(b), having been convicted by a final judgement of a particularly serious crime, is a danger to the Australian community.
AND
(b)Section 36(1A)(b): for the grant of a Protection visa, the Applicant must satisfy one of the criteria in s 36(2). For present purposes, the material contains a Protection Visa Decision Assessment dated 8 July 2020 wherein a finding was made that the Applicant satisfies the criterion contained in s 36(2)(aa).[67] This Protection Visa Assessment dated 8 July 2020 also found adopted this Applicant was a refugee within the meaning of s 5H(1) of the Act.[68]
(c)Section 36(2C): provides that the Applicant is not taken to satisfy the complementary criterion assessment contained in s 36(2)(aa) if, inter alia, pursuant to s 36(2C)(b), the Minister considers on reasonable grounds that:
(i)the Applicant is a danger to Australia’s security; or
(ii)having been convicted by a final judgement of a particularly serious crime, the Applicant is a danger to the Australian community.
[67]R1, p 509.
[68] R1, p 507.
It will be noted that the two conditioning criteria in s 36(2C)(b) are substantially similar to those contained in s 36(1C). The only difference is that the second conditioning criterion in s 36(2C)(b)(ii) contains the words ‘…(including a crime that consists of the commission of a serious Australian offence or serious foreign offence)…’. There is no suggestion the Applicant has committed a serious foreign offence.
Therefore: (1) the same reply (and finding) I made for s 36(1C)(a) can be made for section 36(2C)(b)(i); and (2) the only residual issue for determination by this Tribunal is that contained in ss 36(1C)(b) and 36(2C)(b)(ii), namely, whether the Applicant, having been convicted by a final judgement of a particularly serious crime, is a danger to the Australian community.
In Australia, it is well-settled that there are two separate sub-questions raised by s 36(1C)(b).[69] First, has the Applicant been convicted by a final judgment of a particularly serious crime? Second, if the first question is answered in the affirmative, does the Applicant represent a danger to the Australian community?
[69] See SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174 (‘SZOQQ’) [52] (Jagot and Barker JJ, Flick J agreeing at [28]) (set aside on different grounds: SZOQQ and Minister for Immigration and Border Protection (2013) 251 CLR 577); DOB18 and Minister for Home Affairs (2019) 269 FCR 636 (‘DOB18’) [49] (Logan J); WKCG and Minister for Immigration and Citizenship (2001) 110 ALD 434 (‘WKCG’) [29] (Deputy President Tamberlin QC).
The first question can be essentially interpreted as a jurisdictional fact. If there is one serious Australian offence, then the second question – whether the Applicant is a danger to the Australian community – arises for consideration.
I will consider each question in turn.
Sub-Issue 1: Has the Applicant been convicted by a final judgment of a serious crime?
This Applicant has a multiplicity of convictions for particularly serious crimes. Paragraph [28] of the Respondent’s SFIC[70] particularises four[71] offences of which the Applicant was respectively convicted (as an adult) in October 2006, January 2009, February 2015, May 2016 and November 2017. I am firstly satisfied that each of these convictions involve offending against a law in force in Australia where the offence involves violence against a person. I am secondly satisfied that these offences are punishable by either imprisonment for a fixed term of not less than three years or imprisonment for a maximum term of not less than three years. These offences therefore satisfy the definitional requirements of “serious Australian offence” contained in s 5 of the Act.
[70] R2, p 7, [28].
[71] Note to Reader: this group of five convictions involved two convictions for the same offence.
Section 5M of the Act relevantly provides: “For the purposes of the application of this Act…..paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of: (a) a serious Australian offence……” It can thus be safely and cumulatively found that the Applicant has been convicted by a final judgment of a particularly serious crime for the purposes of ss 36(1C)(b) and 36(2C)(b)(ii).
I will now turn to the second question contained in ss 36(1C)(b) and 36(2C)(b)(ii).
Sub-Issue 2: Whether the Applicant is a danger to the Australian community?
In SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174, the Full Court said 36(1C) of the Act does not facilitate a ‘balancing exercise’. I cannot, for example, weigh the consequences of refoulement for an applicant to the country of origin against whatever danger that applicant might pose to the Australian community:
‘[…] we see the language of Art 33(2), construed in the context of the Refugees Convention as a whole, as intractable. The ordinary meaning of Art 33(2) (subject to one matter) is clear. The benefit of the duty against refoulement in Art 33(1) cannot be claimed by a refugee if the circumstances specified in Art 33(2) are present. The structure and text of the provisions do not permit any balancing exercise.’[72]
[72]SZOQQ [49] (Jagot and Barker JJ), [27] (Flick J, agreeing).
For reasons that follow, I am of the view that an application of the four abovementioned considerations in WKCG to the instant facts necessarily results in a finding that this applicant represents a danger to the Australian community. This finding will be principally based on an application of the four assessments stipulated in WKCG even though this list is not exhaustive. The concept of “danger” should, for present purposes, carry its ordinary meaning. Danger should be regarded as a function of (1) probability and (2) consequence. In terms of the former, the Tribunal must determine whether there exists a sufficient risk, possibility or probability of harm. In terms of the latter, it is necessary to assess the consequential outcomes resulting from the danger, most usually comprising physical or psychological injury. When assessed together, the Federal Court has found these two concepts mean that the higher the probability of a person re-committing unlawful conduct, the less severe the consequences of that conduct might need to be for the purpose of assessing the extent to which that person now represents a danger to the Australian community.[73]
[73] DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550 at [106]-[107]; [109], [111], [114]. Cited with approval by the Fill Court in SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104.
I will now turn to a discussion of the four assessments appearing in WKCG.
The seriousness and nature of the crimes committed, the length of the sentences imposed, and any mitigating or aggravating circumstances.
I have earlier described, in quantifiable terms, the extent of the Applicant’s criminal history in this country.[74] There can be no cavilling with the proposition (and finding) that in terms of the extensive number of offences committed and the lengthy period of the unlawful conduct giving rise to it, the unlawful conduct giving rise to the Applicant’s criminal history is serious. In its SFIC, the Respondent has helpfully summarized the Applicant’s offending.[75] Much of the offending has involved the Applicant acting on an unprovoked and unilateral basis towards a victim.
[74] See [8] of these Reasons.
[75] See R1, [38], pp 10-12.
The conduct has involved the use of weapons such as a knife and a machete. It has also involved the administration of significant, and often extreme, personal violence on victims. It has ranged from stabbing a victim multiple times, multiple episodes of biting a victim, punching a victim, sometimes with multiple blows, spitting at a victim as well and making a threat to kill his parents. The Applicant’s unlawful conduct has also brought property damage into its orbit. It has seen him arbitrarily destroy or damage property involving smashing the front glass door of a property to commit a burglary, punching a wall and also smashing the windows and doors of a residence.
On just a cursory calculation, the Applicant’s offending (as an adult) has cumulatively attracted the imposition of something in the order of 13 years of head custodial time across a sentencing history running for a period of 12 years. For each year he offended (as an adult), sentencing Courts felt compelled to impose more than an equivalent period of head custodial time for his offending. His offending has been characterised by him having virtually no hesitation in deploying extreme physical means to achieve a desired outcome. I am hard-pressed to identify any mitigating circumstance around his offending. Perhaps the only mitigating factor is the fact that he entered his own plea of guilty to a number of the charges proffered against him thus obviating the expense of a taxpayer funded prosecution.
I reject any contention put on behalf of the Applicant to the effect that his untreated schizophrenia and polysubstance abuse issues should now be viewed as factors mitigating the severity of his offending. Any contention along the lines that “the schizophrenia made me do it” or “the drugs made me do it” carries little or no weight for present purposes. The community (at not inconsiderable expense) has made available to him defined and clinically supported regimes of treatment which he viewed more in the breach than in the observance. He thus has no moral basis on which to explain away his culpability for his serious unlawful conduct impacting so many victims and which has also consumed such an inordinate amount of the community’s policing, judicial sentencing and healthcare resources.
I am satisfied that each of (1) the nature and seriousness of the Applicant’s unlawful conduct, (2) the sheer weight and length of sentences imposed on him and (3) the virtual absence of any genuine mitigating circumstance(s) around his offending now render him a danger to the Australian community.
The Applicant’s criminal history as a whole
The 12 year period of the Applicant’s offending (as an adult) runs (in terms of sentencing dates) from mid 2006 until the end of 2018. Across that 12 year period, he recorded convictions in each of 2006, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017 and 2018. As mentioned earlier, the Applicant was compiling convictions at the rate of one conviction per month for each of the 12 years of his offending as an adult. As noted by the Respondent’s representative during closing submissions, this pattern of prolific offending only ceased in 2018 when he was taken into prison and then immigration detention. Until then, the Applicant simply could not stop offending. Despite the best efforts of judicial sentencing officers who applied progressively more severe sentences on him, the Applicant was not deterred from offending. Only his physical removal from the community stopped him from offending.
I am comfortably satisfied that the Applicant’s pattern of offending has resulted in at least a serious, more likely very serious, criminal history. At the core of this prolific offending is an unresolved history of polysubstance abuse. It has seen the Applicant commit some very violent offences where existential harm could quite conceivably have befallen a victim. There are both quantitative and qualitative dimensions to the danger represented by this Applicant. This qualitative dimension or spectrum is to be found in the relatively precarious state of the Applicant’s rehabilitation which gives rise to a plausible possibility of harm in the event he does re-offend. The qualitative spectrum of the danger he now presents derives from the convincing prospect that such further offending is very likely to result in physical or psychological harm to a victim.[76]
[76] DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550 at [106]-[107]; [109], [111], [114]. Cited with approval by the Fill Court in SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104.
I am therefore satisfied that when viewed as a whole, the Applicant’s criminal history as a whole strongly supports a finding that he is a danger to the community.
The risk of re-offending and recidivism and the likelihood of relapsing into crime
To my mind, the evidence points to this Applicant representing a significant risk of re-offending. His 12 year history of offending as an adult is substantial and can easily be found to have been serious, more likely very serious. It is a history characterised by a failure of present and available rehabilitative supports and familial supports to either curb or moderate his propensity to offend.
It was clear from the Applicant’s own evidence and from what he told Professor Sundram that he continues to consume alcohol and to smoke marijuana. The Applicant spoke of smoking marijuana “nearly every day” but unconvincingly sought to temper that evidence by saying “….I just take it easy with like drinking alcohol and drugs a little bit….”. While the Applicant sought to play down the levels of his current consumption of these substances, the undeniable reality is that they remain present in his life. This is a matter that directly speaks to his current recidivist risk and consequential profile of danger to the community given that they have been front and centre of his past offending.
In his report, Professor Sundram spoke of the “….constellation of symptoms….” present in the Applicant’s psychopathology “….consistent with schizophrenia THC [Tetrahydrocannabinol] use.” Professor Sundram thought these elements gave rise to positive psychotic hallucinations, conceptual disorganisation, social withdrawal and a reduced interest in the trajectory of his (the Applicant’s) life. Although Professor Sundram thought the Applicant’s psychotic symptoms of auditory hallucinations were present but not overpowering or compelling, he nevertheless thought the Applicant’s ongoing THC use will continue to impair his capacity to properly structure his thought processes and to moderate his behaviour. To my mind, a clinically observed incapacity to structure one’s thinking and moderate their behaviour clearly speaks to that person’s recidivist risk.
Another area of concern with reference to the Applicant’s current recidivist risk is the Applicant’s very limited insight into his schizophrenic symptomatology and how its impact on his capacity to regulate his behaviour now speaks to his recidivist risk. Professor Sundram found that the Applicant acknowledged having a mental illness and that he needed to take medicinal treatment for it but that he (the Applicant) preferred not to take that medicine. In his evidence, the Applicant acknowledged a reluctance to take the depot injection necessitated by the current community treatment order. He felt this injection made him gain weight and to feel lazy and tired. He could not articulate any benefit he had derived from this depot injection treatment.
The relevant community treatment order (“CTO”) was made on 11 July 2024.[77] The treating team responsible for the administration of the regime of treatment mandated by the CTO is led by the consultant psychiatrist, Dr Htike Oo. Dr Oo’s report appears in the material and is dated 2 January 2025.[78] In this report, Dr Oo tells the Applicant “…..you have expressed ambivalence about the ongoing need for you to take your prescribed anti-psychotic medication, as evidenced by your recent interview with your Treating Consultant Psychiatrist. You are accepting your depot injection but declining your oral Olanzapine prescribed. You believe you do not have a mental illness and that you are complying with your treatment regime as a condition of your bail / visa. You have occasionally expressed to stop your medication.”[79]
[77] See A3, pp 9-12.
[78] See A4, pp 16-22.
[79] A4, p 21.
The criticality around the Applicant remaining strictly compliant with his prescribed regime of treatment in order to manage his recidivist risk can be seen in Professor Sundram’s evidence about the longevity of these types of symptoms. Professor Sundram told the instant hearing that the Applicant’s symptoms may remain present for the next 10, 20 or 30 years. He thought that at some future point there may be an amelioration of those symptoms but he was very clear in saying that for present purposes, if the Applicant ceased treatment and his schizophrenia was to relapse, the prospects of the Applicant re-offending and representing a danger to the community would increase significantly.
There seems to be a paucity of evidence that this Applicant will remain consistently compliant with his regime of treatment across what is very likely to be a decades-long requirement that he do so. I am likewise not convinced that any treatment team or individual clinician does now, or will in future hold, sufficient sway over the Applicant to ensure he does so. This capacity to remain so compliant is critically relevant to this Applicant’s recidivist risk in circumstances where Professor Sundram makes it abundantly clear that failure to do so significantly raises the Applicant’s risk of re-offending and thus the danger he would present to the Australian community.
It is, I think, important to properly contextualise the opinion of Professor Sundram when he says the Applicant’s recidivist risk is significantly reduced if he remains compliant with a specified regime of treatment. Professor Sundram was not suggesting the Applicant would be completely immune from offending in such a scenario. He was clear that it is plausible the Applicant will commit further offences based on his past and recent history of offending, his straightened financial circumstances, his mental illness and his ongoing substance use. He thought that such future offending would manifest in “…..impulsive opportunistic offending which is likely to be low grade and poorly planned……”

Professor Sundram described this offending as unsophisticated offending that did not require much pre-planning or pre-meditational thinking as would be the case in the commission of, for example, a burglary. I reject any suggestion that this finding in any way positively speaks to the Applicant’s current recidivist risk. To my mind, the risk of Applicant’s commission of any unlawful similar or identical offences to those he has previously committed should now be found to be unacceptable and would safely ground a finding that he continues to represent a danger to the community. There is no requirement for the Applicant to conceive of and execute any form of complex offending for him to now be found to represent a danger to the community.
We are all too familiar with the often tragic outcomes resulting from impulsively committed “king hit” episodes of offending involving, for example, the taking of a victim’s purse or wallet or in response to a real or imagined threat resulting from an argument in a social context. There is nothing in the Applicant’s criminal history suggesting he could not commit such a basic offence again, especially in circumstances where there is less than strict compliance with his regime of treatment. This is why the recommission of any offending by this Applicant – be it “low grade” or sophisticated - should now be found to be unacceptable in terms of assessing the extent to which he represents a danger to the community.
All too often in cases requiring assessment of a person’s level of recidivist risk and resulting profile of danger they represent to the community, regard is had to the nature and extent of supports, both lay and clinical, around them that could be found to ameliorate that risk. The Applicant’s evidence to the instant hearing was characterised by a marked lack of any awareness of the nature and extent of the supports around him. He was not able to articulate the nature of support he received from his mother and brother other than to vaguely suggest they assisted him with attending medical or treatment appointments. He could not recall the names of clinicians or supportive people who were part of his treatment team. He could not recall the names of the clinics or institutions at which those clinicians or supportive people worked.
The evidence of the Applicant’s brother seemed generic, vague and ultimately unhelpful. In his written evidence (contained in a statement made on 18 September 2024), the brother spoke of the support both he and their mother provide to the Applicant in terms of getting him to appointments for treatment. He also spoke of their mother being “very committed” to the Applicant. At the time the brother made this statement, the Applicant was residing with their mother. Since he made this written statement, it appears the Applicant no longer resides with their mother who is said to removed him from her residence because of something as apparently innocuous as her disapproval of the Applicant’s habit of smoking cigarettes. It is both curious and unconvincing to suggest the mother would not allow the Applicant to reside with her for simply smoking tobacco in circumstances where she had previously acted as one of the Applicant’s major supports in the community.
Since the brother made his statement, the Applicant has come to reside with him. The brother said they spend their days watching YouTube videos or movies. In his oral evidence to the instant hearing, the brother suggested the Applicant would be better off living in his own space but was not able to provide any credible reason for holding that belief. This evidence is squarely at odds with the clinical opinion of Professor Sundram who was not convinced the Applicant could live unassisted and that any such possibility was dependant upon the extent of the supports around him. It is notable, I think, that the Applicant’s mother was not called to give oral evidence about the nature and extent of support she could now provide to the Applicant.
The unconvincing state of the evidence around the nature and extent of supports available to the Applicant is a matter that directly speaks to his current recidivist risk and consequential profile of danger to the community given the criticality of him remaining strictly compliant with a defined regime of rehabilitative treatment.
There is an acknowledgement from the Applicant that he has been recently charged with eight offences.[80] Those charges allege the commission of unlawful conduct by the Applicant during the period June – August, 2024 which is less than a year after his NZYQ release into the community in November 2023. The charges allege unlawful conduct in the realms of illicit drug possession, possession of a weapon without lawful excuse, robbery, stealing and four charges alleging dishonesty with a credit card. The eight charges were mentioned in a Magistrates Court in Victoria in late February shortly before commencement of the instant hearing.
[80] A5, pp 6-7, [19].
The contention put on behalf of the Applicant in relation to these new charges is in two parts. First, that unless these charges are proven or are otherwise resolved, the conduct to which they refer is of little or no relevance to this Tribunal’s present task. Second, that “…..even if these allegations are proven they are not illustrative of reoffending which would result in the Applicant being a ‘danger’ to the Australian community.”[81]
[81] A5, p 7, [20].
The Respondent’s position, as best as I understood it, is that although this Tribunal cannot take these eight new charges into account in any assessment of the whether the Applicant represents a danger to the community, the proffering of these new charges does not bode well for the Applicant’s prospects of abstaining from further offending in circumstances where those charges remain unresolved either at trial or by way of the Applicant’s own plea.
The Respondent’s further contention is that this Tribunal can take into account the evidence of what the Applicant told Professor Sundram about these new charges, specifically those relating to the four charges alleging dishonesty with a credit card. In both his evidence in chief and in cross-examination Professor Sundram made reference to the Applicant telling him about this alleged conduct.
In cross-examination, Professor Sundram said the Applicant told him that he saw someone withdrawing money from an ATM and that the Applicant approached the person and took money from that person. Professor Sundram also recalled the Applicant telling him that during this alleged incident he (the Applicant) saw either a credit card or a wallet on the ground and that he took either or both of those items. Professor Sundram recalled the Applicant provided this information in response to a question about whether there had been any further charges brought against him or whether he had committed any further offending behaviour beyond what appears in the criminal history.
My approach to these new charges will be as follows: (1) I will not take these new charges into account for the present purpose of assessing whether this Applicant is a danger to the Australian community; (2) I will observe that the proffering of these changes after the Applicant’s NZYQ release does not bode well for his prospects of abstaining from further offending more generally; and (3) more specifically, the proffering of these charges – in circumstances where the Applicant acknowledged (to Professor Sundram) commission of the specific conduct alleged in the four new offences relating to dishonesty with a credit card – very seriously undermines any suggestion of him being free from offending since his NZYQ return to the community in November 2023.
Any prospects of rehabilitation
The Respondent aptly refers to the Applicant’s prospects of rehabilitation as “uncertain”. I respectfully endorse that characterisation. The uncertainty derives from (1) the Applicant’s continued use of alcohol and marijuana while purporting to be subject to the rehabilitative regime of a CTO; (2) his stated reluctance to follow the stipulated regime of treatment which has been noted by both Professor Sundram as well as the treatment team responsible for administrative oversight of the CTO treatment regime; and (3) the paucity of his insight into (a) his mental health symptomatology and (b) the criticality of maintaining a strict observance of the CTO’s treatment regime aimed at bringing the predispositive factors behind his offending under some sort remedial management and control.
Some further items raised on behalf of the Applicant
There remain some residual issues raised on behalf of the Applicant either during oral closing submissions or in the Applicant’s written material. The first of those items comprised a referral to documents created during the Applicant’s time in immigration detention. These documents primarily related to the Applicant’s physical and mental health aetiology. The authors were predominantly clinicians or people working with clinicians. None of this material was concerned with (and none of those authors had expertise in) assessing the Applicant’s current or past recidivist risk nor the extent to which he now represents a danger to the Australian community. This item has no traction.
The second of those items involved a submission that the existence of a CTO comprised some sort of protective shield against the Applicant’s commission of further offences in the community. A CTO does no such thing. Its primary purpose is rehabilitative and in no way gives rise to any safe inference that the community is safer from the danger represented by this Applicant because he is subject to a CTO. The misconceived nature of this submission can be seen in the reality that this Applicant has been charged with offences while subject to a CTO. This item has no traction.
The third item is ancillary to the second. It invites the Tribunal to draw some type of positive inference about recidivist risk and danger to the community from the Applicant not being an inpatient for rehabilitative treatment purposes. The thrust of the submission, as I understood it, was that if the Applicant were a danger to the community he would have been, as it were, locked away in an institution and undertaken his treatment there rather than doing so in the broader community via a CTO. This contention is also misconceived because the legislative metric about whether a person is or is not subject to an inpatient treatment order relates to whether the Mental Health Tribunal is satisfied (to the necessary standard) that a person requiring treatment cannot receive that treatment in the community.[82] This item has no traction.
[82] See ss 143, 194, 195 and 196 of the Mental Health and Wellbeing Act 2022 (Vic).
The fourth item comprised a submission about a grant of bail to the Applicant. As best as I understood the submission, the Tribunal should draw a positive inference about the Applicant’s recidivist risk profile and the risk he represents to the community because a criminal Court afforded him bail. Decisions about a grant of bail are made pursuant to a separate legislative instrument. There is no evidence before the Tribunal about the factors or elements considered by the Court which granted the bail and the extent to which those factors or elements align with the factors to considered and applied by this Tribunal in determining this application. This item has no traction.
The fifth and final item appears in the Applicant’s submissions in reply.[83] It relates to the possibility of the Applicant being removed to Nauru if he does not secure the visa sought via this application. The thrust of the submission is that removal to Nauru would constitute a legal consequence necessary to be taken into account by this Tribunal. This submission is also misconceived and incorrect. The primary task of this Tribunal is to determine whether this Applicant is or is not a danger to the Australian community. Section 65 of the Act mandates that this is a discreet question to be answered in either the negative or affirmative.
[83] A1 [second document] “Applicant’s Submissions in Reply”, pp 7-6, [23].
In answering this question, the Tribunal is not exercising a discretionary power akin to determining a character matter pursuant to s 501CA of the Act. The question is whether the evidence points to whether this Applicant is or is not a danger to the community. There is no scope for looking at extraneous factors such as the legal consequences of an adverse outcome for the Applicant in this matter. In addition, there is nothing before the Tribunal pointing to any contemplated or pending decision by the Respondent Minister to remove the Applicant to Nauru (or anywhere else) if the Applicant does not receive the visa sought via this application. This item is entirely speculative and has no traction.
CONLCUSION
I have had regard to the totality of both the written and oral material presently before this Tribunal. I have sought to analyse the evidence with specific reference to the relevant considerations outlined in WKCG. I can reach no other finding than that there remains a significant level of risk of this Applicant seriously (and even very seriously) and violently re-offending if returned to the Australian community. I am therefore of the view (and I find) that he remains a danger to the Australian community.
The Applicant’s prospects of rehabilitation are uncertain. He is in the early stages of what Professor Sundram described as a very lengthy rehabilitative process that could run for decades. The Applicant is demonstratively a grudging and reluctant participant in that process. He lacks the insight to comprehend the consequences for his psychopathology if he does not fulsomely engage with that process. The Australian community has experienced the impact of this Applicant’s unlawful conduct committed (as an adult) between 2006 and 2018. The Australian community should not be compelled to further endure (and experience) the significantly serious outcomes resulting from his future unlawful conduct in this country. The visa he seeks will be denied to him.
DECISION
The Tribunal affirms the decision under review dated 8 July 2020 and finds that:
1)having been convicted of a particularly serious crime, the Applicant is a danger to the Australian community within the meaning of ss 36(1C)(b) and s 36(2C)(b)(ii) of the Act; and
2)the Applicant is not eligible for a Protection visa pursuant to s 36(1A) of the Act.

I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...................................[SGD]................................
Associate
Dated: 15 May 2025

Date(s) of hearing: 3 & 4 March, 2025

Counsel for the Applicant:
S. O’Connell Esq.,

Solicitors for the Applicant: Refugee Legal (Melbourne)

Solicitor for the Respondent:
Mr Adam Cunynghame (Special Counsel)

Sparke Helmore Lawyers

ANNEXURE A
EXHIBIT REGISTER

EXHIBIT DESCRIPTION OF EVIDENCE Party DATE OF DOCUMENT DATE RECEIVED

R1
Tribunal Bundle comprising:

1.     T-Documents

2.     Bundle of Medical Records

3.     Supplementary T-Documents

4.     Respondent’s SFIC

5.     Capacity Assessment

6.     Respondent’s Submissions

7.     Respondent’s Submissions – Future conduct

8.     Bundle – BVR Documents
Resp Various 13/03/2024

R2 Respondent’s SFIC Resp 14/10/2024 14/10/2024

R3 S 501 Supplementary G-Documents Resp Various 14/02/2025

A1 Applicant’s SFIC App’t 29/09/2024 29/09/2024

A2 Capacity Assessment: Prof P McGorry App’t 02/08/2024 09/08/2024

A3 Applicant’s Tender Bundle App’t Various 29/09/2024

A4 Applicant’s Supp’y Tender Bundle App’t Various 21/02/2025

A5 Applicant’s Submissions in Reply App’t 21/02/2025 21/02/2025

A6 Community Treatment Order App’t 11/07/2024 03/03/2025

A7 Corrections Victoria Sentence/Remand Report App’t 03/03/2025 03/03/2025

Date(s) of hearing:	3 & 4 March, 2025
Counsel for the Applicant:	S. O’Connell Esq.,
Solicitors for the Applicant:	Refugee Legal (Melbourne)
Solicitor for the Respondent:	Mr Adam Cunynghame (Special Counsel) Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	Party	DATE OF DOCUMENT	DATE RECEIVED
R1	Tribunal Bundle comprising: 1. T-Documents 2. Bundle of Medical Records 3. Supplementary T-Documents 4. Respondent’s SFIC 5. Capacity Assessment 6. Respondent’s Submissions 7. Respondent’s Submissions – Future conduct 8. Bundle – BVR Documents	Resp	Various	13/03/2024
R2	Respondent’s SFIC	Resp	14/10/2024	14/10/2024
R3	S 501 Supplementary G-Documents	Resp	Various	14/02/2025
A1	Applicant’s SFIC	App’t	29/09/2024	29/09/2024
A2	Capacity Assessment: Prof P McGorry	App’t	02/08/2024	09/08/2024
A3	Applicant’s Tender Bundle	App’t	Various	29/09/2024
A4	Applicant’s Supp’y Tender Bundle	App’t	Various	21/02/2025
A5	Applicant’s Submissions in Reply	App’t	21/02/2025	21/02/2025
A6	Community Treatment Order	App’t	11/07/2024	03/03/2025
A7	Corrections Victoria Sentence/Remand Report	App’t	03/03/2025	03/03/2025