ZRTY and Minister for Immigration and Multicultural Affairs (Migration)

ZRTY and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3359 (20 September 2024)
Division:GENERAL DIVISION
File Number: 2022/1264
Re:ZRTY
APPLICANT

AndMinister for Immigration and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member T Tavoularis
Date:20 September 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 7 February 2022 to not revoke the mandatory cancellation of the Applicant’s Class WC Subclass 030 Bridging C visa.
.................[SGD]....................
Senior Member T Tavoularis
Catchwords
MIGRATION – remittal- non-revocation of mandatory cancellation of a visa – failure to pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – risk of recidivism found to be high – nature and seriousness of criminal offending found to be very serious - where factors in favour of revocation outweighed by factors against revocation - Tribunal finding there is not another reason to revoke the mandatory cancellation decision - decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
Secondary Materials
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
REASONS FOR DECISION
Senior Member T Tavoularis
20 September 2024
INTRODUCTION

ZRTY (‘the Applicant’) is a 24-year-old citizen of Italy. He first arrived in Australia on

18 November 2018 when aged 18 years and four and a half months. His movement history confirms he has not left Australia since his initial arrival.[1] Since that initial arrival, the Applicant has been in Australia on a continuous basis. Including the time he has spent in either prison or immigration detention in Australia, he has spent about a quarter of his life here.
[1] R1, p 96.
PROCEDURAL HISTORY
The Applicant’s visa status in this country has transpired thus:
·18 November 2018: the Applicant arrived here with a Working Holiday visa (subclass TZ-417) visa;
·18 November 2019: the Applicant’s Working Holiday visa (subclass TZ-417) visa expired which rendered him an unlawful non-citizen;
·5 March 2020: he applied for an XA-866 (Permanent Protection) visa. This application was subsequently withdrawn;
·6 March 2020: he was granted a Class WC Subclass 030 Bridging C visa;
·31 August 2020: the Applicant was granted a further Class WC Subclass 030 Bridging Visa (Class WC) (‘the Visa’) with no change to the directions appearing in the first bridging visa;
·9 November 2020: the Applicant’s Visa (i.e. the immediately preceding second bridging visa) was mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’);[2]
·31 January 2022: the Applicant made representations seeking revocation of the mandatory cancellation decision;[3]
·7 February 2022: a delegate of the Minister for Immigration and Multicultural Affairs[4] (‘the Respondent’) decided, pursuant to section 501CA(4) of the Act, not to revoke the mandatory cancellation decision. For the purposes of these Reasons, I will refer to this non-revocation decision as the ‘Decision Under Review’;[5]
·16 February 2022: the Applicant applied to this Tribunal seeking review of the immediately preceding non-revocation decision made pursuant to section 501CA(4) of the Act;[6]
·27 April 2022: this matter was first ventilated before this Tribunal (differently constituted) whereby it was ordered that ‘….the reviewable decision be set aside and the matter be remitted to the Department for reconsideration’;[7]
·16 December 2022: following the Respondent’s application for judicial review of the Tribunal’s decision, the Federal Court (per Katzmann J) remitted the matter to the Tribunal for determination according to law.[8]
[2] R1, pp 103-109.
[3] R1, pp 565-574.
[4] Prior to 29 July 2024, the Respondent Minister’s portfolio was Minister for Immigration, Citizenship and Multicultural Affairs.
[5] R1, pp 18-45.
[6] R1, pp 9-13.
[7] R1, pp 1122-1132.
[8] R1, pp 1133-1156.
This proceeding therefore comprises the second ventilation of this application before this Tribunal. The evidence ventilated at the first hearing may be taken into consideration for present purposes. However, this second ventilation is a hearing de novo or a hearing anew. The Tribunal’s task is, by definition, a stand-alone merits-based review of the totality of the evidence adduced at the first ventilation in this Tribunal and now in this second one.
The instant hearing proceeded before me by video[9] on 8 and 9 August 2024 (‘the Hearing’). At the commencement of the Hearing the parties agreed that the Tribunal’s list of material should be consolidated into an agreed Exhibit List[10] which is attached to these Reasons and marked as ‘Annexure A’. This Hearing received oral evidence from:
·the Applicant;
·Ms FD, the Applicant’s mother; and
·Mr Tim Watson-Munro, Consultant Psychologist.
[9] That is to say, all parties appeared before the Tribunal by video including the Applicant plus the respective representatives and the witnesses, both lay and expert, who gave evidence on behalf of the Applicant. The Respondent did not adduce any evidence via a witness.
[10] Transcript, p 2, lines 13-44.
The previous ventilation of this matter was conducted under Ministerial Direction 90. It was superseded by Ministerial Direction 99 on 3 March 2023. On 7 June 2024 the Respondent signed a further new Ministerial Direction 110 which was stated to take effect on and from 21 June 2024. The instant ventilation before me was conducted during the currency of Ministerial Direction 110. I will therefore determine this second ventilation of this matter pursuant to Ministerial Direction 110.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by section 501CA(4)(a) of the Act. I am also satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to section 500(1)(ba) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
Does the Applicant pass the character test?
The Applicant does not pass the character test as a matter of law.[11] He was sentenced to an aggregate custodial term of imprisonment of 12 months on 24 September 2020.[12] This aggregate custodial term comfortably meets the respective threshold requirements appearing in section 501(6)(a) of the Act (‘substantial criminal record’) and section 501(7)(c) of the Act (‘sentenced to a term of imprisonment of 12 months or more’). Accordingly, the Applicant cannot rely on section 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[11] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[12] R1, pp 47-48.
Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa,[13] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 110 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 110’) has application.[14]
[13] Pursuant to section 501CA(4) of the Act.
[14] Direction No 110 commenced on 21 June 2024. It replaces Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offending: A summary
The Applicant’s offending history appears in the material.[15] In sentencing terms the history runs from September 2019 to May 2021, a period of just over two years. It involves the commission of some 13 offences[16] that were dealt with at four separate sentencing episodes[17]. In terms of offending modalities, the offending consists of the following:
[15] R1, pp 46-49.
[16] Note to reader: on 10 November 2019, the Applicant was dealt with in a Victorian court on a charge proferred as ‘THEFT’. See R1, p 43. The ‘Result’ appearing in the criminal history is put in these terms: ‘At the date of issue, this charge has not been determined by a court. This cannot be regarded as a finding of guilt against [the Applicant].’ See R1, p 43. I will therefore not take this entry in the criminal history into account in the assessment of the nature and seriousness of the Applicant’s offending.
Further note to reader: there is a sentencing event contained in the criminal history recorded as having occurred at the Shepparton Magistrates Court on 13/11/2019. Three proferred charges appear in the ‘Offence’ column. They are (1) ‘contravene a conduct condition of bail’; (2) ‘theft-from shop (shopsteal)’; and (3) ‘commit indictable offence whilst on bail’. See R1, p 43. In the ‘Results’ column there are recorded the following words: ‘Without conviction, Adjourned to 09/11/2020’. The criminal history does not have any subsequent entry for ‘09/11/2020’ that dealt with these three proferred charges and nor is it evident from anywhere else in the criminal history that these three proferred charges were ever dealt with or otherwise finalised. I will therefore not take these three proferred charged into account in the assessment of the nature and seriousness of the Applicant’s offending.
[17] See immediately preceding ‘Further note to reader’, which was part of the commentary for footnote 16.
·property offending (x3);
oconvicted on 16/09/2019;
oconvicted on 24/09/2020;
oconvicted on 20/05/2021;
·breach of lawfully made instrument (x5);
oconvicted on 16/09/2020) (x2);
oconvicted on 24/09/2020) (x3);
·offending against a person (x5);
oconvicted on 16/09/2020 (x2);
oconvicted on 24/09/2020 (x2);
oconvicted on 20/05/2021 (x1).
In terms of sentencing modalities, the Applicant’s criminal history confirms the following types of sentences have been imposed:
·fine (x1): in the sum of $600;
·Community Correction Order (x4): each put in the following terms: duration (commencing 16/09/2020 and concluding 15/06/2021) for a supervised period of nine months with the Applicant to undergo drug and alcohol counselling;
·imprisonment (x6): each such sentence put in the following terms: ‘Imprisonment (aggregate): 12 months, commencing 22/09/2020, concluding 21/09/2021. Non-parole period: 6 months commencing 22/09/2020, concluding 21/03/2021’.[18] The Applicant’s offending convicted on 24/09/2020 attracted six separate head sentences each of 12 months, thus giving rise to a cumulative period of head custodial time of 72 months or six years; and
·‘convicted and released immediately’ (x2)[19] each such sentence put in the following terms:: ‘…on entering recognisance self $1000 to be good behaviour for 12 months’.
[18] R1, pp 47-48.
[19] Pursuant to section 13 of the Crimes (Sentencing) Act 2005 (ACT).

As best as I understood the Applicant’s offending history (and the material more generally), the Applicant does not appear to have compiled a traffic history in this country.
Application of factors appearing at paragraph 8.1.1(1) of the Direction
The chapeau to paragraph 8.1.1(1)(a) of the Direction outlines the three categories of offences which are viewed ‘very seriously’ by the Australian Government and the Australian community. On 16 September 2020 the Bankstown Local Court convicted the Applicant of (1) one count of ‘Assault occasioning actual bodily harm’; (2) two counts of ‘Contravene prohibition/restriction in AVO (Domestic)’; and (3) one count of ‘Stalk/intimidate intend fear physical etc harm (domestic)’. The victim of each of the offences giving rise to these four convictions was his mother. The court imposed a uniform sentence for each conviction it the form of a Community Correction Order with a duration of nine months compelling the Applicant to undertake drug and alcohol counselling that was to be supervised the Community Corrections Service.
On 24 September 2020, the Sutherland Local Court convicted the Applicant of (1) three counts of ‘Contravene prohibition/restriction in AVO (Domestic)’; (2) one count of ‘destroy or damage property’; (3) one count of ‘Stalk/intimidate intend fear physical etc harm (domestic)’; and (4) one count of ‘Assault occasioning actual bodily harm’. For this offending the Court imposed an aggregate head custodial term of 12 months with a non-parole period of six months. The victim of the conduct giving rise to the six convictions was, once again, the Applicant’s mother.
I refer again to the chapeau to paragraph 8.1.1(1)(a) of the Direction which outlines the three categories of offences which are viewed ‘very seriously’ by the Australian Government and the Australian community. It suffices to say that this Applicant has committed at least one act of family violence against his mother. The auspices of paragraph 8.1.1(1)(a)(ii) and (iii) are squarely engaged such as to give rise to a finding that the nature of this Applicant’s criminal conduct has been very serious. I so find.
The chapeau to paragraph 8.1.1(1)(b) of the Direction outlines the range of conduct (without limitation) that is considered to be ‘serious’ by the Australian Government and the Australian community. The Applicant has not offended in the realm of either entering into or being a party to forced marriage.[20] Likewise, he has no convictions for any offending during his time in immigration detention.[21] To the best of my understanding of his offending history, none of it comprises conduct compelling a finding by me that he does not pass an aspect of the character test dependant on my opinion, as opposed to my earlier finding that he fails the character test as a matter of law.[22]
[20] Paragraph 8.1.1(1)(b)(i) of the Direction.
[21] Paragraph 8.1.1(1)(b)(iv) of the Direction.
[22] Paragraph 8.1.1(1)(b)(iii) of the Direction.
However, on 20 May 2021 the ACT Magistrates Court convicted the Applicant on one count of ‘common assault’.[23] This conviction arose from conduct perpetrated on 17 August 2019.[24] The relevant factual circumstances of that offending are recorded in a Statement of Facts document appearing in the material.[25] It seems clear that the Applicant’s conduct perpetrated on the police on 17 August 2019 and his subsequent conviction for that offence on 20 May 2021 falls squarely within the auspices of paragraph 8.1.1(1)(b)(ii) of the Direction such that his offending can now be found to be, at the very least, ‘serious’. I so find.
[23] See R1, p 41.
[24] R1, p 1005.
[25] R1, pp 1010-1011.
Paragraph 8.1.1(1)(c) of the Direction requires an examination of the sentences imposed on the Applicant as a guide for the assessment of a non-citizen’s offending. This paragraph contains precluded categories of sentences which I cannot take into account. Those categories relate to (1) crimes of a violent and/or of a sexual nature against women; (2) acts of family violence; and (3) crimes involving causing a person to enter into, or being a party to, a forced marriage. Having regard to the total of the four abovementioned sentencing episodes, I am precluded from taking into account the sentences imposed at the second and third of those sentencing episodes.
The sentence received at the first sentencing episode was a fine of $600 for a conviction on one count of ‘destroy or damage property (DV)’. It is not clear to me from the material whether the reference to ‘(DV)’ relates to an act of domestic violence. The sentence received at the second sentencing episode was the same sentence imposed on

20 May 2021 for respective convictions on counts of (1) ‘common assault’; and

(2) ‘burglary’. This sentence is recorded as ‘convicted and released immediately…on entering recognisance [of] $1000 to be of good behaviour for 12 months.’ Whether or not the fine of $600 is included in the list of non-precluded offences I cannot take into account for the purposes of this paragraph 8.1.1(1)(c) makes little difference in the overall scheme of things.
I will find that the sentences received by the Applicant for his non-precluded offending cause this paragraph 8.1.1(1)(c) of the Direction to only moderately militate in favour of any finding about the nature and seriousness of his offending.
Paragraph 8.1.1(1)(d) of the Direction looks for evidence about the impact of a

non-citizen’s offending on any victim and their family. The material speaks very loudly to the Applicant’s unlawful conduct towards his mother. It has been charged and convicted as (1) domestically violent conduct; (2) conduct that breaches an extant domestic violence order (‘DVO’); and (3) offending against the person of his mother. Even a cursory review of the factual circumstances of the Applicant’s unlawful conduct towards his mother compels a finding that the nature of his unlawful conduct in this country has been ‘very serious’. I will so find.
This finding can be only very slightly tempered by the reality of his mother now actively supporting the Applicant’s continued stay in this country. Be that as it may, the Applicant’s dreadful conduct towards his mother is now a matter of unalterable record. It is what it is. As such, applying that recorded conduct towards a finding about the nature of his conduct inevitably leads me to a conclusion that this paragraph 8.1.1(1)(d) of the Direction strongly militates in favour of a finding that the totality of his offending has been, at the least ‘serious’, more likely ‘very serious’. I so find.
Paragraph 8.1.1(1)(e) of the Direction looks at the frequency of a non-citizen’s offending and/or whether there is any trend of increasing seriousness. In terms of sentencing episodes, the Applicant’s offending history runs from September 2019 to May 2021. This is an offending period of about 21 months or just under two years. Despite its brevity, the offending has been intensely committed culminating in 13 convictions across its 21 month history. This is plainly frequent offending.
Is the offending demonstrative a trend of increasing seriousness? I think it is. For the first 12 months of the offending history, the Applicant only had a conviction for ‘Destroy or damage property (DV)’. Exactly 12 months after this first conviction, the Applicant found himself before lawful authority for sentencing on 16 September 2020 on two counts of contravening an extant DVO, one count of assault and one count of stalk or intimidate with an intention to cause fear of physical harm. All of this offending was committed against his mother. Less than a couple of weeks later, he was convicted for three breaches of a DVO, one count of destroy or damage property, one count stalk or intimidate with an intention to cause fear of physical harm and one count of assault occasioning bodily harm. Again, all of this offending was perpetrated against his mother. I am easily satisfied that his offending demonstrates a trend of increasing seriousness.
I am accordingly satisfied that there is both (1) a frequency to the Applicant’s offending; and (2) that it demonstrates a trend of increasing seriousness. This combined finding causes this paragraph 8.1.1(1)(e) to strongly militate in favour of a finding that the totality of this Applicant’s offending should now be found to be ‘very serious’.
Paragraph 8.1.1(1)(f) looks for any cumulative effects to be gleaned from the Applicant’s pattern of offending. I am satisfied that the material discloses four specific cumulative effects of this Applicant’s repeated offending:
·his offending demonstrates a failure to respect the personal rights of others in and to their own safety. His conduct gives the marked impression of a person with no compunction towards imposing himself in unwelcome and physical terms in a situation where he feels things may not be going his way. This compulsion towards violence manifested in violence visited upon his own mother and investigating Police;
·the Applicant puts a case to this Tribunal for the restoration of his Visa status. Yet that request does not contain evidence of any past submission or acceptance by him to the laws and regulations governing the community to which he seeks readmission. His offending indicates little or no respect for either a lawfully made instrument such as a DVO-compelling him to do or refrain from doing something. Of his 13 relevant convictions, five are for the contravention of an extant DVO. Similarly, he appears to have no respect for the lawful authority represented by Police as can be seen from his conduct giving rise to a conviction for common assault perpetrated against a Police Officer;
·the Applicant’s offending is indicative of a person who has no modicum of respect for the property rights of others. One of the cornerstones of the Australian community is the right to lawfully acquire property intended for the owner’s quiet use and enjoyment. Yet he has respective convictions for (1) Destroy or damage property; and (2) Burglary. It is difficult for this Tribunal to be convinced about any contention for restoration of this Applicant’s Visa status if they regard another person’s property as ‘fair game’ which can either be unlawfully taken, damaged or destroyed at the whim of this Applicant; and
·the Applicant first came here in November 2018. His offending runs from September 2019 until May 2021 and, on any reasonable view, the period of his offending plus the periods of time he has spent removed from the Australian community in either prison or immigration detention, have dominated his time here. One struggles to find any meaningful contribution he has made to the Australian community. On the contrary, his conduct has consumed more than its fair share of the community’s policing, judicial sentencing and custodial resources.
These four cumulative effects of the Applicant’s repeated offending cause this paragraph 8.1.1(1)(f) to strongly militate in favour of a finding that the totality of the Applicant’s offending should now be found to be ‘very serious’.
The Applicant has never left Australia since his initial arrival in November 2018. There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Respondent’s Department in, for example, an incoming passenger card. Paragraph 8.1.1(1)(g) should be put to one side and rendered neutral for present purposes. There is no evidence that the Applicant has re-offended following receipt of a warning about the consequences of such further offending on his Visa status to remain here. Paragraph 8.1.1(1)(h) should be put to one side and rendered neutral for present purposes. There is no evidence of him carrying any convictions for offences committed in another country. Paragraph 8.1.1(1)(i) should be put to one side and rendered neutral for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
There is a ready acceptance from the Applicant that his offending should be found to be ‘very serious’.[26] This contention is paralleled by an identical contention put on behalf of the Respondent.[27] Having applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence, I am safely led to the conclusion (and finding) that – consistent with the respective position of the parties - the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’. I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
[26] A4, p 1 [1].
[27] R4, p 11 [28].
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken);
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
While no court or tribunal could reasonably find that a non-citizen presently removed from the Australian community is entirely devoid of representing any degree of recidivist risk upon a return to that community, it is nevertheless well-established that the degree of risk which could be found to be acceptable is ‘inversely related’ to the likelihood of that

non-citizen re-offending together with any resulting harm as a result of such recidivism. At paragraph 8.1.2(1) the Direction stipulates that ‘Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.’ The abovementioned inverse relationship is defined by an assessment of (1) potential consequences of the non-citizen’s further offending; and (2) the recidivist resulting from restoration of that non-citizen’s visa status to remain here.
The Applicant’s unlawful conduct towards his mother is both appalling and very regrettable. It is conduct totally at odds with standards of behaviour - especially towards women - that is expected of members of the Australian community. I have a similar view of the Applicant’s dismissive attitude towards lawful authority represented by either a lawfully made document compelling him to do or refrain from doing something and with regard to his attitude to the role played by Police Officers in our community.
It is not at all a stretch of the evidence to suggest and find that his domestically violent conduct towards his mother could have resulted in very serious and even catastrophic outcomes for her. Similarly, further offending against lawful owners of property will result in materially measurable loss towards victims of such conduct. The commission of further unlawful conduct of whatever description compelling the intervention of investigating Police, the proffering of charges, the handing down of sentences resulting from convictions for those charges and the Applicant’s placement into criminal custody will again consume an inordinate amount of the community’s Policing, judicial sentencing and custodial resources.
I am comfortably satisfied that were the Applicant to re-commit his past offending, the nature of the harm it would cumulatively represent to either individual victims and the Australian community more generally would range from (1) undue consumption of the community’s law enforcement, judicial sentencing and custodial resources; (2) measurable material and/or economic harm; (3) psychological harm; (4) actual physical harm; and (5) quite conceivably, catastrophic harm.
I will also find, pursuant to paragraph 8.1.2(1) of the Direction, that the harm resulting from the Applicant’s recommission of offending is so serious that any risk of its recommission would be unacceptable to the Australian community. This is especially the case with regard to his offending convicted as ‘Assault occasioning actual bodily harm (committed against his mother)’, ‘Contravene…[DVO]’ and ‘Stalk/Intimidate intend fear physical etc harm (domestic)’.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The expert evidence of Mr Tim Watson-Munro, consultant psychologist
Mr Watson-Munro is a significantly experienced consultant psychologist who appears to have a clinical history dating back to 1978. He provided both oral and written evidence to the instant Hearing. His report is dated 7 December 2023 and appears in the material.[28] He was briefed with a substantial amount of material[29] including the remittal bundle comprising Exhibit R1 in the instant proceeding. This remittal bundle includes an array of medical records referrable to the Applicant. Mr Watson-Munro interviewed the Applicant via the Villawood Immigration Detention Centre’s telehealth facilities on 6 December 2023. He also spoke with the Applicant’s mother (Ms FD) on the following day, 7 December 2023.
[28] A5.
[29] A5, p 1, documents numbered 1-4 (inclusive).
Mr Watson-Munro took a detailed history from the Applicant noting the ‘non-existent’ relationship between the Applicant and his father in Italy. He records the Applicant telling him that his parents separated in 2013 when the Applicant was 15 years of age and that he went to live with his mother in Milan. Mr Watson-Munro records the Applicant telling him about witnessing the abusive and domestically violent relationship between his parents prior to their separation. The report notes that the Applicant was educated until he was about 17 years of age. For those final two years of his schooling, the Applicant resided with his father, with his mother having then relocated to Australia.
Mr Watson-Munro records that the Applicant became involved in negative peer groups after completing his schooling and then he eventually travelled to Australia in or about the following year in November 2018. The Applicant told Mr Watson-Munro of his engagement in remunerative employment in the hospitality industry for about two years in Australia.
Mr Watson-Munro recorded the Applicant telling him about a deterioration in his mental health symptoms. This crystallised into escalating symptoms of psychosis then, eventually, hospitalisation at the Liverpool Hospital Mental Care and the St. George Hospital.
Mr Watson-Munro records the Applicant telling him of suffering from ‘…severe headaches and then began experiencing auditory hallucinations, involving voices which would direct him what to do. As a consequence of these dynamics, he drifted into a pattern of criminal behaviour, which appears to have essentially related to domestic violence issues, against a backdrop of his mental illness.’[30]
[30] A5, p 4.

Mr Watson-Munro also took a drug, alcohol and psychological history from the Applicant. He noted the Applicant’s denial of any habitual pattern of illicit drug use in Australia. Specifically, the Applicant told him that he had only smoked cannabis in Australia ‘…only two or three occasions.’[31] Mr Watson-Munro also noted ‘…a history of amphetamine use, which inevitably would have exacerbated [the Applicant]’s underlying psychological and psychiatric symptoms.’[32] Mr Watson-Munro specifically noted that ‘In the present, [the Applicant] maintains he is drug free.’[33]
[31] A5, p 4.
[32] A5, p 4.
[33] A5, p 4.
The Applicant is recorded by Mr Watson-Munro as denying the extent of his past abuse of illicit substances. He told Mr Watson-Munro that his mother ‘…believed that he was using drugs but [the Applicant] maintains that his was never the case’.[34] According to
[34] A5, p 5.
[35] A5, p 5.
[36] A5, p 2.
Mr Watson-Munro’s report, the Applicant told him that ‘…if given the opportunity, he [the Applicant] will comply with his treatment referrable to medication, in addition to seeing a psychologist for supportive treatment.’[35] This treatment now received by the Applicant consists of psychotropic medication which is administered by depot injection. The Applicant told Mr Watson-Munro that this depot injection treatment ‘…has had a beneficial impact upon his reality testing and mood in general.’[36]
Be that as it may, the Applicant told Mr Watson-Munro that although he did not experience hallucinations in Italy ‘…he hears voices in Australia, advising that him that they want to kill him, adding “they play with your brain”’.[37] According to what the Applicant told Mr Watson-Munro, the depot injection medication facilitates a capacity in the Applicant to ignore those voices and that he has ‘stopped listening’[38] to them.
[37] A5, p 5.
[38] A5, p 5.
Mr Watson-Munro also had a discussion with the Applicant’s mother on
7 December 2023. He writes of her ‘…misunderstanding of the nature of [the Applicant]’s psychiatric illness…’[39] but that she has now resolved that misunderstanding. She told Mr Watson-Munro that the Applicant will reside with her if returned to the Australian community and that she will facilitate his compliance with a regime of medication and, in terms of meeting the basic requirements and exigencies of life, by assisting him to find remunerative employment. She told Mr Watson-Munro that:
‘..my son is not normal… I now understand that he was very sick…it will be very bad for me if he has to go to Italy…he needs to take his medicine every day and there is nothing for him in Italy… he is very sick mental health.’[40]
[39] A5, p 6.
[40] A5, p 7.
Mr Watson-Munro reviewed the material briefed to him and, in particular, made the following findings and/or observations about the IHMS[41] clinical records before him:
·[these records contain ‘…a background history of schizophrenia, which was diagnosed in 2019, with ongoing psychotropic medication involving Olanzapine since that time’];[42]
·‘I note in the case notes of November 2021, that [the Applicant] is on two anti-psychotic medications, with a background history of auditory hallucinations, involving female voices, commanding him to do things. I note from the IHMS file with reference to an examination on 6 October 2022, [the Applicant] has also been administered Paliperidone (150mg by way of depot injection)’;[43]
·‘It is clear from these notes, that [the Applicant]’s at times is seriously ill from a mental health perspective and when appropriately medicated, his mood, behaviour and judgment are much improved. It would hence appear that compliance with medication has been a critical issue in terms of his overall treatment and management’;[44]
·‘I further note on 7 October 2022, an opinion that [the Applicant] was demonstrating drug seeking/use behaviour with an allegation that he was using ice. I note an acknowledgment of using ice by [the Applicant] in 2022;’[45]
·‘I note in the file notes of November 2022 that [the Applicant] has also been prescribed Valproate in the past.’[46]
[41] Denoting, ‘International Health and Medical Services’.
[42] A5, p 11.
[43] A5, p 11.
[44] A5, p 11.
[45] A5, p 12.
[46] A5, p 12.
In terms of a concluded opinion, Mr Watson-Munro opined the impact of past family violence perpetrated by the Applicant’s father is the source of the ‘…nexus with [the Applicant]’s behavioural disturbance and [the Applicant]’s tendency to self-medicate with illicit drugs.’[47] Mr Watson-Munro further opined that the Applicant’s ‘…substance use has impacted upon his judgment referrable to impulse control and consequential thinking and inevitably, it would have further exacerbated his underlying symptoms of schizophrenia.’[48]
[47] A5, p 13 [3].
[48] A5, p 13 [3].
Mr Watson-Munro further opined that the Applicant’s use of amphetamines during his time in Australia ‘…inevitably would have aggravated his psychiatric disorder referrable to perception, consequential thinking and impulse control.’[49] Noting the Applicant’s ‘…primary diagnosis of schizophrenia was made in 2019…’,[50] Mr Watson-Munro opined that the administration of Olanzapine and Paliperidone (150 mg) by way of depot injection has now resulted in the Applicant’s psychiatric state being ‘…now more stable as a consequence of him receiving consistent medication.’[51]
[49] A5, pp 13-14 [4].
[50] A5, p 14 [5].
[51] A5, p 14 [5].
Mr Watson-Munro identified certain protective factors against the Applicant’s recidivist risk which he put in these terms:
‘[The Applicant] is well aware of the parlous nature of his current situation, which is acting as a further protective factor in terms of reducing the risk of reoffending. He has insight to the dynamics surrounding his behaviour and attendant to this, the need for ongoing treatment. There are hence a number of protective factors in place inclusive of the support of his mother, a positive relationship which he enjoys with his sister, his ongoing consistency with medication compliance, his willingness to undertake treatment in the community, his expressions of remorse and the structure which living with his mother will provide for him on a daily basis. As noted, she is also highly motivated to ensure that [the Applicant] does not reoffend in any way.’[52]
[52] A5, p 14 [6].
Mr Watson-Munro opined that ‘The likelihood of [the Applicant] reoffending in the future will be reduced by actively engage in treatment inclusive of psychotropic medication, as well as seeing a psychologist in the community for supportive and motivational psychotherapy’.[53] Ultimately, Mr Watson-Munro assessed the Applicant’s recidivist risk in these terms: ‘I believe that the risk of him reoffending, subject to the protective factors and treatment remaining in place, his [sic] now trending from Medium to Low.’[54] [My emphasis].
[53] A5, p 15 [7].
[54] A5, p 15 [8].
As mentioned, Mr Watson-Munro also gave oral evidence to the instant Hearing. His cross-examination appeared to follow certain themes. First, Mr Watson-Munro was asked whether the Applicant’s psychopathological symptoms could have an impact on his memory and, in turn, whether this could now compromise or impugn the veracity of the information the Applicant was providing to him:
‘MR WATSON-MUNRO: I’m not a pharmacologist or a psychiatrist, but the literature certainly says that people can have adverse physical side effects from these drugs. They can have nausea; they can have a range of somatic symptoms and so on. So and these can prevail in some individuals as long as they take the medication. They may either adapt to it or the symptoms can be amplified.
MR KARP: Are you able to give an opinion as to whether there are alternative treatments that he could take?
MR WATSON-MUNRO: Well, look, this is, with respect, I think a matter for a treating psychiatrist but as I’ve articulated, he needs to take medication. Depot injections is the most reliable way for him to be compliant with his medication. It involves an injection once a fortnight or once a month. And in addition, he clearly requires psychotherapy. So supportive and motivational counselling, educational sessions about the perils of drug use and so on. In addition to acquiring specific skills focused upon developing relapse prevention strategies, in addition to learning how to cope with anxiety when it arises; how to re-frame problems so that he doesn’t act in an impulsive manner. But the issue of his psychotropic medication, I think, is a matter for a medical practitioner.’[55]
[55] Transcript, p 51, lines 29-47.
Second, Mr Watson-Munro was asked to comment whether the Applicant continues to suffer from an addiction to ice. His evidence was slightly equivocal on whether the Applicant was currently addicted to ice but he did agree that if the Applicant resumed an abusive relationship with that drug, his risk of reoffending would increase:
‘MR KARP: To what extent, in your opinion, is the environment in detention conducive to his behavioural problems in detention?
MR WATSON-MUNRO: Well, immigration detention is confinement. It’s not prison but the person’s deprived of their liberty. It’s a harsh environment to some, even those people who may be better psychiatrically and psychologically adjusted than this man. People that I’ve examined over the years say that it’s a difficult environment to exist in and those pressures are galvanised in a way because of most of these individuals having an uncertain future referrable to their capacity to remain in Australia. So they’re environments that are tense. They’re environments where there is confinement. It’s perhaps not as harsh and arduous as maximum-security jail, but nonetheless has similar dynamics to a prison, albeit being in an immigration detention centre.’[56]
[56] Transcript, p 52, lines 12-23.
Third
, Mr Watson-Munro was asked about the Applicant’s patchy history regarding attending all of his medical/treatment appointments and whether this had any bearing on the Applicant experiencing a relapse in his mental health. Mr Watson-Munro was clear that for this Applicant’s mental health symptoms to come under some sort of proper control, he needs to have regular and consistent treatment. This includes strict compliance with his regime of medication including receipt of his depot injections which

Mr Watson-Munro described as a positive prognostic indicator:
‘MR WATSON-MUNRO: Well, when I examined him eight months ago he appeared to be highly motivated. The relapses, I say I’d need to know more context about that. It doesn’t necessarily follow because of that that his motivation is less. It may have been, for example, that he used drugs because of escalated stressors surrounding his case, facing the prospect of deportation or remaining indefinitely in immigration detention and so on. I would need more clinical information, but certainly when I saw him, he was motivated to maintain treatment and he had insight, and he seemed to be progressing well in terms of smoothing over the dynamics with his mother, for example. (Indistinct) at that time was supportive of him, as is his sister – or as was his sister at that time.
MR KARP: Thank you. In his evidence, just to try to assist you a bit – his evidence yesterday was to the effect – and I stand to be corrected – was to the effect that he was taking drugs in detention out of a sense of boredom; that he had very little else to do. Does that assist you in giving an opinion as to his chances of recidivism?
MR WATSON- MUNRO: Well, he’s saying he took drugs because he was bored, basically. It speaks to the need for him to have structure during the day. If he was in the community, that should involve treatment, subject to his progress and treatment. Possibly part-time work. Structure with his mother, supervision by the family and so on, which would reduce the likelihood of boredom. But he also needs to be keeping away from adverse peer group dynamics, so if someone has provided him drugs in immigration detention he should keep away from those people in the interim.’[57]
[57] Transcript, p 52, lines 44-47; p 53, lines 1-22.
Fourth, Mr Watson-Munro was challenged about the currency of his risk assessment noting that the instant Hearing occurred in early August of this year and he consulted with the Applicant in early December last year which is also the date of his abovementioned report. It became clear that a continued opinion about a moderate to low risk assessment was, according to Mr Watson-Munro, contingent on a number of factors:
‘I think he’d struggle. And with medication, you know, he, you know, he struggles. He has a serious psychiatric disorder. It is away from the support of his mother and his sister. That would be difficult. I understand he has no immediate family members now in Italy. When I assessed him, his father had to be relocated to Morocco, but he maintains a fear of his father because of early childhood experiences of violence at his hands and so on. So he would have great difficulty. Whereas in Australia with support, there would be people who could organise medical appointments for him; could assist him in terms of obtaining benefits from income or a disability support pension and he would fare much better.’[58]
[58] Transcript, p 53, lines 36-45.
Fifth and finally, Mr Watson-Munro was asked about the absence of any of the usual psychometric testing having been performed by him on the Applicant. Given the absence of any such testing, Mr Watson-Munro was challenged about the basis of his assessment of the Applicant’s recidivist risk. He responded with this:
MR DULDIG: ‘Thank you. I notice you haven’t applied any sort of objective measures in terms of the sort of checklist that are available in terms of reoffending. In those circumstances, what is your conclusion as to risk of reoffending based on?
MR WATSON-MUNRO: It’s based on dynamic factors. I think if you looked at the static factors – so if you look at some of the risk assessment tools, they tend to use static and dynamic factors. Static factors alone provide a fairly troubling clinical history to date but where there’s room for him to improve is in the dynamic issues that I’ve described. They are: remaining drug free; complying with medication; having psychotherapy; and having the support of his family. So the dynamic factors are very important in this case. In the absence of those, particularly in terms of treatment and support, well, I’d be less optimistic about his prognosis. But the psychometric aspects were not undertaken because of his – you know, logistic considerations as much as anything that was – he was in immigration detention and was utilising (indistinct) techniques but the – the dynamic factors I described seem to be trending in a positive direction to him.
MR DULDIG: And you’ve assessed those dynamic factors based on the documentary evidence and your discussions with the applicant himself and with his mother? Is that right?
MR WATSON-MUNRO: That’s correct.
MR DULDIG: And obviously on your professional experience?
MR WATSON-MUNRO: That is correct.’[59]
[59] Transcript, p 54, lines 8-30.
The Applicant’s evidence
In his latest written statement, the Applicant confirms having been in Australia for only few months before being introduced to illicit drugs. He also confirms that after this initial introduction, he ‘…then started to use drugs about once a week’.[60] He describes his psychopathological symptoms in these terms: sometime after his introduction to illicit drugs, ‘…my mum heard me talking to myself and acting weird and forced me to go to hospital. At hospital I was given treatment. After I started treatment, I felt that I got worse. I did not feel comfortable with my family, friends or other people. I felt I could not trust anyone. I could not work and started hearing voices, seeing things and hearing people talking to me.’[61]
[60] A3, p 2 [6].
[61] A3, p 2 [6].
In terms of treatment he is presently receiving, the Applicant says ‘I am given one injection a fortnight in Villawood. The injections makes [sic] me feel sick. They give me a bit of a headache and I have to lay in bed for a while after I get them.’[62] In terms of further treatment, the Applicant goes on to say that ‘I feel that I would be better off in a hospital where I could be better treated and would be surrounded by Doctors who wanted to help me.’[63] His statement refers to possible admission to a residential treatment facility called Jeffery House. The Applicant says that his doctor told him Jeffrey House ‘… is a place where you can live and be given treatment and the sickness can leave you. I am keen to go to Jeffrey House because it is a place where I will be taking medication regularly.’[64]
[62] A3, p 2 [7].
[63] A3, p 2 [7].
[64] A3, p 2 [8].
The Applicant acknowledges that ‘…I am sick and that I have to have treatment. I just want to be in a place where I can focus on getting better.’[65] If returned to the community the Applicant wants to complete his course of residential treatment and then go and live with his mother and sister in Parramatta. In terms of future employment, he acknowledges that his mental health symptoms currently prevent him from engaging in remunerative employment, but once his symptoms are under control he would like to either work with his mother in the field of disability care or otherwise returning to work as a tiler.
[65] A3, p 2 [9].
The Applicant also gave oral evidence to the instant Hearing. During his evidence-in-chief his evidence seemed confused on whether he was able to grasp either the nature or extent of his mental health symptoms. The following passage from the transcript is indicative of this confusion:
‘MR KARP: Okay. So do you believe you have a mental health problem now?
INTERPRETER: No. A little. It’s because people made me get sick.
MR KARP: How do you say people made you get sick?
INTERPRETER: Because since I started hearing voices, I have the feeling that it is people talk to me also through the voices, but I can’t be sure about that. I’m not sure whether it is the people talking to me through the voices.
MR KARP: Okay. Do you think that people talking to you through the voices is a sign of mental illness, or not?
INTERPRETER: It seems to me that almost everyone here in Villawood hear the voices.
MR KARP: No. That wasn’t the question. The question was do you think that hearing voices is a sign of mental illness, or not?
INTERPRETER: I don’t think so. I don’t think so because it’s – it’s like a different thing. Well maybe it does have something to do with mental illness.’[66]
[66] Transcript, p 14, lines 25-46.
His evidence was similarly confused and unconvincing on the issue of whether he would engage with a regime of mental healthcare if returned to the community. It seemed that the Applicant did not have an adequate response to his past patchy involvement in any rehabilitative process:
‘MR KARP: And is that why you want to get better, or not?
INTERPRETER: Yes.
MR KARP: Okay. Is it your understanding that to get better you will need to see doctors and psychologists, or not?
INTERPRETER: Yes.
MR KARP: Okay. Are you prepared to see doctors and psychologists when they ask you to, or not?
INTERPRETER: Sometimes.
MR KARP: What do you mean by sometimes?
INTERPRETER: Sometimes they tell me to go and see a doctor, but sometimes I go, sometimes I don’t go.
MR KARP: Okay. If you get out of Villawood, would you go to see doctors or not, do you think?
INTERPRETER: Yes.
MR KARP: Now you just said that in Villawood you go to see doctors sometimes and sometimes you don’t. Why do you not go to see doctors all the time in Villawood?
INTERPRETER: Because I don’t feel ready to go.
MR KARP: Why don’t you feel ready to go?
INTERPRETER: Because I feel that the doctor is not treating me well.
MR KARP: Why do you think that?
INTERPRETER: Well, I want to feel better even when I’m there and I don’t go sometimes to the doctor because I am bored and I don’t – and I don’t feel like going, but I’m sure that when I come out, I will go to the doctor whenever they ask me to.
MR KARP: And why would it be different when you come out?
INTERPRETER: Because if I’m given another chance I want to demonstrate, I want to prove that I can stick to the rule that I’m good.’[67]
[67] Transcript, p 18, lines 29-46; p 19, lines 1-26.

The Applicant was also cross-examined. He was asked about the most recent occasion he took ice and said that it was about three weeks ago.[68] He was asked about the regularity of his ice use in immigration detention and he responded with ‘Yes. It is something that I do every now and then. Not always.’[69] He also said that he consumes ice in immigration detention ‘…to pass the time because there is nothing to do.’[70]
[68] Transcript, p 22, lines 35-37.
[69] Transcript, p 22, lines 42-43.
[70] Transcript, p 23, line 1.
He was also asked about the regularity of his attendance at rehabilitative appointments and he responded with ‘I go almost all the time.’[71] The Applicant’s evidence about the current state of his involvement with ice was muddled and unclear. He disagreed with his cross-examiner’s suggestion that he was addicted to that substance. He also purported to suggest that ice is not a strong drug and that it does not cause dependency or otherwise cause a person to become addicted to it:
[71] Transcript, p 23, line 41.
‘MR DULDIG: You said that you don’t think that you were addicted to ice. Is that right?
INTERPRETER: Yes. I was not dependent on it.
MR DULDIG: So, I think your mother thinks that the drug has been a problem for you. So, you disagree with her?
INTERPRETER: Yes. I agree with her.
MR DULDIG: So, you think it has caused you problems, but you don’t think you’re addicted to it. Is that what you’re saying?
INTERPRETER: Yes. I’m not addicted.
MR DULDIG: I think you also said that it’s not a serious drug. Is that what you said?
MR KARP: I object. That wasn’t the term that he used. It was, I’m trying to remember what it was.
MR DULDIG: Strong.
MR KARP: Not a strong drug.
MR DULDIG: Yes. Apologies. I misremembered. I’ll re-ask the question. You told my learned friend that it’s not a strong drug. Could you explain to the tribunal what you mean by that?
INTERPRETER: Well it doesn’t cause dependency to become addicted, and its effects are not strong.’[72]
[My emphasis]
[72] Transcript, p 24, lines 9-39.
The Applicant was cross-examined about his domestically violent conduct towards his mother which is such a dominant feature of his criminal history. He purported to suggest that his mother invented the story of his conduct towards her. This evidence should be rejected in its entirety:
‘MR DULDIG: Then there was an offence that occurred in 2020 where you demanded that your mother give you her mobile phone and you then pinned her against the bedroom wall. Firstly, do you remember that offence?
INTERPRETER: I didn’t touch my mother. She invented this story because she thought I had become dangerous.
MR DULDIG: Okay. So you don’t agree that you committed that offence?
INTERPRETER: That’s correct.
MR DULDIG: Do you remember that night?
INTERPRETER: Yes.
MR DULDIG: Were you under the influence of ice at the time?
INTERPRETER: No.
MR DULDIG: And were you hearing voices?
INTERPRETER: No.
MR DULDIG: If I suggest to you that you did touch your mother and you did assault her, because you were convicted of those offences, would you agree?
INTERPRETER: I remember that day. I didn’t touch my mother.’[73] [My emphasis]
[73] Transcript, p 25, lines 4-31.
The Applicant’s level of cognition and comprehension of his offending also appeared to be limited. He was taken to his offending in the ACT which saw him receive respective convictions for common assault (against a police officer) and burglary. He said that during his commission of these offences he was not under the influence of ice but that he ‘didn’t feel well’:
‘MR DULDIG: And do you agree that you got into a police chase and entered into another person’s house and then that you pushed a police officer?
INTERPRETER: Yes. I do remember.
MR DULDIG: Were you under the influence of ice when you committed that offence?
INTERPRETER: I didn’t feel well. I felt bad.
MR DULDIG: I asked whether you were under the influence of ice. So you weren’t under the influence of ice. Is that right?
INTERPRETER: Yes.’[74]
[74] Transcript, p 25, lines 46-47; p 26, lines 1-12.
He was asked about why he committed the burglary offence but in terms of explaining the offending, his evidence went no higher than him saying he did not commit this offence on purpose:
‘MR DULDIG: So why did you commit the burglary then?
INTERPRETER: I don’t know. It was a very bad day. That’s a – that’s for that.
MR DULDIG: Looking back on the offence now, do you think that it was a serious thing to do?
INTERPRETER: Yes. I think it was a bad offence, but I didn’t do it on purpose.
MR DULDIG: What do you mean you didn’t do it on purpose? What does that mean?
INTERPRETER: That I didn’t understand properly at the time.’[75]
[75] Transcript, p 26, lines 38-47; p 27, lines 1-5.
The Applicant was also asked about his conduct involving convictions for repeated breaches of an extant DVO. He spoke of not knowing that this type of conduct constituted a serious offence and that he sometimes felt remorse for committing these types of offences:
‘MR DULDIG: You also said that when you breached the AVO, you didn’t think that it was a serious order, but now you do. What’s changed between the breach and now, meaning that you now understand that it was the wrong thing to do?
INTERPRETER: Well, because when I did it, I didn’t think it was a serious thing, but now listening to the way people talk about it and describe it, and then I – seems to me that it is more serious than I thought at the time.
MR DULDIG: Do you feel remorse for breaching the AVO now?
INTERPRETER: Sometimes.’[76]
[76] Transcript, p 27, lines 7-18.
The Applicant’s evidence about a requirement that he remain engaged with rehabilitation was equivocal and indicative of someone who did not understand the criticality around his requirement to do so with particular reference to his recidivist risk:
‘MR DULDIG: So is it correct that you don’t think that you need any rehabilitation in relation to drug use?
INTERPRETER: I don’t know. If it is considered that the rehabilitation would be beneficial to me, then I will do it.
MR DULDIG: So if you were released into the community and, for example, your doctor told you that it would be good to do a particular course, do you think that you would do it?
INTERPRETER: Yes.
MR DULDIG: Do you think that the drugs that you were taking ever contributed to or caused you to commit any of your offences?
INTERPRETER: Sometimes.
MR DULDIG: So if that’s the case, don’t you think it would’ve been better not to do any drugs while you’ve been in Villawood?
INTERPRETER: I didn’t do it much, only sometimes.
MR DULDIG: But don’t you think it would’ve been better not to do it at all?
INTERPRETER: You’re right. Yes.’[77]
[My emphasis]
[77] Transcript, p 24, lines 25-47, p 25, line 1.
The Applicant initially disagreed with his cross-examiner’s suggestion that he should try and get some rehabilitation for his violent offending. Although his evidence eventually changed in this regard, it was evidence redolent of someone who is not yet fulsomely engaged in rehabilitation and who is yet to appreciate and understand the benefits he could derive from it:
‘MR DULDIG: Do you think it would be a good idea to try and get rehabilitation for violent offending?
INTERPRETER: No. I don’t think so.
MR DULDIG: If your doctor told you that it was a good idea, would you agree and seek rehabilitation?
INTERPRETER: Well, yes, if I was allowed to get out, I’ll do anything they ask me to do. I can’t take it any longer to be in here. I feel really bad.’[78]
[78] Transcript, p 31, lines 43-46; p 32, lines 1-5.
The evidence of the Applicant’s mother, Ms FD
The Applicant’s mother provided both oral and written evidence to the instant Hearing. One of her statements is dated 7 December 2023 and appears in the material.[79] Her written statement describes the unhappy and abusive relationship between her and the Applicant’s father culminating in her divorcing him and arriving in Australia on 18 April 2018. This written statement says that ‘When I came to Australia I left both [the Applicant] and [the Applicant’s] sister[80] behind. [The Applicant’s sister] was living with her boyfriend at that time and [the Applicant] stayed with his father.’[81]
[79] A6.
[80] The Applicant’s sister was born in April 1998 and is just over two years older than the Applicant.
[81] A6, p 1 [4].
Her written statement goes on to describe the Applicant’s limited work history in Australia and the circumstances in which she became aware of his psychological issues. The extent of those issues caused her to, on 10 February, 2023, obtain an order from the Public Guardian that she be appointed Guardian for the Applicant. Her statement says this order ‘lasts for two years and I have the power to decide where [the Applicant] can live and what treatment he can receive.’[82] In the event of the Applicant’s release, Ms FD says:
‘I will ask his psychiatrist at Villawood to recommend a mental health centre where [the Applicant] can stay and continue his treatment. When he is well enough to be released [the Applicant] will be able to come and live with me as there is a spare room that he can have as a bedroom.’[83]
[82] A6, p 3 [10].
[83] A6, p 3 [11].
She expresses confidence of being ‘…able to ensure that [the Applicant] takes his medication. I do not want what happened in the past to be repeated and I will notify the local mental health team if he starts not taking his medication.’[84]
[84] A6, p 3 [11].
In her most recent statement[85] she particularises her efforts in arranging for rehabilitation for the Applicant in the event of his return to the community:
‘13. Since making my last statement I have also contacted my local General Practitioner, Dr Raghdaa Ibrahim from the Excelsior Family Medial [sic] Centre in Guildford. She has told me 'I can give you a list of psychologists for you to contact as soon as we know when [the Applicant] is released'.
14. I have also contacted Lara MangelIi of Shire Psychology practice as she is an Italian speaking practitioner. The receptionist has told me that they can schedule appoints [sic] for [the Applicant] on 26 September at 2.00pm and 9 October and 6 November at 10.00am. Further appointments can then be made. I am working and am able to pay for these appointments.’[86]
[85] A9.
[86] A9, p 3 [13]-[14].
Ms FD also gave oral evidence to the instant Hearing. During cross-examination she was asked about whether the Applicant’s domestically violent conduct towards her caused her to fear for her own safety and she responded in the negative:
‘MR DULDIG: Yes. Some of your son’s crimes were committed against you, when you interact with him now, are there ever times where you fear for your own safety?
INTERPRETER: No. I am not afraid at all. I am not afraid at all. [The Applicant] before he was sick, and I was not aware of the illness. [The Applicant] has always been a kind person with me. [The Applicant] is not a bad person at all.’[87]
[87] Transcript, p 43, lines 6-12.
She was asked to identify changes in the Applicant that caused her not to be fearful of him having regard to his violent conduct towards her in the past. She responded with this:
‘MR DULDIG: And are there any particular changes that you can identify between those violent offences against you and now, meaning that you do not fear for your safety when you are with him?
INTERPRETER: He is very different, and I am very happy to see how he has changed. He is very different from before. He never responds in an angry manner now, he is always very kind when he talks to me, even if I am not talking kindly to him, he does not respond like that, he always responds very kindly. So I am very pleased to see how he has changed.’[88]
[88] Transcript, p 43, lines 14-22.
Finally, she agreed that the Applicant does require rehabilitation to address his drug addiction issues. She said that ‘When he gets out…I want to take him to a place so he can clean his body and get things done. I will help him do everything he has to do.’[89]
[89] Transcript, p 43, lines 28-30.
Analysis of the evidence around recidivist risk
As best as I understood the evidence, it speaks to the Applicant’s recidivist risk in the following terms:
·thus far, only incarceration has been effective in preventing the Applicant from reoffending: It seems the Applicant has been caused to cease his offending only by his forced removal form the Australian community. Non-custodial sentences and punishments in the form of a DVO, a fine or a Community Correction Order did not prevent him from reoffending. It should be noted that he initially arrived here in November 2018 and had committed his first offence a year after his arrival. Less than two years after his arrival he had committed (and been convicted for) an additional four offences before being incarcerated;
·the effectiveness of past drug and alcohol counselling: the Community Correction Order imposed on the Applicant on 16 September 2020 compelled him to undertake supervised counselling for his drug and alcohol issues for a period of nine months. Barely six days into this nine-month supervised counselling program, the Applicant re-offended;
·the past lack of interest in, and engagement with, rehabilitative efforts to manage his mental health issues: the material is consistently replete with failures by the Applicant to either fulsomely or at least consistently engage with rehabilitation. Concerningly, the material contains medical records and reports indicative of the following:
othe Applicant having ‘a poor understanding of his illness…[and a] high risk of relapse’;[90]
[90] R1, p 214.
othe Applicant having an ‘evasive history approaching denial of basic facts…’;[91]
[91] R1, p 501.
othe Applicant repeatedly failing to attend rehabilitative appointments and not being able to be contacted. For example, in a discharge report from the St. George hospital, it is noted that the Applicant ‘…has missed his depot [injection] and has not attended his last appointment. Telephone contact was attempted with no success.’[92] By way of further example, despite a notation in a Forensic Community Treatment Plan dated 3 December 2020 indicating the Applicant’s mental symptomatology improving with anti-psychotic treatment,[93] there is no evidence that he has subsequently engaged with either this or any other pattern of rehabilitative treatment defined in this particular treatment plan.
[92] R1, p 454.
[93] R1, p 237.
·whatever rehabilitative treatment the Applicant has patchily undertaken thus far has occurred during his time of removal from the community. His capacity to maintain a consistent pattern of engagement with rehabilitation in the much less regulated and less restrictive environment of the general community remains untested;
·the Applicant has a very problematic history of abusive and violent conduct while in immigration detention. In its SFIC[94], the Respondent has helpfully particularised this conduct and appropriately referenced it in the material.[95]The material is also replete with documents recording well in excess of 100 incidents involving the Applicant exhibiting untoward or problematic conduct in immigration detention. This conduct has included the following:
[94] Denoting ‘Statement of Facts, Issues and Contentions’.
[95] See R4, p 14 [34](e)(i)-(x).
othe uttering of threatening comments;
odisplays of verbally abusive and aggressive behaviour towards detention centre staff;
oattempts to assault and actual assaults upon detainees and otherwise behaving in a threatening way towards those detainees;
osexually inappropriate behaviour, including masturbating in the presence of another detainee; and
oactual sexual assaults on other detainees or detention staff members;
oactual physical assaults on detention staff members;
obehaviour culminating in minor disturbances or property damage in the detention facility, including admissions of stealing property belonging to other detainees;
oentering restricted areas of the detention centre without permission;
·the cautious approach necessary for receipt of the evidence of the Applicant’s mother. To my mind, caution must be exercised in the manner in which this Tribunal receives and treats the evidence of Ms FD. She was powerless to prevent the Applicant’s past introduction and eventual addiction to illicit substances. She was also the victim of his most serious offending. Yet she now adopts a position of a virtual guarantor of the Applicant’s compliance with and engagement in a pattern of rehabilitative treatment. Her evidence around the ‘changes’ she has noted in the Applicant is both unrealistic and unsubstantiated given that she has apparently noted these ‘changes’ during the Applicant’s incarceration. Her evidence about these ‘changes’ she has observed in him should not now displace the irrefutable evidence that in the past she has repeatedly expressed safety concerns about his behaviour towards her;
·the Applicant’s own evidence was both inconsistent and unreliable in a number of material respects:
oas recently three weeks before the instant Hearing, he had taken ice and also acknowledged it was something he did in immigration detention ‘every now and then’ as a means of being able to ‘pass the time because there is nothing to do’;
oin terms of the extent of his engagement with rehabilitative appointments in immigration detention he said ‘I go almost all the time’;
ohe denies any dependency or addiction towards ice. He does not regard it as a ‘strong drug’. And he thinks ‘…it doesn’t cause dependency to become addicted, and its effects are not strong’;
ohe has next to no insight into his domestically violent conduct towards his mother. He continues to deny this conduct that so predominantly features in his criminal history. He maintains a position of ‘I didn’t touch my mother’;
owhen asked to explain the motivating factors behind his offending he speaks of not having committed a particular offence ‘on purpose’ (in terms of the burglary offence) and that his repeated breaches of the extant DVO were committed on the basis that ‘I didn’t think it was a serious thing’. He added that he ‘sometimes’ feels remorse about the repeated breaches of the extant DVO;
operhaps most concerningly, he responded to the question of whether he thought he needed rehabilitation about his illicit drug issues with ‘I don’t know. If it is considered that the rehabilitation would be beneficial to me, then I will do it.’
·the limited value of Mr Watson-Munro’s report. To my mind, the veracity and reliability of the opinion of Mr Watson-Munro about recidivist risk should be tempered by the following factors that emerged in his cross-examination:
ohe accepted that the Applicant’s mental health symptoms did impact his memory and, in turn, that some of the things that the Applicant may have told him may not have been true or accurate;
oMr Watson-Munro was, to my mind, unrealistically coy about whether he thought the Applicant was currently addicted to ice. He accepted the Applicant’s past addiction to this illicit substance and eventually accepted that if the Applicant were to fall into a more habitual pattern of using ice in the future, it would increase the Applicant’s level of recidivist risk;
ohe accepted that the Applicant has a patchy history of engagement with rehabilitation and was asked to comment on whether this will have any bearing on the Applicant’s risk of a future mental health relapse. His response went no higher than what he described as the Applicant’s ‘…need to have supportive and motivational psychotherapy if returned to the community’;
ohe accepted that his opinion of a moderate to low recidivist risk was (at the time of the instant Hearing) some eight months old. He referred to having ‘…heard some recent evidence about [the Applicant] using drugs, which is concerning but I’d need to know more about it’. Mr Watson-Munro said that his moderate to low recidivist risk assessment was based on the Applicant ‘continuing with treatment, remaining drug-free, enjoying a structured environment, enjoying an ongoing and positive relationship with his family.’ Mr Watson-Munro conceded that if the Applicant ‘…was to relapse into drug use, clearly, my opinion [about recidivist risk] would alter’;
o
the stark reality for this Applicant is – with particular reference to

Mr Watson-Munro’s stipulated factors supporting a moderate to low recidivist risk-are either non-existed or can otherwise be impugned. This is because: (1) the Applicant has not continued with his treatment because his engagement with it has been patchy and unreliable; (2) the Applicant not remained drug free having used ice three weeks before the instant Hearing; (3) the only structured environment he has experienced for almost three years is either prison or immigration detention; and (4) he has barely, if ever, enjoyed a positive relationship with his family (primarily in the form of his mother) against whom he has committed his most serious domestically violent offending;
oI am of the view that Mr Watson-Munro’s findings should now be either impugned or rendered unreliable in circumstances where his own abovementioned four stipulated factors grounding his moderate to low recidivist risk assessment can now be seriously challenged. The only way to cure this deficiency in the evidence of Mr Watson-Munro is to obtain an updated report from him having regard to what the evidence now has to say about these four factors; and
oMr Watson-Munro did not apply any psychometric testing methodology or risk assessment tool(s) in relation to reaching a concluded view about the Applicant’s recidivist risk. Instead, he was satisfied that what he described as ‘dynamic factors’ could safely form the basis of his risk assessment. He spoke of ‘logistical considerations’ giving rise to a difficulty in applying the static factors represented by risk assessment tools. His identification and assessment of the dynamic factors was taken from (1) the documentary evidence briefed to him; (2) from his discussions from the Applicant and the Applicant’s mother; and (3) his professional experience.
Assessment of recidivist risk

Be that as it may I am mindful that Exhibit A18 in the material contains a photograph of the Applicant with a child, presumably the child of his sister. The provenance of this photograph was not the subject of any substantive submissions at the instant Hearing and there is little or nothing before the Tribunal about the kind of relationship the Applicant has had with this child. As mentioned earlier, the Applicant’s sister only arrived here in March 2023 (presumably with the subject child). This means the Applicant has been in immigration detention for the entirety of the child’s time in Australia.
Application of factors at paragraph 8.4(4) of the Direction
I am hard-pressed to find any favourable weight for the Applicant pursuant to the factors appearing at paragraph 8.4(4) of the Direction. There is no claimed or asserted durability in the relationship between the Applicant and this child and there have been long period of absence and limited meaningful contact between him and this child.[126] No submission is put to the Tribunal about any likelihood of the Applicant playing any sort of parental role in the child’s future.[127] We do not know about any extent to which his past conduct has impacted, or about any extent to which his future conduct may negatively impact, the subject child.[128]
[126] Paragraph 8.4(4)(a) of the Direction.
[127] Paragraph 8.4(4)(b) of the Direction.
[128] Paragraph 8.4(4)(c) of the Direction.
There is no submission or contention about any pattern of non-in-person contact between the Applicant and subject child and whether any such pattern of contact could be maintained in the event of his removal to Italy.[129] The subject child is primarily parented by the Applicant’s sister and there is no evidence of the Applicant playing any sort of adjunct or parental supportive-type role in the care of this child.[130] The views of the child about a removal of the Applicant to Italy are not known.[131] There is no evidence that the auspices of sub-paragraphs 8.4(4)(g)-(h) are engaged by the instant facts.
[129] Paragraph 8.4(4)(d) of the Direction.
[130] Paragraph 8.4(4)(e) of the Direction.
[131] Paragraph 8.4(4)(f) of the Direction.
Conclusion: Primary Consideration 4
Having regard to the miniscule level of evidence around the subject child, the highest level of weight this Tribunal could possibly allocate to that child’s best interests on the facts before me is ‘slight’. Accordingly, my finding will be that only a slight level of weight is allocable to this Primary Consideration 4 in favour of the Applicant.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[132] The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[133]
[132] Paragraph 8.5(3) of the Direction.
[133] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country which is evidenced by a significant number of breaches of the Australian criminal law. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[134]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[134] Paragraph 8.5(2) of the Direction.
The Applicant’s criminal history contains convictions that clearly fall within the auspices of the abovementioned sub-paragraphs 8.5(2)(a)[135], (c)[136] and (d)[137]. The commission of these offences (falling within the auspices of sub-paragraphs 8.5(2)(a), (c) and (d)) means that the Australian community expects the Australian Government can and should refuse to set aside the mandatory cancellation of his Visa.
[135] Acts of family violence.
[136] Commission of serious crimes against women.
[137] Commission of crimes against government officials (Police) in the performance of their duties.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(5), (6) and (7) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa (paragraph 5.2(5));
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time (paragraph 5.2(5));
(c)Australia may afford a higher level of tolerance towards criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age (paragraph 5.2(6));
(d)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen (paragraph 5.2(7)); and
(e)the inherent nature of the non-citizen’s conduct is so serious that it displaces even strong countervailing factors militating in favour of a positive visa outcome for a non-citizen even in circumstances where the non-citizen does not pose a measurable risk of harm to the Australian community (paragraph 5.2(8)).
In relation to sub-paragraph (a) of the immediately preceding paragraph [144], the term ‘limited stay visa’ is not defined in the Act. Upon initial arrival in Australia, the Applicant was granted a Working Holiday Visa (Subclass TZ 417). That visa expired on
18 November 2019. While on that visa, the Applicant offended and received his first conviction on 16 September 2019. He became an unlawful non-citizen upon expiry of this visa until 6 March 2020 when he was granted a Bridging Visa (Class WC). This visa expired and he was granted a further Bridging Visa (Class WC) on 31 August 2020. It is this second Bridging Visa (Class WC) that was mandatorily cancelled on
[138] See Transcript, p 58, lines 37-44.
[139] Regulations 417.511 and 030.511 of the Migration Regulations 1994 (Cth).
9 November 2020.[138] All of these visas held by the Applicant during his time in this country are limited stay visas.[139] Therefore, the Australian community has a low tolerance of this Applicant’s criminal or other serious conduct.
In relation to sub-paragraph (b) of the abovementioned paragraph [144], the Applicant has spent approximately six years in this country with three of them having been spent either in prison or immigration detention. He came here as an 18-year-old and is currently 24 years of age. He has spent about a quarter of his life in this country. The Applicant has a very limited work history in Australia having a short involvement with remunerative employment in the hospitality and construction industries as a waiter and tiler, respectively. The material seems silent about any identifiable community contributions. He has not fathered any biological children in Australia and is not involved in the care of any stepchild/ren in Australia. His participation in, and contribution to, the Australian community during his time here can be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is further lowered by this part of the principles in 5.2(5) of the Direction.
In relation to sub-paragraph(c) of the abovementioned paragraph [144], I repeat that the Applicant has, since his arrival in 2018, spent about a quarter of his life in Australia and that he has not been in Australia from a very young age. This means the Australian community may not afford a higher level of tolerance of criminal or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the abovementioned paragraph [144], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the very serious nature of his offending and its resulting harm thus far has been of such a serious magnitude as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (e) of the abovementioned paragraph [144], I am of the view that the Applicant’s domestically violent conduct towards his mother is so serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I have found that the Applicant represents a high risk of re-offending and that if he were to re-offend, the resulting harm to the Australian community is unacceptable. This means that the balance of the abovementioned sub-paragraph (e)[140] does not need ventilation here.
[140] That is, about whether the Applicant does not pose a measurable risk of causing physical harm to the Australian community.
Having regard to the above discussion around sub-paragraphs (a)–(e) (inclusive) referenced in paragraph [144] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very serious nature of the totality of his offending, this Primary Consideration 5 compels a finding that the community expects the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
I note that an adverse outcome for the Applicant in the instant application results in the specific consequence of him being irreversibly excluded from re-entering Australia. There are two further resulting consequences arising from this. First, the Applicant’s abovementioned irreversible exclusion from re-entering Australia is an issue that does not activate the terms of paragraph 9.1 of the Direction. As rightly conceded by the Applicant, ‘As [the Applicant]’s Protection Visa application has been withdrawn, no international consequences follow’[141].
[141] A2, p 8 [33]
If unsuccessful in the instant proceeding, section 501E of the Act prohibits the Applicant from making an application for another other visa, except for a protection visa.[142] To whatever extent the Applicant may claim that his removal to Italy would infringe Australia’s refoulement obligations, he will have an opportunity to ventilate those claims in the process of his application for a protection visa. For present purposes, I am thus not required to assess whether the Applicant’s removal engages Australia’s non-refoulement obligations.[143]
[142] See section 501E(2)(a) of the Act which allows the Applicant to apply for a protection visa.
[143] M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 [28]-[30].
Second, I note that the irreversible exclusion will likely give rise to additional personal consequences for the Applicant. Those consequences include (1) him experiencing emotional and psychological harm which is a factor that I will consider in the section of these Reasons relating to impediments the Applicant may face upon a forced return to Italy; and (2) his separation from immediate family and social ties he has to this country which are factors falling for consideration pursuant to paragraph 8.3 of the Direction.
Accordingly it would be unsafe to allocate any weight to any legal consequence of an adverse decision for the Applicant in the instant Hearing on the present state of evidence. Only neutral weight can be allocated to this Other Consideration (a).
Other Consideration (b): Extent of impediments if removed
What does the evidence say
During the Hearing the Applicant gave evidence in cross-examination about concerns he might have about returning to Italy. He spoke of anticipated difficulties around financially supporting himself and in relation to finding and retaining remunerative employment:
‘MR DULDIG: Thank you. If you had to return to Italy, do you have any particular concerns about what might happen to you?
INTERPRETER: Yes.
MR DULDIG: And what are your concerns?
INTERPRETER: That I would be going back poor, and I wouldn’t even have anything to eat. Like before.
MR DULDIG: Would you try and find work?
INTERPRETER: I don’t know. I’m sick.
MR DULDIG: Would you try and get help for your sickness?
INTERPRETER: Yes.’[144]
[144] Transcript, p 32, lines 36-46; p 33, lines 1-5.
In her written statement, the Applicant’s mother refers to her concerns arising from the possibility of the Applicant’s forced removal to Italy:
‘I am afraid for [the Applicant] if he has to return to Italy. He would have no where to live and would be living on the streets. If [the Applicant] is not treated he will be unable to work and he would have no one to help him with his medicine to make sure he takes it. He is incapable of doing normal things. This is not one thing that I have seen but is something that I have come to understand after talking to him on many occasions. I have been able to speak to [the Applicant] in prison using Zoom and I have also been able to speak to him in Villawood on the phone and sometimes using face time. I would not be able to go to Italy with [the Applicant]. I left my job to come to Australia and I have made a life here. I know that [Applicant’s sister] also wants to remain in Australia.’[145]
[145] A6, p 3 [12].
This written evidence had its echo in the mother’s oral evidence-in-chief to the instant Hearing:
‘MR KARP: Now you have also given evidence in your statement that you cannot go back to Italy, is that still the case or not? Before you go on, Mr Interpreter, I am sorry, I will amend the question. You have given evidence that you cannot go back to Italy permanently to take care of [the Applicant], is that still the case, or not?
INTERPRETER: Look, I love Australia, I love being here, and were I to go back to Italy with [the Applicant], we would both be on the street because there is nothing for us there, there is no work for me, and so no one to help us there. I do not have a family to go back to in Italy, there is nothing for us there. I love Australia, love to be here, I have done everything I could to be able to live here in Australia with my children.’[146]
[146] Transcript, p 39, lines 37-46; p 40, lines 1-2.
Likewise, in cross-examination she expressed similar concerns: ‘…I want him to be here…I do everything for him. I do not believe that in Italy there is anything for him and there is nobody that is going to help him.’[147]
[147] Transcript, p 43, lines 46-47; p 44, lines 1-2.
Factors to be taken into account
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): the Applicant is 24 years of age and does not seem to be suffering from any physical health milady. His Personal Circumstances Form (‘PCF’) says ‘…I suffer from mental health illnesses including schizophrenia.‘[148] for which he is currently medicated with Olanzapine. This diagnosis of schizophrenia has ample support in the material. I am satisfied that while the Applicant’s state of physical health will not impede his return and resettlement in Italy, it can be safely found that the state of his mental health will act as an impediment.
[148] R1, p 138.
Paragraph 9.2(1)(b): the Applicant lived the first 18 years of his life in Italy and completed his schooling and early adulthood there. Italy is a developed and advanced western European country with cultural norms and values broadly similar to those of Australia. I am satisfied there are no substantive language or cultural barriers impeding the Applicant’s return and resettlement in Italy.
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in Italy. First, with reference to any medical support the Applicant may try to source in Italy for his mental healthcare, I will firstly have regard to the respective positions of the parties. In the Applicant’s amended SFIC, it is contented that ‘The likelihood is that in Italy [the Applicant] would be lacking in familial support and remain drug dependent and become destitute. This is especially so given that he suffers from schizophrenia.’[149] This submission was, to an extent, developed during the Applicant’s oral closing submissions:
‘Now, if I can go back to Mr Watson-Munro’s evidence, and that is that the applicant would find it very difficult to deal with the process of obtaining mental health treatment in Italy without support. His mother’s evidence is that she cannot return to Italy, thus he would have no support. His mother couldn’t return to Italy, because she has nothing to go back for and her evidence was that they would both end up on the streets. The result is, whatever the quality of publicly available healthcare services in Italy, he’d be unable to access them almost certainly. The result would, inevitably, be destitution fuelled by schizophrenia and drugs.’[150]
[149] A2, p 8 [34].
[150] Transcript, p 58, lines 10-18.

The Respondent’s position on the issue of medical support available to the Applicant is put thus:
’71. In relation to the Applicant's health, the Respondent accepts that the Applicant is currently aged 24 and has a history of ongoing illicit drug use, resulting in drug-related mental health issues, and a diagnosis of schizophrenia. The Respondent accepts that the Applicant requires ongoing treatment for his mental illness. The Respondent further accepts that this is an impediment that the Applicant would face if returned to Italy or Morocco.
72. However, there is no evidence to suggest that the Italian mental health system would be inadequate to assist the Applicant, nor that it is anything less than directly comparable to that available in Australia. In these circumstances, although the impediments presented by the Applicant's mental health difficulties might weigh in favour of revocation, the weight attributable to those impediments should be minimal.’[151]
[Internal citations omitted]
[151] R4, p 21 [71]-[72].
The Respondent’s SFIC may not, with respect, be entirely accurate. There is evidence before the Tribunal about the Italian mental health system. There are two helpful articles in the material. The first of them[152] is current as at 30 May 2024. It stipulates that ‘Italy has one of the best healthcare systems in the world, ranking fourth for healthcare efficiency…in the European Union.’[153] This article provides a description to its reader about how to access mental health services in Italy. That description appears in these terms:
‘How to access mental health services
First, to publicly access mental health services in Italy, you must register with the Italian healthcare system. Afterward, you can choose your general practitioner (GP) and receive your (health card). If you wish to access free or affordable care from a psychologist or psychiatrist, you must request a referral from your or GP. However, your GP has the training to provide basic mental healthcare for less severe issues.’[154]
[152] A16
[153] A16, p 1.
[154] A16, p 5.
This same article then talks about the over-stretched nature of the Italian public mental healthcare system. It refers to it having ‘long wait times and limited spaces’.[155] This article also says ‘…the public system is overstretched, resulting in longer wait times. Out of 130,000 psychologists in Italy, only 5% work in the public healthcare system….’[156] According to this article mental healthcare treatment is easier to access if the patient has private health insurance because ‘…if you can afford it [i.e. private health insurance], it pays to seek help privately for the following reasons:
·Shorter waiting lists;
·A broader list of providers;
·More English-speaking mental health professionals;
·No referral needed.’[157]
[155] A16, p 8.
[156] A16, p 5.
[157] A16, p 8.
The second article in the material is dated 9 February 2024.[158] It describes additional difficulties in the accessing of mental healthcare including the stigma associated with mental illness in Italy:
‘Psychiatric patients in Italy face a series of obstacles in accessing appropriate healthcare services. According to recent data, only a small fraction of psychiatric patients receive adequate care, with long waiting times for specialist appointments and a shortage of resources in mental health services. Furthermore, the stigma associated with mental illness persists, often preventing patients from seeking help and accessing available services.
The families of psychiatric patients often find themselves facing a lack of adequate support. The shortage of home care services and support programs for informal caregivers puts a strain on families, who are left to face the challenges of managing the mental health conditions of their loved ones alone. This not only impacts the health of the patients but also the emotional and financial well-being of their families.’[159]
[158] A14.
[159] A14, p 2.
I am satisfied that the Applicant will confront difficulties in obtaining and affording any type of rehabilitative pattern of mental healthcare in Italy. Those difficulties derive from, firstly, the disorganisation of the Applicant’s own life as a result of his substance abuse issues and schizophrenia and any other mental health symptoms he may be experiencing. Secondly, it seems clear from the evidence that he needs the help, support and intervention of a third party to have any chance of becoming and remaining meaningfully involved in any regime of rehabilitative care. In Australia, that person is his mother, with some possible additional support from his sister. It is unlikely that he will have such a ‘support person’ in Italy. I therefore arrive at a conclusion that the Applicant’s difficulties in sourcing and maintaining medical support in Italy for treatment of his mental health issues is an impediment to his return and resettlement in that country.
Second, in terms of economic support available to the Applicant in Italy, it can be said that the Applicant does have some history of engagement with remunerative employment in Australia in retail hospitality and in construction (as a tiler). He is an able-bodied 24-year-old male and there seems to be no physical impediment to him at least applying himself, or trying to apply himself, to some kind of remunerative work in Italy. It should not be found that his mental health symptoms entirely displace his physical capacity to perform physical work for remuneration. To the extent he may require government benefits and assistance in the early phase of re-settling in Italy, he will have available to him the same government-type benefits/social security payments as would be generally available to other citizens of that country. Any lack of economic support in Italy will be a difficulty for the Applicant but not an insurmountable one.
Third, I will look at whether a lack of social support in Italy now presents as an impediment to his return and re-settlement there. The Applicant spent the first 18 years of his life in Italy. Once again, I think it can be safely found that even if people are carrying difficulties through their lives – such as a physical or mental health problem or a financial problem – it is very unlikely that those problems or burdens completely preclude a person’s capacity to establish a friendship or other relationship with a person or persons in that country. It is not an unfair application of the evidence to suggest that if removed to Italy, the Applicant should be able to make contact with someone in that country for support and guidance while resettling there. I accept that a relative lack of social support in Italy will be a difficulty for the Applicant but not an insurmountable one.
Findings about impediments
My findings about impediments are as follows:
·the Applicant’s age and state of physical health are not impediments to his return and resettlement in Italy;
·the Applicant’s state of mental health is an impediment to his return and resettlement in Italy;
·there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in Italy;
·the Applicant is likely to experience a significant impediment in the form of a difficulty to source, obtain and maintain medical support and care for his mental health symptoms in Italy;
·in terms of economic support in Italy, the Applicant may experience an initial impediment upon a return to Italy but that such impediment is not insurmountable impediment in terms of his return and re-settlement in that country; and
·in terms of social support in Italy, the Applicant may experience an initial impediment upon a return to Italy but that such impediment is not insurmountable impediment in terms of his return and re-settlement in that country.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, a heavy level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Other Consideration (c): Impact on Australian business interests
The SFICs of both parties contend that this Other Consideration has no application to the instant facts.[160] I agree and will allocate neutral weight to this Other Consideration (c) for present purposes.
[160] A2, p 8 [36]; R4, p 22 [76].
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of heavy weight in favour of revocation; and
(c)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: is of a very heavy, level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: is of a very heavy, level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 3: is of a moderately strong level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of a slight level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: is of a very heavy level of weight in favour of affirming the Decision Under Review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 plus Other Consideration (b) are outweighed by the combined respective very heavy weights I have allocated to Primary Considerations 1, 2 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 7 February 2022 to not revoke the mandatory cancellation of the Applicant’s Class WC Subclass 030 Bridging C visa.

I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis

.................[SGD].................
Associate
Dated: 20 September 2024

Dates of hearing: 8 and 9 August 2024

Counsel for the Applicant: Mr Leonard Karp (Chalfont Chambers)

Solicitor for the Applicant: Mr Alexander Grosart (Solicitor)

Legal Aid New South Wales

Solicitor for the Respondent: Mr Ingmar Duldig (Senior Associate)

Clayton Utz Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

RESPONDENT SUBMISSIONS

R1

Remittal bundle

Various

6 April 2023

R2

Supplementary bundle of materials

Various

28 July 2023

R3

Statement of Facts, Issues and Contentions (‘SFIC’) (based on MD-99)

23 November 2023

23 November 2023

R3

Amended SFIC (based on MD-110)

5 July 2024

5 July 2024

APPLICANT SUBMISSIONS

A1

SFIC (based on MD-99)

9 November 2023

9 November 2023

A2

Amended SFIC (based on MD-110)

20 June 2024

20 June 2024

A3

Statement from Applicant

7 December 2023

7 December 2023

A4

Reply to Respondent’s Amended SFIC

19 July 2024

19 July 2024

A5

Report by Mr Tim Munro (including Mr Munro’s CV and the two briefing letters)

Various

Various

A6.

[Signed] Statement from [Ms FD] (including Ms FD’s VEVO check details)

7 December 2023

7 December 2023

A7

[Signed] Supplementary statement from Ms FD

7 December 2023

7 December 2023

A8

[Signed] Statement from Ms FD signed 20 June 2024

20 June 2024

20 June 2024

A9

[Signed] Statement from Ms FD dated 5 August 2024

5 August 2024

5 August 2024

A10

[Signed] Statement from Ms AN

7 December 2023

7 December 2023

A11

[Unsigned] Statement from Mr AI

Undated

20 June 2024

A12

Guardianship Order from NCAT1

10 February 2023

20 June 2024

A13

Application for migration to Australia by a child and the sponsorship application

Undated

20 June 2024

A14

Article on addressing the challenges of the Italian Mental Health Care System

9 February 2024

20 June 2024

A15

Statement from Co.As.It

5 August 2024

5 August 2024

A16

Article from Mental healthcare in Italy

30 May 2024

5 August 2024

A17

The right to mental healthcare in Italian prisons: obligations of Italy under the AAAQ framework

21 February 2023

5 August 2024

A18

Photos(x2)

Undated

20 June 2024

[2024] AATA 3359

20 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Dates of hearing:	8 and 9 August 2024
Counsel for the Applicant:	Mr Leonard Karp (Chalfont Chambers)
Solicitor for the Applicant:	Mr Alexander Grosart (Solicitor)
Legal Aid New South Wales
Solicitor for the Respondent:	Mr Ingmar Duldig (Senior Associate)
Clayton Utz Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Remittal bundle	Various	6 April 2023
R2	Supplementary bundle of materials	Various	28 July 2023
R3	Statement of Facts, Issues and Contentions (‘SFIC’) (based on MD-99)	23 November 2023	23 November 2023
R3	Amended SFIC (based on MD-110)	5 July 2024	5 July 2024
APPLICANT SUBMISSIONS
A1	SFIC (based on MD-99)	9 November 2023	9 November 2023
A2	Amended SFIC (based on MD-110)	20 June 2024	20 June 2024
A3	Statement from Applicant	7 December 2023	7 December 2023
A4	Reply to Respondent’s Amended SFIC	19 July 2024	19 July 2024
A5	Report by Mr Tim Munro (including Mr Munro’s CV and the two briefing letters)	Various	Various
A6.	[Signed] Statement from [Ms FD] (including Ms FD’s VEVO check details)	7 December 2023	7 December 2023
A7	[Signed] Supplementary statement from Ms FD	7 December 2023	7 December 2023
A8	[Signed] Statement from Ms FD signed 20 June 2024	20 June 2024	20 June 2024
A9	[Signed] Statement from Ms FD dated 5 August 2024	5 August 2024	5 August 2024
A10	[Signed] Statement from Ms AN	7 December 2023	7 December 2023
A11	[Unsigned] Statement from Mr AI	Undated	20 June 2024
A12	Guardianship Order from NCAT1	10 February 2023	20 June 2024
A13	Application for migration to Australia by a child and the sponsorship application	Undated	20 June 2024
A14	Article on addressing the challenges of the Italian Mental Health Care System	9 February 2024	20 June 2024
A15	Statement from Co.As.It	5 August 2024	5 August 2024
A16	Article from Mental healthcare in Italy	30 May 2024	5 August 2024
A17	The right to mental healthcare in Italian prisons: obligations of Italy under the AAAQ framework	21 February 2023	5 August 2024
A18	Photos(x2)	Undated	20 June 2024