(a) the Minister reasonably suspects that the person does not pass the character test; and

(b) the person does not satisfy the Minister that the person passes the character test."

1. Section 501(6)(a) of the Act provides that a person does not pass the character test, if that a person has a "substantial criminal record (as defined by subsection (7)".
2. Section 501(7)(f) provides that a person has a "substantial criminal record" if

(i) been found by a court to not be fit to plead, in relation to an offence; and

(ii) the court has nonetheless found that on the evidence available the person committed the offence; and

(iii) as a result, the person has been detained in a facility or institution."

1. On 2 December 2021, Bampton J of the SA Supreme Court found that:

(a) The Applicant was mentally unfit to stand trial, and

(b) that the objective elements of the offence of murder were established beyond reasonable doubt.

(c) the Applicant should be detained under a supervision order.[3]

1. The Applicant has been, and continues to be, detained in a forensic mental health facility. Until recently, he was in "James Nash House".[4] He is now at Glenside.

1. I have considered submissions put on behalf of the Applicant, to the effect that the Respondent, and by necessary implication this Tribunal, lacks jurisdiction.
2. In summary, the Applicant says that "the Respondent has, ...., failed to show that the order made by the Supreme Court fits the requirements of s501(7)(f)(ii), namely a finding that the Applicant committed an offence."[5]
3. If this were so, it is argued, the Applicant would not have a "substantial criminal record" as defined, and there would, therefore, be no basis for a finding that he did not pass the character test.
4. Section 501(7) (f) (ii) does indeed use the phrase "committed an offence".
5. The Applicant submits in effect, that the Tribunal should interpret "committed an offence" as if it were synonymous with "conviction". The Applicant emphasised that the word "committed" was most significant.
6. It is common ground that the Applicant was not convicted of murder, due to his mental impairment, namely his underlying Paranoid Schizophrenia.[6]
7. There are, however, several reasons for rejecting the Applicants' submission.
8. Firstly, s501(7) (f) (i) refers to an Applicant who has "been found by a court to not be fit to plead, in relation to an offence". The wording of the provision assists in interpreting what is meant by an "offence" in this context_._ "Offence" in this context is necessarily used in the sense of offending conduct, or "actus reus". This is quite different to a conviction for the relevant offence, which would also require "mens rea' to be established. The provision, in its own terms, contemplates that an Applicant may be so mentally impaired, as to be unable to plead, yet still to have "committed an offence".
9. Secondly, other parts of s501 explicitly refer to "criminal record" or a "conviction" as a basis for a person failing the character test.[7] S501(6) (aa) for example, speaks of where " the person has been convicted of an offence...".[8] This clearly establishes a distinction between committing an "offence" per se, and a conviction for an offence.
10. Thirdly, I note that s501(6)(c) for example, provides that a person may even fail the character test having regard to "the person's past and general conduct". This test does not require either an "offence", or a "conviction".
11. Fourthly, s501(7) (e) provides that if a "person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution" they also have a "substantial criminal record" for the purposes of s501(7). This is not the case here and it was not the basis of the Respondent's decision, but it a demonstrates that the Act does not require a conviction for a person to have a "substantial criminal record" as defined_._
12. Fifthly, s501(7) (e) and (f) in their practical effect, operate as deeming provisions "for the purposes of the character test". They deem certain conduct to constitute a "substantial criminal record" for the purposes of the Act. The fact that such conduct may not actually be criminal in a strict legal sense, is irrelevant.
13. The scheme of the Act distinguishes between "conduct", "an offence" and a "conviction". These terms are not interchangeable. Not all "conduct" may not constitute "an offence", and not all "offences" may result in a "conviction". Any of these may however, subject to the provisions of the Act, result in a finding that a person does not pass the character test.[9]
14. The relevant question here is whether the Applicant has a "substantial criminal record" as defined, not whether the has been convicted of an offence.
15. I am satisfied, having regard to the findings and Orders of Bampton J, that the elements of s 501(7)(f) have been established.
16. I am therefore satisfied the Respondent had the power to make a decision to cancel the Visa under s 501(2).
17. The Tribunal has jurisdiction to review that decision.

1. The issue before the Tribunal is therefore whether the discretion to cancel the Visa should be exercised.
2. When reviewing the file, I became concerned about the Applicant's capacity to participate in these proceedings.
3. On 27 January 2026, an email was sent to the parties in the following terms:

"The presiding Senior Member has requested a further Telephone Directions Hearing. Please advise the Tribunal of your joint availability for the remainder of the week and early next week to discuss the following:

1. What capacity does the Applicant have to engage with the proceedings?
2. If he has some capacity, what is it? and what special arrangements need be made (if any)?
3. If he lacks capacity, is this matter to proceed on the papers, with the parties making such submissions as they made deem appropriate?
4. If the matter is to proceed on the papers, should the parties use the SOFIC as written submissions and supplement this with an oral summary of argument on 10 March?".
5. In reply, on 28 January 2026, the Tribunal received the following from the Applicant's representative:

"I'll answer your questions in the based way I can based on the Psychiatrist reports and previous recommendations.

1. What capacity does the Applicant have to engage with the proceedings?

Mr Rahimi lacks functional capacity to engage with the proceedings due to severe treatment resistant schizophrenia, traumatic brain injury, and significant cognitive impairment. These conditions prevent him from understanding information, retaining it, weighing decisions, or giving consistent instructions. Participation would offer no meaningful benefit and carries clinical risk.

2. If he has some capacity, what is it, and what special arrangements need to be made?

He does not retain practical or reliable capacity to engage, even with supports. His cognitive and psychiatric impairments prevent sustained attention, comprehension, and decision making. Special arrangements would not overcome these limitations and may destabilise him. The safest and fairest option is to proceed without requiring his involvement.

3. If he lacks capacity, is the matter to proceed on the papers, with parties making submissions?

Yes. Given his lack of capacity and the risks associated with participation, the proceeding should occur on the papers with submissions from the parties. The treating clinicians can provide necessary information to ensure fairness without exposing him to distress, confusion, or deterioration in mental state.

4. If proceeding on the papers, should the SOFIC be treated as written submissions with an oral summary on 10 March?

1. A further directions hearing was held on 27 January 2026. The Applicant's representatives confirmed that the Applicant would not be able to participate in the proceedings.
2. The parties were invited to discuss the practical consequences of this situation and to report back to the Tribunal with a proposed list of witnesses (if any) and any agreed facts, on 17 February 2026.
3. On 17 February 2026 and 11 March 2026, there were further directions hearings.
4. The Tribunal must, despite the obvious difficulties in this case, make findings of fact relevant to the considerations as set out in the Direction.
5. I accept that Mr Lawton, from the Crown Solicitor's Office, who acts on instructions from the Public Trustee, is lawfully able to speak for and on behalf of the Applicant.[10]
6. Where I refer to the Applicant in the body of this decision, I am referring to the Applicant, as represented by Mr Lawton.
7. I am satisfied that the Applicant has been afforded procedural fairness, albeit in the very unusual context of this case, through the active involvement of Mr Lawton.
8. The hearing was held on 24 March 2026. The Applicant was represented by Mr Robert Lawton of the Crown Solicitors Office and the Respondent was represented by Mr P H d'Assumpcao of counsel.
9. The Respondent called Dr Cassie Smith, a consultant Forensic Psychiatrist who has been treating the Applicant. Her evidence was very helpful in affording a greater understanding of the Applicant's medical condition and its management.
10. In summary, her evidence was:
    • The Applicant will require treatment and inpatient rehabilitation for many years, if not for life.
    • His paranoid schizophrenia almost certainly pre-dates his head injury in 2011.
    • His long-term untreated psychosis is consistent with his poor responsiveness to treatment.
    • He would be unlikely to be ready to be considered for community-based care, for at least 5 years.
    • He has been on clozapine since 2022 and this has moderated the delusional aspects of his illness, though he still lacks insight and executive function.
    • Clozopine has unpleasant side effects, which themselves require additional medication to be managed.
    • If he were to miss his usual clozapine dosage for 2 days, he would have to stop the medication altogether, and "re-titrate". He would then be at risk of having a seizure. He would also suffer a "rebound psychosis" which would be "significant and abrupt". Dr Smith would be concerned about "a violent relapse" in these circumstances_._ If this happened, he would present a risk to other residents in a community home and to his carers. He may also be a risk to people that he has known before his incarceration.
    • He does not think that he needs to take medication for his illness.
    • He did threaten to kill his wife, and she is fearful about her safety and that of her family, including those still in Afghanistan.
    • It is difficult to separate his illness and a "cultural aspect".
    • He does not accept that he is or has been separated from his wife.
11. At the end of her evidence, I invited Dr Smith to examine her records and to provide such further evidence as she may have available to her, regarding the Applicant's ongoing ties to his wife and children.
12. On 27 March, the Tribunal was provided with the following statement from Dr Smith, by way of an Email. This was tendered by the Respondent, with the agreement of the Applicant.

"I have reviewed the case notes, from the start of his current admission in February 2022.

On admission (Feb 2022), Maiwand claimed to have been speaking with wife and children daily in prison and wife sending him photos regularly of the children. Had regular contact via phone with his wife and children since transfer to James Nash House. This was not monitored by staff.

The social worker had a phone call with (the Applicant's wife) and an interpreter on 1/7/22-

"-SW with the assistance of nurse Sonya contacted Maiwand's wife: ......... A summary of the call is below:

- (the Applicant's wife) advised that she is struggling being a single mother to 5 children. She advised she is very busy caring for her children, has many appointments and struggles financially. She stated she feels isolated and lonely. She advised that she was linked with SSW (Settlement Services International - an NGO organisation in NSW and has an office in Newcastle). She stated she does not currently have the funds to purchase a car and also Maiwand is against her driving (cultural concerns).

- the Applicant's wife) advised her children, particularly the younger children, ask about their father regularly and do not understand why they are not able to see him. (the Applicant's wife) wishes to visit Maiwand in order for her children to have a relationship with their father. She advised that she has promised the children that they could come and see him and wishes to fulfill this promise.

- (the Applicant's wife) would like to visit Rahimi as soon as possible and would prefer this visit to occur during the school holidays - which start next week. She intends to come with the children to Adelaide via bus or train and has the budget to do this currently. She stated she has spoken to the family friend listed above (named) and he is accepting of them staying at their house for the duration of the visit to Adelaide.

- (the Applicant's wife) queried if it would be possible for Maiwand to get a transfer to a NSW facility to be closer to his family. SW and Sonya explained summary of lengthy process. She further queried court process here and the sentence Maiwand received. Education provided re: MI, Life Limiting Term, Treatment & Rehabilitation, no further court dates etc.

- (the Applicant's wife) advised that skype or video calling would not be her preferred method of contact with Maiwand. She advised that she "knows what Maiwand's like" and would be calling her constantly on video call. (The Applicant's wife) advised that if the family visit could not take place, she would consider skype / video calling. (the Applicant's wife) advised that she does not have internet at home as this is an expense she is unable to afford.

- (the Applicant's wife) welcomed contact from SW and help from nurse Sonya (who speaks Dari, a dialet (the Applicant's wife) can also speak / Pashto is (the Applicant's wife) preferred language). SW and Sonya committed to monthly phone calls to provide updates on Maiwand's treatment / rehab and to also be available to her for any questions, concerns.

- SW advised approval would need to be sought from Treating Team and Management re: family visit. SW to advise (the Applicant's wife) of the outcome."

1. Social work contact with (the Applicant's wife) 13/7/22:

"Pc to (the Applicants wife) with Pashto interpreter. (the Applicant's wife) advised that currently Maiwand is calling frequently due to his elderly father being in hospital with a blockage in his heart. (the Applicant's wife) advised that presently she is accepting of this contact due to Maiwand's concern for his father, however once this matter is resolved, she would like only 2 phone calls from Maiwand per day. Morning and Afternoon suit her.

(the Applicant's wife) is consenting to skype calling, however would like this to be only 1x per week for 15-30 minutes. She stated that if these calls become upsetting to her children or herself, she will advise SW."

Social work contact with (the Applicant's wife) 21/7/22:

"Pc to (the Applicant's wife)....... with Pashto interpreter via ITC. Brief discussion re: future skype calls and brief psycho-social ax.

- (the Applicant's wife) advised she and the children would still like to have skype calls with Maiwand 1x weekly. Weekends are preferable as children are home from school. (the Applicant's wife) advised Skype could be 1x weekly for 15-20 minutes - accepting of this."

First Skype session occurred Saturday 30/7/22 at 2pm. Staff present.

Around September 2022 Maiwand made the threats towards (the Applicant's wife). From then, the contact was ceased but recommended in a measured way a few months later only via Skype with an interpreter and staff monitoring the phone calls closely. Regular contact continued in this manner up until last year when (the Applicant's wife) filed for divorce.

Family (wife and children) returned to Australia from Afghanistan in August/September 2021."

1. I asked the Respondent to take instructions and to advise the Tribunal of the practical/legal consequences of any decision that the Tribunal may make.
2. The Respondent advised by way of an Email dated 24 March 2026, in the following terms;

"We provide the following response with respect to the Tribunal's consideration of the legal consequences of a decision to affirm the cancellation decision under review.

In the event the Tribunal affirms the decision, the applicant will remain detained in a psychiatric facility pursuant to the order made by Justice Bampton on 20 June 2022 in the Supreme Court of South Australia. In the event the applicant is released from the psychiatric facility, by reason of the court order being lifted or varied, and subject to any future protection visa application, his liability for detention and possible removal will be assessed."

1. This means that unless or until the Supreme Court of SA is persuaded to vary the current arrangements, they will continue indefinitely. The Applicant would not be involuntarily removed to Afghanistan. If the situation changes in the future, the Respondent's position will be reassessed.
2. If the Respondent's decision is affirmed, the Applicant may still choose to make a protection application.
3. If he has the capacity to do so in the future, he may elect to return to Afghanistan voluntarily.
4. For the foreseeable future however, the Applicant will remain detained in a forensic mental health facility.

1. The Applicant was born in Afghanistan on 1 January 1986.[11] He is 40 years old. He is an Afghan citizen.
2. The Applicant worked as an interpreter for Australian and US forces in Afghanistan.[12]
3. On 16 July 2010, the Applicant was married in Afghanistan. They now have 5 children. The Applicant's wife lives in NSW.[13]
4. In April 2011, the Applicant's daughter, Child A was born. She is now 14 years old.[14]
5. In 2011, the Applicant was injured by the Taliban.[15]
6. Dr Smith was unsure what, if any, causal connection between this head injury and the Applicant's current mental health problems exited. It has been difficult to complete brain imaging due to the presence of metallic fragments and the Applicant's intolerance of imaging equipment processes.[16]
7. Dr Smith thought that it was more likely that the Applicant had a longstanding and untreated mental health condition that predated the 2011 injury.
8. In October 2012, the Applicant's daughter Child B was born. She is now 13 years old.[17]
9. In January 2014, the Applicant's son Child C was born. He is now aged 12.[18]
10. On 15 April 2014, the Applicant and his family came to Australia on a Refugee and Humanitarian (Class XB), subclass 201, visa.[19]

1. The Applicant worked in labouring and construction jobs from 2016 to 2017, and as an Uber rideshare driver from 2015 to 2018.[20]

1. In March 2016, the Applicant's son Child D was born. He is now aged 10.[21]

1. On 27 March 2018, the Applicant's son Child E was born. He is now aged 8. [22]

1. On 22 June 2018, the Applicant was granted the Visa.[23]

1. According to the Applicant's wife, they separated on 1 September 2018.[24] This is date is disputed by the Applicant.[25]

1. On 12 September 2018, the Applicant departed Australia. He says that he travelled to Afghanistan with his wife and his 5 children.[26]

1. He returned on 26 September 2018.[27] He says that he returned alone. This has been confirmed by the Applicant's wife. He did not however regard the marriage as over at that time.[28]

1. On 17 November 2018, the Applicant murdered Mr M ("the Deceased").[29]

1. The particulars of this, as set out by Her Honour Judge Bampton are as follows:

"Having recorded the finding that Mr Rahimi is mentally unfit to stand trial, I heard evidence and representations by the Director and defence counsel relevant to the question of whether a finding should be recorded that the objective elements of the offence of murder are established. The Director and defence counsel agreed the factual basis of the objective elements for the offence of murder are as follows.

Mr Rahimi and [the Deceased] had worked as interpreters for the Australian Defence Force and the United States Forces in Afghanistan during the war in Afghanistan. They were friends who had migrated to Australia from Afghanistan in 2014. They remained friends until about a year and half before the killing when their relationship became strained.

[the Deceased] resided with his family in South Australia. Mr Rahimi had resided with his family in South Australia before taking his wife and children back to Afghanistan in September 2018. Mr Rahimi moved to Victoria in December 2018.

On 7 December 2018, Mr Rahimi hired a Holden Trax vehicle and commenced work as an Uber driver. Mr Rahimi drove from Melbourne to Adelaide on 16 December 2018 without telling friends he was travelling to Adelaide.

Mr Rahimi had made a series of phone calls to [the Deceased] from 5.33 am and made contact at 2.40 pm on 16 December 2018. At 2.44 pm on 16 December 2018, Mr Rahimi stopped outside [the Deceased]'s home and [the Deceased] joined him in the Holden Trax, taking only his phone, wallet, and leather jacket with him.

Several hours later, [the Deceased] contacted his wife telling her he was going to Perth with Mr Rahimi and to reschedule a medical appointment. During the journey, [the Deceased] was phoned by a friend. He told the friend that Mr Rahimi just turned up at his home, was very insistent that he go with him and "they were travelling together to Perth to look for work and will be flying back in 3 days".

In the early hours of 17 December 2018, Mr Rahimi killed [the Deceased] by inflicting multiple penetrating injuries to [the Deceased]'s head with a tomahawk in the parking bay on the Eyre Highway, Nullarbor. The initial attack occurred at the back of the Holden Trax where it was parked in the parking bay. A subsequent attack occurred where [the Deceased]'s body was located 30 metres away from where the Holden Trax had parked.

Mr Rahimi continued driving west on the Eyre Highway for approximately eight kilometres before turning around and travelling east. The Holden Trax ran out of fuel approximately 30 kilometres west of Nundroo.

Mr Rahimi took a series of selfie photographs holding a bloodstained tomahawk which he sent to family members in Afghanistan along with a series of messages stating he killed [the Deceased] because of "gossip" and then deleted.

Mr Rahimi was found walking west along the highway towards Yalata when a civilian took him to the Y alata police station.

Police located the Holden Trax containing bloodstained clothing, and a tomahawk on the side of Eyre Highway. Mr Rahimi's passport and visa papers were in the glove box of the Holden Trax.

Mr Rahimi told police he had a fight with [the Deceased] and that [the Deceased] walked off. During the record of interview, Mr Rahimi sang a song that has since been translated into English from Pashto: "Do not gossip behind someone because this how your day will turn out. You had made fake stories behind me and your story became a reality".

Mr Rahimi was arrested and charged with the murder of [the Deceased].

The forensic pathologist, Dr Karen Heath, performed the post-mortem examination of [the Deceased]' s body on 19 December 2018 and found:

(a) 11 chop style penetrating injuries to [the Deceased]'s head, consistent with the use of an axe or machete type weapon;

(b) the mechanism of death was the combined effects of blood loss and head injury; and

(c) the presence of depressed comminuted fractures of the skull indicated the use of severe force.

The forensic neuropathologist Prof Peter Blumberg examined [the Deceased]'s brain and found that there were:

(a) severe lacerations with loss of cerebral tissue involving the left anterolateral frontal lobe associated with contusion; and

(b) severe laceration and contusion of the left posterior temporal parietal occipital lobe.

The injuries described by Prof Blumberg and Dr Heath indicate [the Deceased] was struck 11 times with an axe or machete type weapon.

Blood pattern analysis of clothing worn by Mr Rahimi undertaken by Forensic Science SA indicates Mr Rahimi was in a kneeling position over [the Deceased] at the time of the attack.

Defence counsel, pursuant to s 269W of the Act, conceded the objective elements of the offence of murder are established.

Pursuant to s 269MB(2) of the Act, having heard the evidence and representations put to the Court by the Director and defence counsel, I am satisfied beyond reasonable doubt that the objective elements of the offence of murder are established. Accordingly, I recorded a finding that the objective elements of the offence of murder are established beyond reasonable doubt and I declared Mr Rahimi liable to supervision under Division 4 Subdivision 2 of Part 8A the Act."[30]

1. The Applicant was remanded in custody on 17 December 2018.[31]
2. In August/September of 2021, the Applicant's wife and children returned to Australia after 3 years away.[32]
3. On 2nd December 2021 the Applicant was declared to be liable to supervision, based on a finding that he was unfit to stand trial for murder.[33]
4. On 9 February 2023, Dr Owen Haeney, a Consultant Forensic Psychiatrist prepared a report to the Clinical Director of Forensic Mental Health Services. It states:

Mr Rahimi is originally from Afghanistan, granted permanent residency of Australia following his arrival in 2014. His official date of birth gives his age as 37, although I understand that his actual date of birth was unknown and the above date was 'chosen' by him.

Following his remand into custody for murder (occurring 17th December 2018) he was identified as suffering from a psychotic illness, which had likely been present for up to 15 years. He has since been diagnosed with schizophrenia. He exhibited grandiose and religious delusions, such as the belief he could predict the future, could resurrect people and was a prophet. The offence was motivated by a delusion that a friend was engaged in wife-swapping, which Mr Rahimi Maiwand believed to be a terrible sin. He had also had prior premonitions that he would kill his friend when he (the victim) had five children. During a car journey to Perth, while crossing the Nullarbor, Mr Rahimi repeatedly struck the victim with an axe.

On 2nd December 2021 he was declared to be liable to supervision, based on a finding that he was unfit to stand trial for murder. A mental incompetence defence had also been supported. He was subsequently committed to detention at James Nash House, the statewide forensic mental health hospital. He has remained in hospital since that time. After failing to respond fully to initial treatments, including depot antipsychotic medication, Mr Rahimi was commenced on clozapine in March 2022.

Mr Rahimi has a history of cannabis use and occasional alcohol use. He is blind in his left eye, following a stabbing in Afghanistan. His wife and five children now reside in Newcastle, NSW. He has siblings in Germany while the rest of his family remain in Afghanistan.

The court was last updated by way of a report under sections 269Q(1) and 269T, by Dr Cassie Smith, dated 14th March 2022. This annual report provides a summary since that time.

Treatment that defendant has undergone since last report

At the time of the last report, Mr Rahimi had just commenced clozapine and had been assessed as suitable for KOB East rehabilitation ward, once a bed became available. He tolerated the initiation and titration phase of clozapine, including some side effects. Initially his mental state appeared unchanged, but he then began to report that he felt it was helping him "know right from wrong". His previous medication, paliperidone, was weaned and ceased, resulting in improvement in side effects.

On 21st March 2022 Mr Rahimi was assaulted by another patient. He did not retaliate. It appeared related to the other patient's mental health and Mr Rahimi declined to make a police report.

By April 2022 Mr Rahimi was expressing some remorse for his offence, reporting sorrow for the victim and his family and saying that he should not have started a fight with him. However, the belief that the victim engaged in wife-swapping persisted. Mr Rahimi tried to observe Ramadan, although found fasting difficult due to the appetite-stimulating effect of clozapine.

It was noted that Mr Rahimi was reluctant to discuss some of his previous traumas and experiences in Afghanistan, but the team recognised that these matters would need addressing in the future. A referral to Survivors of Torture and Trauma Assistance and Rehabilitation Service (STTARS) was planned for the future, although it later transpired that they could only offer counselling, rather than the more intensive therapy felt to be required.

On 16th May 2022 Mr Rahimi transferred to KOB East. He settled in well, appearing motivated to engage in activities around the unit. However, reassessment of his mental state confirmed that while he expressed sorrow for the victim and his family, he continued to believe the victim had engaged in wife swapping (without any evidence for believing so) and felt his actions were justified. While he reported that his ability to predict the future were gone, since starting clozapine, he continued to believe that previous predictions had come true. Some concerns were expressed about his memory and further cognitive assessments were planned.

On 20th June 2022 Mr Rahimi appeared before the Supreme Court and was committed to detention. On the ward, he remained reasonably settled. At times he was reported to push boundaries, for example requesting additional Nicotine Replacement Therapy but asking nursing staff not to record the extras on his chart. Occasional irritability was noted. In July 2022 he commenced on sodium valproate as seizure prophylaxis, given his clozapine levels.

There was liaison with Mr Rahimi's wife, in Newcastle. She confirmed she and the children wished to continue a relationship with him, with visits or video calls as feasible. However, in September 2022 she reported that Mr Rahimi had made threats to kill her during their contact (using their native language of Pashto). He had also been encouraging her to move to Germany to be nearer other members of his family. The team concluded he may have felt jealous of her growing independence, for example through learning to drive or having English lessons. Mr Rahimi denied making such threats, however, there was concern that he tended to exaggerate the language barrier as a means to buy time or blame misunderstandings. The matter was reported to police and the DPP. External communications were ceased. He continued to request calls to his wife despite repeated explanations. The team became aware of alleged severe domestic violence within the relationship. His wife initially planned to seek an Intervention Order, then opted not to do so, of her own accord. Subsequently, she attempted to reinstate phone contact with her husband, even before this was approved by the treating team.

When assessed by the new RMO, Dr White, on 5th October 2022, Mr Rahimi reported distress at his inability to contact his wife and parents. He reported he had no idea why contact was suspended. He denied making any threats, saying only that there were arguments about his wife learning to drive. He reported concern that she would crash and jeopardise the health and lives of their children. He reported low mood but no clear psychotic symptoms.

By the end of October 2022 it was agreed that contact with his parents could resume, with interpreters present to ensure the clinical team could be aware of the nature of discussions. There was also increasing urgency for contact to resume with Mr Rahimi's wife, due to reports that the children were becoming distressed at the lack of contact. When reviewed by Dr Nambiar on 28th October 2022, Mr Rahimi continued to deny making threats to his wife. He appeared to have somewhat improved awareness of previous delusions, including regarding wife-swapping, reporting that medication had helped. He expressed some regret and noted the role of cannabis and alcohol at the time of the offence.

Further liaison with Mr Rahimi's wife confirmed that she wanted to recommence contact, albeit on her own terms rather than allowing him to call her repeatedly, as he had done before. She confirmed she was not seeking an intervention order.

On 16th November 2022 Mr Rahimi contacted his family in Afghanistan, speaking in English, with a Pashto interpreter present to translate his family's responses for the clinical team. The call was appropriate, with his parents reassuring him that his wife was caring for his children well.

On 29th November 2022 Mr Rahimi was permitted to have a phone call with his wife and children for the first time since the alleged threats, with an interpreter present at James Nash House to monitor and report on the content of the call. The call was described as appropriate and loving, with Mr Rahimi asking suitable questions. Further phone calls were agreed, once per week.

While his presentation on the ward remained largely appropriate, he continued to ask nursing staff not to record his NRT use so that he could access more than prescribed. He was also heard talking about wife-swapping. When reviewed by Dr White in December 2022, Mr Rahimi said he had 50% sure that the victim had engaged in this activity. Other psychotic symptoms were not elicited.

As covering consultant, I reviewed Mr Rahimi on 22nd December 2022. Mr Rahimi indicated he knew he had a form of mental illness, treated with medication that "helps me know right from wrong". He gave a rather vague description of his offence, which was not discussed in detail. He alluded to "having a fight that resulted in his death" because Mr Rahimi "thought things that were not right". When discussing the reasons for the prolonged suspension of contact with his wife and children, Mr Rahimi minimised the concerns, denied threats, and said that they were the usual sort of argument that occur between husband and wife. He demonstrated limited insight into his legal situation and pushed for commencement of transition.

At Christmas, it was noted that Mr Rahimi told a female Muslim staff member that she was not dressed appropriately.

While phone call contact between Mr Rahimi and his wife continued, he was noted to push for video calls or to have his wife's new address, which she resisted. She was keen to visit with the children over the school holidays. His wife reported some trepidation about his possible reaction, however. When the potential for a visit was discussed with Mr Rahimi, he expressed concern about his wife's ability to manage the logistics of the visit with the children. He suggested that a family friend help her and said that if this could not occur, he would prefer her not to visit. His suggestion offended his wife, who then withdrew the offer and opted not to come. She later agreed to video calls, encouraged by Mr Rahimi. She expressed some concerns that if he was deported, she and the children would be too.

Mr Rahimi later raised the issue of deportation (16th January 2023), saying he thought he should return to Afghanistan to support his elderly parents. He also raised concerns that the victim's family in Afghanistan would take revenge on his family and could harm or kill them. He believed that if he was in Afghanistan, he could either protect his parents or otherwise the victim's family would kill him instead, then at least his parents would be safe.

In ongoing contact with his wife and family, Mr Rahimi was reportedly polite and appropriate but his wife expressed concern that he appeared sad. She requested to speak to him without an interpreter present, to facilitate communication and clarify why he felt that way.

Recently, on 6th February 2023, Mr Rahimi was seen by the team psychologist for the purposes of commencing a cognitive assessment. Mr Rahimi noted his blindness in his left eye and longstanding difficulties with reading and writing. He also found cooking difficult, noting that his mother then his wife had always had responsibility for this, but was open to learning, showing good humour in the discussion. His difficulty understanding some of the words in recipes compounded his unfamiliarity with the process.

Mr Rahimi reported that in relation to his stabbing and eye/head injury in 2011, he had a period of retrograde amnesia and since the injury had difficulty recalling people's names, and potential short term memory deficits. Language skills were not affected. Mr Rahimi perceived an improvement in his mental functioning since being in JNH, again referring to knowing the difference between right and wrong. He denied any flashbacks or other trauma-related symptoms but had little understanding of the concept of Post-Traumatic Stress Disorder. The cognitive assessment remains ongoing.

At the conclusion of the interview, Mr Rahimi asked about increased contact with his wife, and ceasing the need for an interpreter. When asked to explain the context of some of the restrictions, he admitted he had said "bad words" to his wife. He expounded that he had been worried about her learning to drive and placing her safety and that of the children in jeopardy. He reported he told her not to learn to drive but she insisted, leading to him saying "bad words". He said he would not behave similarly again but could not explain how he would do so. He denied previously threatening or saying bad words to his wife. Currently the clinical team have not approved increased/unmonitored contact with his wife.

Any changes to the prognosis of the defendant's condition and treatment plan for managing the condition.

Having discussed with his clinical team, there are no current plans to seek variation of his supervision order and Mr Rahimi remains committed to detention. His prognosis remains unchanged; there is gradual improvement in the residual psychotic symptoms, but progress is hindered by the language barrier and Mr Rahimi's tendency to downplay any concerns. The threats to his wife are of significant concern, as was Mr Rahimi's denial and minimisation of the issues. He has limited understanding of the nature of his supervision order and the likely timescales for progression, sometimes requesting a move to New South Wales or deportation to Afghanistan instead.

The treatment plan remains similar. Mr Rahimi will continue medication, administered by nursing staff, with input from other team members including social work, occupational therapy and psychology. He is due to complete a cognitive assessment imminently. Given the threats to his wife, contact with her is currently managed under restrictions, to ensure no recurrence.

If you require any additional information, please do not hesitate to contact me."[34]

1. On 6 December 2023, Dr Shivani Valunj, a Psychiatry resident medical office at James Nash House wrote a report to the SA Supreme Court in the following terms,

"Thank you for requesting an Annual Report on Mr Rahimi under the requirements of the Criminal Law Consolidation (Mental Impairment) Amendment Act 1995. According to Section 269Q (2), the report should contain:

a) A statement of any treatment that the defendant has undergone since the last report, and

b) Any changes to the prognosis of the defendant's condition and the treatment plan for managing the condition.

I have based this report primarily on my interactions with and clinical reviews of Mr Rahimi, participation in multidisciplinary ward rounds, discussions with the team members and review of his notes over the past 12 months. This report has been supervised by Dr Megan Ferris, who is the consultant forensic psychiatrist who has been taken over Mr Rahimi's care from 11 September 2023.

The court was last updated in an annual report by Dr Haeney dated 9th February 2023. I have considered his management and treatment since that time to include in this report.

Please note that all information received from Mr Rahimi's wife is highly confidential as he is unaware of the regular liaison between the treating team and his wife.

Mr Rahimi has a wife and 5 children aged between 5 and 12, who currently live in Newcastle, New South Wales. He has a large family with siblings in Germany and the rest of his family living in Afghanistan.

TREATMENT THAT THE DEFENDANT HAS UNDERGONE SINCE THE LAST REPORT.

Since the last annual report, Mr Rahimi has remained a patient on the Kenneth O'Brien East Rehabilitation Unit at James Nash House.

Mr Rahimi's mental state has largely remained unchanged.

He has a superficial but impaired understanding of his diagnosis of treatment-resistant Schizophrenia. He has difficulty with the concept of Schizophrenia as an illness that leads to delusions (fixed, false beliefs) or behaviours driven by delusions. Upon initial discussions of his offence, he often used the phrase 50:50 which implied that he was half sure about the belief that the victim was engaging in wife-swapping. However, upon further detailed reviews, it was posed that he has a binary understanding of the belief either he was right or he was wrong. There is lack of regret and ongoing belief that killing is culturally justified if the victim engaged in wife-swapping. He continues to have the beliefs that the victim was wife-swapping. The delusions do not involve his wife.

Mr Rahimi also presents with ongoing negative symptoms of Schizophrenia including blunting (a reduced range of emotional reactivity) and amotivation. There has been some improvement in his engagement with physical rehabilitation on the ward since his last report including walking on the internal track inside James Nash House and using the ward gym regularly. He has responded positively to encouragement to attend these activities with the goal of losing weight.

More recent confidential collateral obtained from Mr Rahimi's wife noted that there was a significant change in his behaviour after the 2011 assault and injury to his eye after the first year of marriage. Prior to this he was kind, polite and respectful. But the assault, he was angrier and more controlling with associated poor sleep and substance use. There was a notable increase in his paranoia about his wife's fidelity. It is postulated that this assault may have contributed to his change in behaviour. However, appropriate brain imaging using MRI was incomplete due to noted foreign metal particles still present in the eye. Hence it was difficult to identify any organic structural abnormalities contributing to Mr Rahimi's illness.

The main component of Mr Rahimi's psychiatric treatment has been Clozapine (an antipsychotic medication), the gold-standard treatment for Treatment-Resistant Schizophrenia. In early February 2023, his Clozapine dose was increased to 100mg in the morning and 350mg at night due to ongoing delusional beliefs about the victim engaging in wife-swapping. This was increased to 100mg in the morning and 400mg at night as there was no change seen in the intensity of his beliefs. His Clozapine levels were found to be high on routine monitoring and he remained on Valproate 500mg twice a day for seizure prophylaxis.

In March 2023, he was commenced on Amisulpride (an antipsychotic medication) 200mg twice a day to augment the effects of Clozapine due to inadequate improvement in his presentation after the initial increase in Clozapine dose in February. The Amisulpride dose was slowly increased to 600mg twice a day, last increased in November 2023 due to ongoing guarded presentation.

His understanding of the antipsychotic medications is that it helps him think about positive thoughts rather than negative thoughts. He reflected on this as an improvement comparing it to his time in prison when he would predominantly think about negative thoughts. He was unable to reflect if the antipsychotics had any effect on the delusions.

He continues to experience morning tiredness and drooling at night, which are common side effects of Clozapine. Recently due to ongoing encouragement to engage with rehabilitation on the ward, Mr Rahimi has been getting up earlier in the morning and going for daily walks, as is mandatory on the ward.

Mr Rahimi's response to antipsychotic treatment has been slow, and his improvement has been minimal, which supports the likelihood of Mr Rahimi experiencing a long period of untreated psychosis.

In March 2023, during the period of Ramadan, Mr Rahimi was informed that he can observe Ramadan by taking his medication before and after sunrise. However, he did not want to do so and instead was keen to observe an alternative practice postulated by Islam if one cannot observe Ramadan. He wanted to practice zakat by sending money to his wife and to Afghanistan. He was informed this was not suitable due to the lack of financial capacity in view of ongoing symptoms of mental illness. Issues with recall and perseveration were noted during the review. He was unable to recall information provided about some aspects of a previous review 5 days prior.

In April 2023, there were concerns raised by Mr Rahimi's wife about Mr Rahimi attempting to arrange a marriage for his thirteen-year-old daughter. On further exploration during regular reviews as an inpatient, this did not seem to be driven by his mental illness. It was felt to be more reflective of Mr Rahimi's agency in family affairs and his unease with his current position as an inpatient. There were no further concerns raised by his wife since having discussions with Mr Rahimi.

In September 2023, Mr Rahimi requested a large amount of money ($8000) to be transferred to his wife for a car. There were concerns about Mr Rahimi's capacity to make decisions about his finances in context of his severity of Schizophrenia. On further discussion in a multidisciplinary meeting and with his wife, setting up smaller regular payments such as child support were deemed to be more appropriate as these would be automatically deducted from his disability support pension.

There remains a significant degree of repetition noted about his requests. The requests commonly involve deportation to Afghanistan, commencement of leave outside James Nash House and an increase in contact with his wife. He continues to have similar requests despite psychoeducation on many different occasions.

In June 2023, bedside cognitive tests were performed which showed clear deficits in the frontal region of the brain. Impairment was noted with abstract reasoning, attention and programming. These were consistent with the clinical impression of Treatment Resistant Schizophrenia.

Repeatable Battery for the Assessment of Neuropsychological Status (RBANS) was completed in August 2023. Due to multiple complicating factors, such as visual impairment, ongoing psychosis and English not being his first language, it was difficult to interpret some of the results. On discussion of the results with Advanced Clinical Lead Neuropsychologist the impression was that the test was invalid in the context of Mr Rahimi's unusual response style and much poorer scores than would be expected given his observed functional capacity on the ward. Hence the recommendation was to reassess at a later stage when there is an improvement in his psychotic symptoms of Treatment-Resistant Schizophrenia and consider completing this in Mr Rahimi's first language.

In early 2023, Mr Rahimi continued to have contact with his family and wife on a weekly basis with the presence of an interpreter. This was organised after his wife raised concerns about Mr Rahimi threatening to kill her whilst speaking in Pashto in September 2022. On subsequent reviews, he has minimised any marital arguments and not mentioned threats of violence or death.

In May 2023, the frequency of phone calls to his wife was reduced from weekly to fortnightly for a number of factors- some of which Mr Rahimi was intentionally not made aware of. His wife was distressed by weekly phone calls but was coerced by Mr Rahimi's family to continue these. After discussion in the multidisciplinary team, the frequency of the phone calls with his wife and family was decreased to fortnightly and in the presence of a Pashto-speaking telephone interpreter. Mr Rahimi reluctantly accepted the decreased frequency of phone calls to relieve the pressure on his wife. He had some difficulty identifying the sources of stressors, such as managing the household like a single parent.

He continues to make requests to increase contact with his wife, who is amicable to the fortnightly contacts and would prefer to further reduce contact to monthly.

More recently, his brother, [Mr Z], is planning to visit Mr Rahimi at James Nash House with the plan to bring Mr Rahimi's family from Newcastle. There is significant concern raised by Mr Rahimi's wife that this visit was also organised to encourage/coerce her to relocate to Germany with their children. Unfortunately, the treating team has not been able to contact his brother to confirm dates of the visit or the intention of relocating his family and in November 2023 it was reported that the visit may not be going ahead.

Mr Rahimi was referred to an outpatient ophthalmology clinic for further investigation of headaches when using his glasses in April. After liaising with ophthalmology in June, his vision with his glasses was noted to be adequate and he would continue to retain numbness below the affected eye due to the severe nature of the injury leading to blindness. There was no further need for ophthalmology appointment.

Clozapine 100mg in the morning, 400mg at night Amisulpride 600 mg twice a day Sodium Valproate 500mg twice a day

Hyoscine Hydrobromide 300 micrograms in the morning, 600 micrograms at night Docusate and senna 100mg/16mg twice a day Fenofibrate 145mg in the morning Magnesium 500mg at night

ANY CHANGES TO THE PROGNOSIS OF THE DEFENDANT'S CONDITION AND TREATMENT PLAN FOR MANAGING THE CONDITION.

Mr Rahimi's mental state has largely remained unchanged with no significant changes to his guarded prognosis. At this stage, his treatment plan continues in an inpatient setting and there are no current plans to seek variation of his Supervision Order.

He continues to require inpatient treatment given his limited engagement and poor insight into his illness. He will require further intense rehabilitation and hopefully will begin to focus on future planning for when the day comes that he can be considered for release on Licence.

Mr Rahimi has a limited insight into his illness, including his past symptoms, and remains guarded. He has a minimal understanding of the nature of the Supervision Order, and the timeframe for progression, as has requested deportation to Afghanistan followed by Australian citizenship multiple times. This persists despite multiple attempts at education about the forensic pathway and licence conditions. There may be a role for further cognitive testing in his first language, when his illness improves, to formulate strategies which would assist with retaining information.

Mr Rahimi's contact with his wife remains fortnightly with an interpreter present during the video call for monitoring, with a plan to further reduce this contact in the future, as requested by his wife. He continues to have contact with his family in Afghanistan on a fortnightly basis. The aim is to organise a family meeting with his brother in November prior to his visit with Mr Rahimi which now may be occurring in 2024. The goal of the meeting would be to gain collateral and ascertain their understanding of the illness and his Supervision Order.

- Ongoing antipsychotic medications, with regular blood tests to confirm adherence and therapeutic levels

-Regular blood tests to monitor blood sugar and lipid levels

-Multidisciplinary assessment to evaluate further rehabilitation potential, followed, as appropriate, by redesign of further inpatient rehabilitation."[35]

1. On 5 January 2024, the Supreme Court of SA made an order committing the Applicant to detention for a life term, commencing on 22 June 2022, under s 269O(1)(b)(i) of the Criminal Law Consolidation Act (SA).[36]
2. On 16 August 2024, Mr Rahimi was served with a "Notice of Intention to consider cancellation of visa under s501(2) of the Migration Act 1958".[37]
3. On 24 September 2024, Dr Megan Ferris, a Consultant Forensic Psychiatrist at James Nash House prepared a report which states:

"Although there have been objective improvements in Mr Rahimi's mental state since his admission to James Nash House in 2022 and commencement on antipsychotic medications, more recently his mental state has largely remained unchanged.

At this stage, his treatment plan continues in a multidisciplinary inpatient setting and there are no current plans to seek variation of his Supervision Order for transitions to the community. He continues to require inpatient treatment, given his ongoing psychotic symptoms and cognitive dysfunction and poor insight into his illness. Further imaging investigations are planned to quantify possible underlying organic factors leading to cognitive impairment and he will require further intensive rehabilitation, pharmacological treatment and psychological strategies to assist in stabilisation of his mental state. Mr Rahimi has limited insight into his illness, including his past symptoms, and has a minimal understanding of the nature of the Supervision Order. There is a role for further cognitive testing in his first language, when his illness improves, to formulate strategies which would assist with further rehabilitation.

More recently, with the recent presentation of visa cancellation paperwork, there have been concerns with Mr Rahimi's cognitive capacity to complete and adequately understand the implications and possible outcomes of the visa cancellation. It has become apparent in the last week that despite assistance with Pashto interpreter, he displays significant issues with understanding, interpreting, evaluating and responding to the paperwork in a competent manner. He has displayed significant repetitive questioning about the process and has not retained information provided to him by the treating team. He continues to have similar questions and requests, despite repeat explanation with and without interpreter assistance.

It is the opinion of the team that Mr Rahimi requires urgent guardianship to oversee his participation and completion of the urgent visa paperwork. The team have significant concerns about his capacity to complete the process without assistance, and requests an urgent hearing to obtain guardianship."[38]

1. On 24 October 2024, a limited Guardianship Order was made by SACAT.[39]
2. On 20 November 2024, the Applicant was placed under a full Administration Order by SACAT.[40]
3. On 10 February 2025, Dr Megan Ferris, a Forensic Consultant Psychiatrist at James Nash House prepared a report to the SA Supreme Court which states,

"For the purpose of this report, I am currently the treating Consultant Forensic Psychiatrist for Mr Rahimi whilst he is an inpatient on the Ken O'Brien Rehabilitation Ward, James Nash House, and have been involved in his care since September 2023. In completing this report, I have been able to refer to accompanying community based notes, current inpatient notes and assessments and hospital discharge summaries, as well as utilising multidisciplinary ward rounds and having discussions with multidisciplinary team members.

The Court was last updated by an annual report from Dr Valunj and myself on 6 December 2023.

Mr Rahimi is a 39-year-old man, originally from Afghanistan, who arrived in Australia in 2014.

He was Declared Liable to Supervision in the Supreme Court of South Australia on 2 December 2021 for the charge of Murder after being unfit to stand trial and mentally incompetent at the time of the offence due to underlying Chronic Paranoid Schizophrenia. He received a limiting term of supervision for life. He is currently committed to detention at James Nash House, where he is being managed in the Ken O'Brien Rehabilitation Unit. He does not have any current transitions or leave into the community.

Mr Rahimi has a wife and five children aged between six and thirteen years who currently live in New South Wales. He also has a large family, with siblings in Germany, with many of the rest of his family living in Afghanistan.

TREATMENT THAT THE DEFENDANT HAS UNDERGONE SINCE THE LAST REPORT

Mr Rahimi has remained a patient on the Ken O'Brien East Rehabilitation Unit at James Nash House, where he has been since 2022. Since his last report, he has continued to display a superficial and impaired understanding of his diagnosis of Treatment Resistant Schizophrenia and has had difficulty with understanding that he has previously had symptoms and shown behaviours driven by his mental illness. He has continued to have difficulty understanding, explaining and interpreting his behaviour at the time of the offence and it is difficult to gain a thorough and extensive assessment of his understanding and interpretation of his underlying psychotic symptomatology.

His presentation and behaviour on the ward has remained largely unchanged over the last twelve months. There has been no overt evidence of behavioural disturbance or worrying behaviours on the ward. He remains compliant with staff direction and expectations and participates in rehabilitation groups without any incident.

The main component of Mr Rahimi's psychiatric treatment continues to be Clozapine (antipsychotic medication, the gold standard treatment for Treatment Resistant Schizophrenia). His Clozapine dose was last increased in late 2023 with some mild improvement in his mental state. Since that time, he has remained compliant with this oral medication, despite having significant hypersalivation as a side effect of this medication. He was commenced on Amisulpride (another antipsychotic medication) in March 2023 to augment the effects of Clozapine and it was last increased in November 2023. Mr Rahimi continues to remain on these two medications under the conditions of his licence, and it is predicted that he will remain on them in the long-term, to provide stability of his mental state. At the time of writing, Mr Rahimi remains on Clozapine at a dose of 100 mg mane and 400 mg nocte, Amisulpride 600 mg bd and Sodium Valproate 500 mg bd (commenced due to high level Clozapine levels to act as seizure prophylaxis). It is noted that in the last 12 months Mr Rahimi has not required any additional medications (prn medications) for any agitation, behavioural disturbance or irritability.

His insight into his chronic mental illness has remained poor, which is thought to be due to cultural issues, language difficulties, his underlying Chronic Paranoid Schizophrenia and problems with insight. He has been unable to reflect if the antipsychotics have had any effects on the symptoms and although his mental state has remained stable, it is expected that he has had a long period of untreated psychosis prior to his offence. It is felt that he will require many years of ongoing inpatient treatment with both biological and psychological strategies to facilitate his rehabilitation and be able to more adequately assess his prognosis and risk.

Mr Rahimi has been seen to have varying levels of engagement in the rehabilitation groups and exercises that exist on the ward, though appears to be more motivated in recent months. At times he has displayed negative symptoms of Schizophrenia with some amotivation, but more recently, there has been some improvement, and he has been partaking in regular volleyball sessions, been attending the ward gym and walking on the internal walking track outside the Ken O'Brien Unit and enjoying music, sensory and ward based groups.

Notably, Mr Rahimi had a visit from his wife and five children in January 2024, after not having seen his family for five years. They came and visited him on a few occasions in James Nash House where he spoke to them in the gym, had photos with his children and interacted in a supervised environment. It was noted that he enjoyed these interactions, though was somewhat reserved in his interactions with his children, understandably, as he had not seen them for a while. It was observed that interactions between him and his wife were somewhat strained, though polite. It was noted that after this visit from his family, Mr Rahimi had a period of a few weeks where he was noted to be slightly more aroused, pacing the ward and requesting increased contact with his family and inquiring about funds that had been utilised for his visit. He was supported with supportive psychotherapy by ward staff and his mental state returned to baseline a few weeks later.

Since that time, Mr Rahimi has continued to have fortnightly Skype calls with his wife and children. These continue to be monitored by an interpreter, due to previous threats towards his wife when they were not monitored. By all accounts, the interactions appear to be pleasant and polite with no evidence of any further threats, irritability or arguments. He continues to request to have more frequent (weekly) contact with his family, though this has been declined by his wife, who feels that once a fortnight is sufficient. In addition, he has weekly contact with his family in Afghanistan, often talking to his parents and sometimes his siblings, and he has more recently requested increased contact with his brother in Germany via Skype.

It is noted that in March 2024, Mr Rahimi participated in Ramadan celebration. It is noted he had tried completing this on a previous occasion and not managed to sustain it, though it is noted that he did complete Ramadan in March 2024.

In August 2024, Mr Rahimi was served with paperwork of a "Notice of Intention to consider cancellation of visa under s501(2) of the Migration Act 1958". This was a surprise to the treating team and his lawyer, as it was unexpected. Mr Rahimi was noted to have significant difficulties understanding the paperwork and asking intently if he could return to Afghanistan, where he intended to explain his case to the Taliban and return to live with his family.

There had been longstanding concerns that Mr Rahimi may have possible underlying comorbid cognitive impairment subsequent to a head injury in 2011 and due to his long period of untreated psychosis. Testing in June 2023 through bedside cognitive testing showed clear deficits in the frontal region of the brain with impairment noted with abstract reasoning, attention and programming. It was felt that these were consistent with the clinical impression of a Treatment Resistant Schizophrenia. Repeatable battery for the assessment of neuropsychological status (RBANS) was completed in August 2023, but due to complicating factors including visual impairment, presumed ongoing psychotic symptoms, language difficulties and suspected malingering, it was difficult to interpret some of the results. It was recommended for a reassessment at a later stage when his mental state had stabilised, to consider completing it in his first language or with an interpreter.

Attempts at formal brain imaging using MRI is incomplete, due to the noted foreign metal particles still present in his eye, hence the treating team attempted on two occasions in 2024 to obtain alternative imaging of his brain (via SPECT scan). Both of these scans had to be aborted, due to him suffering significant claustrophobia symptoms in the machine. Plans are in place to do some intensive psychological work with Mr Rahimi to attempt to assist him with his anxiety within the SPECT machine so as the scan can be completed. It is suspected that there may be some organic structural abnormalities that may be contributing to his cognitive issues and the treating team are continuing to investigate.

More recently, with the presentation of visa cancellation paperwork, there have been concerns with Mr Rahimi's cognitive capacity to complete and adequately understand the implications and possible outcomes of the visa cancellation. It has become apparent that despite the assistance with Pashto interpreter, he displays significant issues with understanding, interpreting, evaluating and responding to the paperwork in a competent manner. He displayed significant repetitive questioning about the process and was not retaining information provided to him by the treating team with and without interpreter assistance.

As a consequence of this concern by the treating team, the treating team applied for urgent guardianship to oversee his participation and completion of his visa paperwork. There were concerns about his capacity to complete the process without assistance and understand the decision-specific information, including the consequences of making an informed decision and then communicating the decision.

Contact was made with the DPP and Legal Aid for him to be provided with lawyers to assist him with this migration deportation paperwork. Meetings with lawyers in September 2024 indicated that there were no similar cases in South Australia that they were aware of regarding a declared forensic patient under supervision for life being served with similar visa and possible deportation paperwork. Time extensions were given for his visa paperwork and a hearing was held in November 2024 where Mr Rahimi was placed under guardianship powers. Subsequently, due to the complexity of the case, the public trustee requested that in addition, Mr Rahimi be placed under Administration Order powers, so that his guardian could work together with the Public Trustee in his legal matters and liaise with the migration lawyers on his behalf. He was placed under an Administration Order in November 2024 and further liaison occurred between his guardian, the Public Trustee and his migration lawyers in completing and sending the relevant documentation back to the Federal departments. The treating team has not heard any further details since that time and are waiting to hear an outcome.

As a consequence of these ongoing concerns about his cognitive capacity, it was felt that it was suitable to complete repeat neuropsychological testing. Further discussion with senior neuropsychologist indicated that this was best done by a male psychologist with an interpreter present so that the results were more robust. Mr Rahimi had repeat neuropsychological testing in early February 2025 and we are currently awaiting the formalised results.

In addition, a functional occupational therapy assessment was completed in January 2025. Initial review of results indicates that there are significant functional impairments, though the formalised testing results are still being compiled.

ANY CHANGES TO THE PROGNOSIS OF THE DEFENDANT'S CONDITION AND TREATMENT PLAN FOR MANAGING THE CONDITION

Mr Rahimi has Chronic Treatment Resistant Paranoid Schizophrenia. He is currently stable with no evidence of deterioration in his mental state nor significant improvement in his presentation over the last twelve months. He remains on Clozapine (the gold standard treatment) and although there has been no overt evidence of ongoing positive psychotic symptoms, he suffers from some other negative symptoms of Schizophrenia including amotivation and blunting.

More recently, it has become more evident that Mr Rahimi suffers from significant comorbid cognitive impairment. This is currently being further investigated by repeat neuropsychological assessment and functional occupational therapy assessment. In addition, attempts have been made on two occasions for organic workup by way of SPECT scan, which has had to be aborted due to his underlying anxiety in confined spaces. It became more readily apparent when he was served with visa cancellation paperwork in August 2024, that there were significant difficulties with his capacity to understand these documents and subsequently Mr Rahimi has been placed under guardianship and an administration order to assist him with legal requirements. His application regarding the cancellation of his visa and possible deportation has been sent back to the Federal departments and we are still awaiting further information.

He remains compliant with his medication and there has been no evidence of behavioural disturbance on the ward or irritability. He complies with all requests from staff. He continues to remain compliant with his medications and tolerates side effects, but is ambivalent about whether they are assisting with his previous symptomatology. He continues to engage in the psychosocial rehabilitation on the ward. Recent investigations, both by neuropsychology and occupational therapy, appear to confirm underlying cognitive impairment and functional impairments and understanding these and planning his rehabilitation with this in mind is going to be crucial moving forward. Overall, his prognosis remains guarded due to the complexities of his presentation and awaited further assessments.

He has asked repetitively for transitions, but it is felt that until the team have a further understanding of his cognitive difficulties, together with an openness about his insight and understanding into his prior psychotic symptoms, his transitions have not been started. More recently, his concern has been about possible deportation and a request to go back to Afghanistan, with no understanding or capacity to understand the consequences of that decision.

He continues to have fortnightly contact with his wife, with an interpreter present, and has weekly contact with his family in Afghanistan. His wife and children's visit to see him after five years of not being in contact went reasonably well, though it was noted that he was somewhat aroused in the week or two following this though did not have any significant behaviour disturbance.

The ongoing treatment plan includes ongoing compliance with antipsychotic medications with regular testing to confirm compliance and levels, awaiting further neuropsychological updated assessment and occupational therapy assessment, continue to engagement in multidisciplinary rehabilitation groups. Further work is going to be done regarding his insight into his offence with psychotherapy sessions prior to any application being made for any transitions."[41]

1. On 14 October 2025, Dr Cassie Smith, a Consultant Forensic Psychiatrist at James Nash House prepared a report to the SA Supreme Court prepared a report which states,

"For the purpose of this report, I am currently the treating Consultant Forensic Psychiatrist for Mr Rahimi whilst he is an inpatient on the Tarnanthi forensic ward located on Glenside campus and have been involved in his care since March 2025.

The Court was last updated by an annual report from Dr Ferris in February 2025.

Mr Rahimi is a 39-year-old man, originally from Afghanistan, who arrived in Australia in 2014.

He was Declared Liable to Supervision in the Supreme Court of South Australia on 2 December 2021 for the charge of Murder after being unfit to stand trial and mentally incompetent at the time of the offence due to underlying Chronic Paranoid Schizophrenia. He received a limiting term of supervision for life. He is currently committed to detention, where he is being managed in the Tarnanthi forensic unit located at Glenside campus. He does not have any current transitions or leave into the community.

Mr Rahimi has a wife and five children aged between six and thirteen years who currently live in New South Wales. He also has a large family, with siblings in Germany, with many of the rest of his family living in Afghanistan. He is under a full guardianship and administration orders.

TREATMENT THAT THE DEFENDANT HAS UNDERGONE SINCE THE LAST REPORT

Mr Rahimi has remained a patient was transferred to Tarnanthi ward in March 2025 from the Ken O'Brien East Rehabilitation Unit at James Nash House, where he has been since 2022. There has been no change in mental state since his last psychiatric report, he continues to display a superficial and impaired understanding of his diagnosis of Treatment Resistant Schizophrenia. He has remained settled on the ward and is compliant with requests. He continuously seeks reassurance, often approaching multiple staff with the same request, seeking reassurance. It is thought this is a result of his cognitive impairment. There have been no behaviours of concern. He remains compliant with staff direction and expectations and participates superficially in rehabilitation groups without any incident.

The main component of Mr Rahimi's psychiatric treatment continues to be Clozapine (antipsychotic medication, the gold standard treatment for Treatment Resistant Schizophrenia). At the time of writing, Mr Rahimi remains on Clozapine at a dose of 100 mg mane and 350 mg nocte, Amisulpride 600 mg bd and Sodium File Path: Valproate 500 mg bd (commenced due to high level Clozapine levels to act as seizure prophylaxis).

Since the last report, in August 2025, Mr Rahimi's wife advised the treating team and Mr Rahimi that she wishes to file for divorce. She has had no contact with him since August and he has been unable to access contact with his children since this time (usually would speak with his wife and children on a fortnightly basis). He continues to have weekly contact with his family in Afghanistan, often talking to his parents and sometimes his siblings. Mr Rahimi's wife (along with settlement, domestic violence support workers and her lawyer) has been extremely concerned about her and her family's safety after the divorce announcement (Mr Rahimi threatened to kill her when she expressed a wish to divorce him in 2023). The treating team have had several conversations with Mr Rahimi about the need to respect her decision, not to make threats and to ensure that his family do not approach his wife's family in Afghanistan to force her to change her mind. Mr Rahimi has repeatedly said he will refuse to sign the paperwork and will not approve the divorce. His family have informed him that his wife's father has told Mr Rahimi's family that he supports his daughter's decision and will not convince her to remain in the marriage. Mr Rahimi is yet to receive paperwork, however, when this arrives, the public trustee will seek crown solicitor advice as to the best way to proceed given Mr Rahimi is under a full guardianship and administration order. Legal Services SA have refused to provide representation for Mr Rahimi given the matter is to be heard in a New South Wales Court.

When his wife announced her intent to divorce, Mr Rahimi told her he would kill himself if she went through with the divorce, and for this reason, he underwent a two-week period of continuous observation 24 hours a day. However, he has since explained that he has no intent to kill or harm himself and that he only made this threat to stop her from going through with the divorce. Since the divorce announcement, Mr Rahimi has been understandably stressed and has requested additional medication to get to sleep at night, however, his mental state, including psychotic illness and mood has remained remarkably stable.

As Dr Ferris discussed in the last annual report, there have been longstanding concerns that Mr Rahimi may have possible underlying comorbid cognitive impairment subsequent to a penetrating eye and head injury in 2011 and due to his long period of untreated psychosis. Bedside cognitive testing in June 2023 showed clear deficits in the frontal region of the brain with impairment noted with abstract reasoning, attention and programming. It was felt that these were consistent with the clinical impression of a Treatment Resistant Schizophrenia. Repeatable battery for the assessment of neuropsychological status (RBANS) was completed in August 2023, but due to complicating factors including visual impairment, presumed ongoing psychotic symptoms, language difficulties and suspected malingering, it was difficult to interpret some of the results. It was recommended for a reassessment at a later stage when his mental state had stabilised, to consider completing it in his first language or with an interpreter.

In February 2025, Mr Rahimi underwent repeat cognitive testing with a psychologist who undertook the assessment with an appropriate interpreter. The results of the repeat testing were largely similar to the initial testing. He demonstrated problems with retaining and recalling information, executive functioning, attention and processing speed. His memory deficits are a specific concern for Mr Rahimi.

Attempts at formal brain imaging using MRI is incomplete, due to the noted foreign metal particles still present in his eye, hence the treating team in the Ken O'Brien Ward attempted on two occasions in 2024 to obtain alternative imaging of his brain (via SPECT scan). Both scans had to be aborted, due to him suffering significant claustrophobia symptoms in the machine. It is suspected that there may be some organic structural abnormalities that may be contributing to his cognitive issues and the treating team are continuing to investigate. Since transferring to Tarnanthi ward, he has had two additional attempts at obtaining the brain scan, however, he aborted both attempts prematurely and no further progress has been made to obtain a SPECT scan.

In addition, a functional occupational therapy assessment was completed in January 2025 results indicate that Mr Rahimi presents with significant barriers with cognition, communication skills and motivation which limit his occupational performance. As a result, Mr Rahimi presents with significant functional impairment and currently requires daily support to manage all activities of daily living including self-care and domestic duties safely and adequately. It is the opinion of the occupational therapist that Mr Rahimi will require an extended period of inpatient rehabilitation and significant support to work towards eventual re-integration into the community. In the long term, Mr Rahimi will require significant support to live in the community via the NDIS.

ANY CHANGES TO THE PROGNOSIS OF THE DEFENDANT'S CONDITION AND TREATMENT PLAN FOR MANAGING THE CONDITION

Mr Rahimi has Chronic Treatment Resistant Paranoid Schizophrenia. Recent investigations, both by neuropsychology and occupational therapy, confirm underlying cognitive impairment and functional impairments. He is currently stable with no evidence of deterioration in his mental state nor significant improvement in his presentation over the last twelve months. He remains on Clozapine (the gold standard treatment) and although there has been no overt evidence of ongoing positive psychotic symptoms, he suffers from some other negative symptoms of Schizophrenia including amotivation, poor self-care, cognitive deficits and blunting. Overall, his prognosis remains guarded due to the complexities of his presentation.

The ongoing treatment plan includes ongoing compliance with antipsychotic medications with regular testing to confirm compliance and levels and continue to engagement in multidisciplinary rehabilitation groups. His mental state will be monitored closely during the divorce, and he will receive ongoing psychological input. Further work is going to be done regarding his insight into his offence with psychotherapy sessions prior to any applications being made for any transitions.

I trust that his report is of assistance to the Court. I am happy to provide further clarification should it be required."[42]

1. On 23 October 2025, the Administration Order was reviewed.[43]
2. On 12 November 2025, the Applicant was given notice by the Respondent of intention to consider cancellation of the Visa under s 501(2) of the Act.[44]
3. On 5 January 2026, the Respondent decided to cancel the Visa. The Applicant was advised by letter dated 7 January 2026.[45]
4. On 19 December 2025, the Applicant's wife filed an application for divorce.[46]
5. On 21 January 2026, the Applicant was served with divorce proceedings.[47]
6. On 10 February 2026, Dr Cassie Smith, a Consultant Forensic Psychiatrist at the SA Forensic Mental Health Service produced a report to the SA Crown Solicitor, which states,

1. Please advise the risk of Mr Rahimi's re-offending if there is continued supervision for his lifetime of Mr Rahimi by Forensic Mental Health Service staff, allied to Mr Rahimi's lifetime compliance with his medication regime.
2. Please advise whether there will be further assessment of Mr Rahimi's frontal lobe injury.
3. Does Mr Rahimi's frontal lobe injury combined with his schizophrenia make his return to community contact, less likely?
4. What is the significance from a clinical point of view of Mr Rahimi's maintaining a good relationship with his children, even if this is only by telephone or video call?
5. Otherwise, would you confirm the matters that Dr Ferris set out in her email to Ms Vaughan on 11 November 2024 are still accurate? If not, can you expand on the current state?"

Mr Rahimi is a 40-year-old man, originally from Afghanistan, who arrived in Australia in 2014. He was previously employed by the Australian Defence Force as an interpreter in Afghanistan.

He was Declared Liable to Supervision in the Supreme Court of South Australia on 2 December 2021 for the charge of Murder after being unfit to stand trial and mentally incompetent at the time of the offence due to underlying Chronic Paranoid Schizophrenia. He received a limiting term of supervision for life. He is currently committed to detention, where he is being managed in the Tarnanthi forensic unit located at Glenside campus. He does not have any current transitions or leave into the community.

Mr Rahimi has a wife (who has initiated divorce proceedings) and five children who currently live in New South Wales. He has a large family with most of these family members living in Afghanistan. He is under a full guardianship and administration orders.

1. Please advise the risk of Mr Rahimi's re-offending if there is continued supervision for his lifetime of Mr Rahimi by Forensic Mental Health Service staff, allied to Mr Rahimi's lifetime compliance with his medication regime.

Since initiating antipsychotic medication Clozapine, the gold standard for treatment resistant schizophrenia, Mr Rahimi's mental state has remained stable, and he has not experienced any active psychotic symptoms**. If Mr Rahimi remains complaint with this medication in addition to close monitoring and supervision from a forensic psychiatrist, clozapine clinic and the forensic service, his risk of reoffending will be low.**

2. Please advise whether there will be further assessment of Mr Rahimi's frontal lobe injury.

The treating team would like to undertake formal brain imaging as it is suspected that the brain injury may be contributing to his cognitive deficits (clear deficits in the frontal region of the brain with impairment noted with abstract reasoning, attention, and programming). Mr Rahimi is unable to undergo an MRI due to the foreign metal particles still present in his eye from the original penetrating injury, and he is therefore required to undergo alternate imaging (Single Photon Emission Computed Tomography- SPECT scan). Unfortunately, this imaging requires Mr Rahimi to lay still for periods of 15 minutes in a very narrow and noisy machine. Mr Rahimi has attempted to undertake this scan on four separate occasions with oral sedation. All scans had to be aborted, due to him suffering significant claustrophobia symptoms in the machine. Mr Rahimi may have to undergo the scan under a heavier sedation, monitored by an anaesthetist.

3. Does Mr Rahimi's frontal lobe injury combined with his schizophrenia make his return to community contact, less likely?

The combination of Mr Rahimi's brain injury and schizophrenia does not make it less likely that he will return to the community. The brain injury needs to be completely understood through structural brain imaging and complex neuropsychological and occupational functional assessments. Once understood, functional and cognitive deficits can be compensated for by support through the National Insurance Disability Scheme**. It is unlikely Mr Rahimi will be transitioning into a community environment within the next 5 years.**

4. What is the significance from a clinical point of view of Mr Rahimi's maintaining a good relationship with his children, even if this is only by telephone or video call?

Maintaining contact with his children is very important to Mr Rahimi, particularly from a psychological point of view. This has a positive impact on his mood and provides him with hope for the future. He has missed his regular fortnightly phone/video calls with his children which were stopped abruptly when his wife stopped communication several months ago. He wishes for these calls to be reinstated if the children are amenable.

5. Otherwise, would you confirm the matters that Dr Ferris set out in her email to Ms Vaughan on 11 November 2024 are still accurate? If not, can you expand on the current state?

The matters Dr Ferris set out in her email to Ms Vaughan on 11 November 2024 are still accurate. I would add that since November 2024, his mental state has remained stable, and he has not experienced psychotic symptoms. He continues to have difficulties with insight into his cognitive and functional limitations. He requires further assessment of his brain injury and a further period of rehabilitation within James Nash House. Since Dr Ferris' email, Mr Rahimi has also undergone cognitive assessment and we now have better understanding of the cognitive impairment."[48]

1. On 11 February 2026, the Applicant filed a document with the Federal Circuit and Family Court, resisting his wife's divorce application.[49]
2. On 23 March 2026, the parties filed a statement of agreed facts. This has been marked as Exhibit 2.
3. The Applicant's criminal history, as recorded by the ACIC, is annexed hereto and marked "B".[50] As previously observed, the Applicant has, by reason of mental impairment, not been convicted of any serious criminal offence.

1. As discussed at the outset, the Tribunal finds that the Applicant does not pass the character test.
2. The issue before the Tribunal is whether the discretion to cancel Visa under s501(2) should be exercised.

Should the discretion to cancel Visa under s501(2) should be exercised?

1. In considering whether the discretion to cancel Visa under s501(2) should be exercised, the Tribunal is bound by s 499(2A) 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 ("the Direction") has application.[51]
2. For the purposes of deciding whether to refuse or cancel a non-citizen's visa or whether or not to revoke the mandatory cancellation of a non-citizen's visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker's application of the considerations identified in Part 2 where relevant to the decision.
3. The principles that are found in paragraph 5.2 of the Direction may be briefly stated 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 non-citizen poses a measurable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, 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.

(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 noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

1. Paragraph 6 of the Direction provides that:

Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

1. Paragraph 7(2) of the Direction requires that protection of the Australian community (Primary Consideration 8.1), is generally to be given greater weight than other primary considerations.
2. 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.

3. Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:

a) Legal consequence of the decision; > > b) extent of impediments if removed; > > c) impact on Australian business interests

4. I note the importance of the Other Considerations being "other" considerations, as opposed to "secondary" considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[52]

"...Direction 65 [now Direction 110] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply."[53]

1. The Applicant's history is discussed in some detail above.

Primary Consideration 1 - Protection of The Australian Community

1. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the safety of the Australian community is the highest priority of the Australian Government. To that end, the 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.
2. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

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.

The Nature and Seriousness of the Applicant's Conduct to Date

1. 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 a number of factors. I will now turn to addressing these considerations.
2. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
3. The Tribunal is required to consider not only criminal convictions, but also very serious conduct.
4. The Applicant has not been convicted of a criminal offence by reason of his mental impairment.
5. The Tribunal is however, in possession of factual findings made by Bampton J, in the SA Supreme Court.[54] These are not disputed.[55]
6. Those findings are set out in some detail above.
7. I accept Bampton J's findings as setting out the factual background to the Applicant's relevant conduct in this case. They are shocking.
8. It is difficult to imagine conduct that would be regarded as more serious.
9. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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.

10. The Applicant does not pass the character test as set out above.
11. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant's offending.
12. The Applicant has not been convicted of a crime or sentenced to a term of imprisonment by reason of his mental impairment. He has however been detained indefinitely, at least for the time being, in a forensic mental health facility.
13. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the impact of the offending on any victims 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;
14. The Applicant's conduct must have had devastating consequences for the family and friends of his victim.
15. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen's offending and whether there is any trend of increasing seriousness.
16. This is not relevant.
17. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant's repeated offending.
18. This is not relevant.
19. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
20. This is not relevant.
21. Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned 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).
22. This is not relevant.
23. Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
24. This is not relevant.
25. I do not consider factors (e) to (i) of paragraph 8.1.1(1) of the Direction apply to the Applicant's offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, very heavily in favour of exercising the discretion to cancel the Visa.

The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

1. Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2. Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; > > 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 their most recent offence; and > > > > 1. 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.

Nature of harm should the Applicant engage in further criminal or other serious conduct

1. Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community's tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable (Paragraph 8.1.2(1)).
2. The Applicant suffers from treatment resistant, chronic paranoid schizophrenia.[56]
3. The nature of the harm that the Applicant may cause, based on his past conduct, is so serious that any risk of it being repeated is totally unacceptable.

Likelihood of engaging in further criminal or other serious conduct

1. In this case, the Applicant is presently detained in a mental health facility at Glenside, having previously been at James Nash House, prior to March 2025.[57]
2. I accept that he is continuously supervised in that highly controlled environment and that the prospect of him causing serious harm to others there, is accordingly reduced.
3. I note that the most recent psychiatric report assesses his risk of reoffending as being low "if (the Applicant) remains compliant with his medication in addition to close monitoring and supervision from a forensic psychiatrist."[58]
4. Although he is subject to supervision for a lifetime limiting term, it is possible that the Applicant may be returned to the community, albeit with supervision, at some time in the future. Indeed, it is acknowledged by the Applicant that the "ultimate goal... is to have complete access to the community with consistent check ins with a psychiatrist".[59] The exact circumstances in which this might happen are impossible to anticipate at this time.[60]
5. In this context, I note s 269 P of the Criminal Law Consolidation Act (1935) (SA) which states:

"(1) At any time during the limiting term, the court may, on the application of the Crown, the defendant, Parole Board, the Public Advocate, the Commissioner for Victims' Rights or another person with a proper interest in the matter, vary or revoke a supervision order.

(1a) On an application under subsection (1), the court may do 1 or more of the following:

(a) confirm the present terms of the supervision order;

(b) vary the terms of the order;

(c) revoke the order and make in substitution for the order any other order that the court might have made under this Subdivision in the first instance;

(d) make any further order or direction that may be appropriate in the circumstances.

(2) If the court refuses an application by or on behalf of a defendant for variation or revocation of a supervision order, a later application for variation or revocation of the order cannot be made by or on behalf of the defendant for six months or such greater or lesser period as the court may direct on refusing the application."

1. The fact that the Applicant may conduct himself in an appropriate manner and remain compliant with his medication regime in James Nash House, is in my view, of little assistance to the assessment of how he may behave, if he were to be returned to our community. Compliance within the confines of a forensic mental health facility, where the Applicant is under 24-hour supervision in a controlled environment, is of little help with assessing how a man with the Applicant's serious mental health issues, would behave in a less controlled environment.
2. If the Applicant were to become non-compliant with his medication regime in the community for example, the risk of reoffending would seriously increase. According to Dr Smith, other residents and carers may be placed at risk. If he were to abscond, similar concerns would arise.
3. I am satisfied that based on the available evidence, there remains at least a moderate risk that the Applicant could engage in totally unacceptable conduct, particularly if he were ever to be allowed back into our community.
4. I am satisfied that this remains the case, whatever supervision regime may be put in place.
5. Given the potential gravity of any further offending, I am also satisfied that this is a case where the "...conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable (Paragraph 8.1.2(1))".

1. Primary consideration number one weighs very heavily in favour of exercising the discretion to cancel Visa.

(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

(2) This consideration is relevant in circumstances where:

a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

(3) In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;

b) the cumulative effect of repeated acts of family violence;

c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:

1. the extent to which the person accepts responsibility for their family violence related conduct;

2. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

3. efforts to address factors which contributed to their conduct; and

d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non- citizen's migration status, should the non-citizen engage in further acts of family violence.

1. The materials before the Tribunal suggest that the Applicant made a threat to kill his wife in September 2022.[61]
2. This is conceded by the Applicant in his SOFIC;

"It is conceded that the Applicant has made threats to kill his wife. In the context of his detention and the lack of any evidence that such threats could be carried out, either by him or anyone on his behalf, it is submitted that such threats are not indicative of character failure and explicable given his background, medical diagnosis and indefinite detention. This factual finding should be accorded little weight ."[62]

1. Making a threat of this kind is certainly captured within the definition of "family violence".[63]
2. The fact that the Applicant may be presently unable to act upon any such threat does not stop such a threat being very serious.
3. There is also a suggestion that the Applicant has also been applying pressure to his wife to "move to Germany to be nearer other members of his family".[64]
4. This may well constitute behaviour amounting to "coercion or control".[65]
5. It is only necessary to establish conduct in this context. No conviction is required.
6. I also note that the Applicant still does not accept that he is separated from his wife and that he has opposed her divorce application.

1. Primary Consideration number 2 weighs in favour of exercising the discretion to cancel Visa.

(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
2. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. The Applicant has been in Australia since 2014.[66] He has now been here for almost 12 years.
2. The Applicant came here as an adult aged 28.
3. All his formative years were spent in Afghanistan.
4. On 17 December 2018, the Applicant committed "the objective elements of murder"[67]. He had been here for about 4 1/2 years at the time.[68] This was the subject of findings by Bampton J.[69]
5. The Applicant was employed for a time in construction and as an Uber driver, between 2015 and 2018.[70]
6. The Applicant has contributed to the Australian community by working for this period, but this contribution has since been dwarfed by the serious consequences of his conduct on 17 December 2018 and the continuing burden that he has placed on our criminal justice and forensic mental health systems.
7. The Applicant's wife and 5 children, all of whom are under 18, now live in Australia.
8. The Children are discussed in more detail in the context of Primary Consideration 4. I refer to that discussion.
9. It seems that the Applicant has been separated from his wife and children since about September of 2018. The exact timing of this separation is in some doubt, based on the material before the Tribunal.
10. According to Dr Smith, the Applicant's wife and children remained in Afghanistan when he returned to Australia in September 2018. They came back to Australia in August/September 2021. By that time, the Applicant had already been detained for almost 3 years.
11. It seems that the Applicant did not see his wife and children at all between September 2018 and January 2024.[71]
12. Since that time, he has been primarily in contact with them electronically.[72] I refer to Dr Smith's statement set out above.
13. The Applicant's wife has commenced divorce proceedings.[73]
14. The Applicant has resisted this application.[74]
15. The Applicant says in relation to this and Primary Consideration 4:

"I add to the Applicant's SOFIC that on 11 March 2026 I applied on behalf of the Applicant to the SA Legal Services Commission for legal aid for a contact regime to be re-established between the Applicant and his children. I say the past contact between the Applicant and his children, and his efforts to re-establish it after it was ceased by actions of his wife, should carry significant weight. Maintenance of the previous videocall contact is likely to be much more valuable with the Applicant and the children in the same country."[75]

1. Given the Applicant's intractable illness and his poor prognosis, I do not anticipate that the Applicant may never have any more than intermittent, mainly electronic contact with his family and children in Australia, even if the Visa is restored.
2. If the Respondent's decision is affirmed, there will be little if any practical consequence to the Applicant or his family, at least for the foreseeable future.
3. They could maintain electronic communications with the Applicant, wherever he may be.
4. It seems that the Applicant's wife has no desire to engage with him. Her only concern is to accommodate her children's wishes. This is discussed below.

Primary Consideration 4: The best interests of minor children in Australia

1. Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
2. Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); > > b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; > > c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; > > d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; > > e) whether there are other persons who already fulfil a parental role in relation to the child; > > f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); > > g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; > > h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

(a) Child A, a daughter, aged 14.

(b) Child B, a daughter aged 13.

(c) Child C, a son, aged 12

(d) Child D, a son, aged 10.

(e) Child E, a son, aged 8.

1. The Applicant has not had a direct parental relationship with the children, since September of 2018.
2. Between September 2018 and August/September 2021, the Applicant's children were in Afghanistan.
3. He has had limited contact with them since then, mainly by electronic means, with lengthy periods without contact.
4. For all practical purposes, the children have been supported by their mother since 2018.[76]
5. The Applicant will remain in Australia for the foreseeable future, whatever this Tribunal decides.
6. It is unclear when, if, or under what conditions he may be returned to our community. For the foreseeable future, the status quo seems most likely to continue.
7. If the current arrangements are changed by the SA Supreme Court, and the Visa is not restored, the Respondent may review its position. The Applicant may seek protection, or the Applicant may elect to return to Afghanistan.
8. It follows that the children's ongoing contact with the Applicant will be primarily electronic, with the possibility of occasional in person visits.
9. There is little evidence concerning the specific implications for each of the children, if the Visa is not restored to the Applicant.
10. I do note that the children have not had a normal parental relationship with the Applicant for in excess of 7 years. Given their ages, this represents a considerable proportion of each child's life. This is especially so of Child D and Child E, who would have little if any recollection of living with the Applicant.
11. I again note that the Applicant says:

"...on 11 March 2026 I applied on behalf of the Applicant to the SA Legal Services Commission for legal aid for a contact regime to be re-established between the Applicant and his children. I say the past contact between the Applicant and his children, and his efforts to re-establish it after it was ceased by actions of his wife, should carry significant weight. Maintenance of the previous videocall contact is likely to be much more valuable with the Applicant and the children in the same country."[77]

1. Given the Applicant's intractable illness and his poor prognosis, I do not anticipate that the Applicant will ever have any more than intermittent, mainly electronic contact with his family and children in Australia, whether the Visa is restored, or not.
2. I accept that it may be very slightly in the interests of the Applicant's children for the Visa to be restored.

1. Having regard to all of the above, Primary Consideration 4 weighs very slightly against exercising the discretion to cancel Visa.

Primary Consideration 5 - The Expectations of The Australian Community

1. In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
2. Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences 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:

(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.

1. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
2. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

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 above, without independently assessing the community's expectations in the particular case.

3. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant's circumstances or evidence about those expectations. The Tribunal is to be guided by the Government's views as to the expectations of the Australian community, which are to be found in the Direction.[78]

1. Paragraph 8.5 contains a statement of the Government's views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

Analysis - Allocation of Weight to Primary Consideration 5

1. Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
   1. The decision of Bampton J set out above.[79]
   2. The forensic mental health reports available to the Tribunal.
   3. The evidence given by Dr Smith.
   4. Other matters set out above.

1. Primary consideration 5 weighs very heavily in favour of exercising the discretion to cancel Visa.
2. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.

1. The Applicant is not the subject of a protection finding.
2. The Applicant has made statements, which if accepted, may suggesting that he has a possible protection claim. These claims relate to possible reprisals for his past involvement with Australian and US forces.[80]
3. There is presently insufficient evidence before the Tribunal to enable any proper assessment of the merits of such a claim, to be made.
4. I accept that in general terms, the claims that the Applicant has made, may, if established, constitute grounds for a protection finding.
5. If the Applicant ever wishes to pursue such a claim, he would not be removed from Australia, pending its determination.
6. As discussed earlier, the Applicant is not at risk of being involuntarily removed for the foreseeable future whatever this Tribunal may decide, though such a possibility may exist.
7. A protection claim, if made, would be assessed in due course, on its merits.
8. Accordingly, I defer any consideration of the Applicant's protection claims.[81]
9. I do accept that if the Applicant is not successful in these proceedings, he will be potentially liable for detention and removal from Australia. This would be an adverse outcome, but one common to all unsuccessful applicants in similar proceedings.
10. As already observed, in this case, that would be contingent upon the occurrence of many future events.
11. I note again that the Respondent says that:

"In the event the Tribunal affirms the decision, the applicant will remain detained in a psychiatric facility pursuant to the order made by Justice Bampton on 20 June 2022 in the Supreme Court of South Australia. In the event the applicant is released from the psychiatric facility, by reason of the court order being lifted or varied, and subject to any future protection visa application, his liability for detention and possible removal will be assessed".

1. 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.

2. The Applicant's mental health is seriously impaired as discussed at length above.
3. I am satisfied that it is unlikely that the Applicant would have access to the same level of support for his mental health condition in Afghanistan, as he would in Australia.[82]

1. There are not any major language or cultural barriers.

1. There is no reason to conclude that the Applicant does not have access to the same social, medical and/or economic support, available to any other Afghan citizen in that country.

1. The Applicant has continued to have contact with his family in Afghanistan. As at 2023, this was on a weekly basis.[83]

1. The Applicant is reported as having requested to be deported to Afghanistan.[84]
2. The Applicant may experience a difficult period of readjustment in returning to life in Afghanistan.
3. I also note that the Applicant's claims regarding possible reprisals, if he were to return to Afghanistan, even if not sufficient to ground a protection claim, may be very relevant to this other consideration.[85]
4. As mentioned above, I am not satisfied on the available evidence that any such claim is established.
5. I also note that the Applicant voluntarily returned to Afghanistan between 12 September 2018 and 26 September 2018.[86]
6. I also note that records before the Tribunal, suggest that he remains willing to return to Afghanistan.[87] Given his present mental state, I am not satisfied that this intention carries significant weight.
7. Other Consideration (b) weighs against exercising the discretion to cancel Visa.

1. There was no evidence on this topic, so this consideration is neutral.

1. It is necessary to weigh up all the primary and other considerations. In doing so I have had regard to all the evidence before the Tribunal. I refer also to the detailed history and discussion set out above.
   1. Primary consideration 1 weighs heavily in favour of exercising the discretion to cancel Visa.
   2. Primary consideration 2 weighs in favour of exercising the discretion to cancel Visa.
   3. Primary consideration 3 is neutral
   4. Primary consideration 4 weighs very slightly against exercising the discretion to cancel Visa.
   5. Primary consideration 5 weighs very heavily in favour of exercising the discretion to cancel Visa.
   6. Other consideration (a) is neutral.
   7. Other consideration (b) weighs against exercising the discretion to cancel Visa.
   8. Other consideration (c) is neutral.[88]
2. I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations.
3. I am satisfied that the Applicant will remain a very serious potential risk to our community for as long as he remains here. This remains the case, notwithstanding any measures that may be put in place in the future, to manage that risk.
4. It is possible, or indeed foreseeable, that the Applicant may, if he remains here, ultimately be returned to our community, albeit under some level of supervision. In the event of this occurring, I am satisfied, given the gravity of his past conduct, that our community would be exposed to an unacceptable risk, of very serious harm.
5. The factors weighing in the Applicant's favour, such as his connections to his children in Australia and the impediments that he may suffer if he returned to Afghanistan are insufficient to displace the overwhelming priority of protection of our community from a man who has engaged in the abhorrent conduct described by Bampton J.[89]
6. Whether the Respondent's decision is affirmed or not, the Applicant will remain where he is, in the care of forensic mental health services, for the foreseeable future.
7. If the Applicant recovers sufficiently to be returned to the community at some time in the future, the Respondent may reassess its position.
8. If this happens, the Applicant may make a protection application. He may also decide to return voluntarily to Afghanistan.
9. For the foreseeable future, the decision of this Tribunal will not disturb the Applicant's current care arrangements.
10. This is a case where the protection of the Australian community is overwhelmingly engaged.
11. In my view, the proper application of the Direction weighs overwhelmingly in favour of exercising the discretion to cancel the Visa.

I certify that the preceding two hundred and thirty five (235) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

.............................[sgnd]......................................

Mr R. Lawton (Crown Solicitor's Office within the Public Trustee)

[3] HB 73-79; Statement of Agreed Facts.

[19] HB 107; Agreed Statement of Facts.

[30] HB 77-78 at [18]-[35]; Agreed Statement of Facts.

[32] See Dr Smith's statement of 27 March 2026 (above) but note HB 163.

[40] HB 94-95, 219-220, Agreed Statement of Facts.

[44] HB 102-106, Agreed Statement of Facts.

[45] HB 57-70; Agreed Statement of Facts.

[51] On 21 June 2024, the former applicable direction, Direction No. 99 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 110.

[52] [2018] FCA 594.

[78] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

[81] See Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582.