1. The Applicant is seeking a protection visa. Subsection 36(2) of section 36 of the Migration Act sets out the criteria for the protection visa. Section 36(1C)(b) of the Act relevantly provides:

A criterion for a protection visa is that the Applicant is not a person whom the Minister considers, on reasonable grounds:

(a) is a danger to Australia's security, or

(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

1. Section 36(2C)(b) largely mirrors s 36(1C), and relevantly provides:

A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if

(b) the Minister considers, on reasonable grounds, that

(i) the non-citizen is a danger to Australia's security, or

(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community

1. The term 'particularly serious crime' is defined in s 5M of the Act. It relevantly provides:

For the purpose of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if reference in that paragraph to a particularly serious crime includes a reference to a crime that consists of the commission of

(a) a serious Australian offence; or

(b) a serious foreign offence.

1. The term 'serious Australian offence' is defined in s 5 of the Act as follows:

(a) the offence:

(i) involves violence against a person; or

(ii) is a serious drug offence; or

(iii) involves serious damage to property; or

(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and

(b) the offence is punishable by:

(i) imprisonment for life; or

(ii) imprisonment for a fixed term of not less than 3 years; or

(iii) imprisonment for a maximum term of not less than 3 years.

HAS THE APPLICANT BEEN CONVICTED BY A FINAL JUDGMENT OF A PARTICULARLY SERIOUS CRIME?

1. There is no evidence before the Tribunal to suggest that the Applicant is a danger to Australia's security. There is also nothing to suggest that the Applicant has committed a serious foreign offence.
2. The full list of the Applicant's offending is set out below. For the purpose of these proceedings, the Tribunal has disregarded any offences that occurred when the Applicant was a minor and any offending for which no convictions were recorded. Relevantly, in 2013 the Applicant had been convicted of offences including

(a) Robbery while armed with dangerous weapon > > (b) Use unauthorised pistol > > (c) Fire firearm in or near public place

3. The Tribunal finds that in 2013 the Applicant had been convicted of offences resulting in a term of imprisonment exceeding 3 years. Several of these offences were punishable by imprisonment for a maximum term of not less than 3 years. Offence such as armed robbery involves violence against a person.
4. In his submission to the delegate the Applicant concedes that he has been convicted of a particularly serious crime. The Tribunal finds that the Applicant had been convicted of an offence that is punishable by imprisonment for a maximum term of not less than 3 years and an offence that involved violence against a person. The Tribunal finds that the Applicant has committed a serious Australian offence as described in s. 5 of the Act. The Tribunal finds that the Applicant is a non-citizen who has been convicted, by a final judgment, of a particularly serious crime.
5. Having found that the Applicant has committed a particularly serious crime, the Tribunal must now consider whether the Applicant is a danger to the community.

1. In WKCG[1] the relevant consideration has been identified as follows:

The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase a language of Article 33(2) of the Refugees Convention because the words are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.

2. Deputy President Tamberlin QC stated that the task for the Tribunal in answering the second question in s 36(1C)(b) as follows:

The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation achieved. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.

3. Tamberlin QC set out a test for assessing whether a person constitutes a danger to the Australian community. The test proposes consideration of the following factors:

(1) the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances;

(2) the criminal record in totality - including the extent and nature of any prior convictions and the period over which they took place;

(3) the risk of re-offending and recidivism and the likelihood of re-lapsing into crime; and

(4) any prospects of rehabilitation.

1. In DOB18[2] Logan J explained that for s 36(C)(b) to be made out, the Tribunal has to be satisfied that the Applicant 'is and will into the indefinite future be a danger, not that the person once was a danger.' Logan J stated that danger 'means present and serious risk.'
2. In KDSP[3] Bromberg J, in obiter made the following observations:

Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a "danger" to Australia - a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636, the word "danger" in s 36(1C) means "present and serious risk" (see at [83]).

3. In DMQ20[4] the Full Court identified the issue in respect of the term "danger" as follows, at [107]:

Conceptually (at least for present purposes), "danger" is a function of probability and consequence. A person will pose a 'danger' insofar as there is sufficient likelihood that he or she will engage in conduct that visits upon others a sufficient degree of harm. Both of those constituent concepts may be measured along spectra. Future conduct might be inconceivable, highly improbable, likely or certain (or any degree in between). The harm that it might visit might range from minor to severe. At issue presently is what combinations of probability and consequence should suffice to qualify as danger in the sense contemplated by s 36(1C)(b) of the Act...

Qualitatively, it is clear enough that the reference in s 36(1C)(b) of the Act to "danger" was intended to denote a prospect of harm. Given the statutory context - involving, as it does, an exception to the expectation that Australia will afford protection to refugees and others in need of it - it is likely that the Parliament intended that it should involve harm of non-trivial kinds. The likelihood - even a very high likelihood or certainty - that a person might cause others to feel anxious, offended, embarrassed, miserable or despondent, for example, is unlikely to suffice. "Danger" implies a prospect (howsoever measured) of injury (at the least), most likely of physical or psychological kinds.

When assessing the presence of danger (in the sense that the natural and ordinary meaning of that word imports), the required analysis is both quantitative (what is the level of probability that something might happen?) and qualitative (what are the consequences if it does?). They are related inquiries: a high probability of mid-level personal injury, for example, might bespeak the presence of danger no more tellingly as would a moderate or even low probability of serious injury or death... > > In its human form, then, "danger" presupposes that there should be something about a person's character or proclivities (or both) that suggests a probability and quality of harm to others that is beyond the typical consequences of routine interaction. Ordinarily, that would fall to be assessed by reference to the person's prior conduct and the likelihood that it might be repeated. A person with no history of violent offending would ordinarily be thought not to pose any danger to others, no matter that he or she might possess some real capability to inflict harm. A person with an appetite for and history of violence, on the other hand, might well be thought otherwise.

6. The Full court also rejected the submission that the term 'Australian community' refers to the community as a whole. An application for leave to the High Court to appeal the Full Court's decision in DMQ20 was dismissed.
7. In SLGS[5] the Court stated at [82-84]:

To the extent that there are differences between the construction of s 36(1C)(b) of the Migration Act favoured by Rares J in DMQ20 and the construction favoured by Thomas and Snaden JJ, it is the approach of the plurality that must be followed. In my view, their Honours held 'danger', as used in s 36(1C)(b), to be a word of ordinary English which is to be applied to all the facts and circumstances of the case and which is not susceptible of more precise definition. It would be consistent with their Honours' approach for the decision maker to consider whether the harm that will eventuate if the danger becomes a reality is non-trivial and whether it would be harm of a physical or psychological kind. It would also be consistent with that approach to consider whether the risk that the harm will eventuate goes beyond that which is contemplated in ordinary personal interactions. Both the plurality and Rares J endorsed a concept of danger that combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates. > > As to the object of the danger, it is the Australian community conceived of as the community as a whole and/or any person or persons who are part of it. > > On any view, in assessing these matters, the decision maker may consider the particularly serious crime of which the visa Applicant has been convicted and the risk that he or she will offend in that way in the future. More broadly, the risk of repetition of other past conduct may also be considered.

8. The principles set out in WKCG were said to be, at [85], 'useful, provided [these are] approached, not as a test or a mechanical checklist, but as a guide to assessing the fundamental question of fact'.
9. The Tribunal is also guided by the summary of the applicable law and principles set out by President Kyrou in NJCT v MICMA.[6]

Is the Applicant a danger to the Australian community?

1. In his written submission to the Tribunal the Applicant states that the only question for the Tribunal is whether he presents a danger to the community. The Applicant states that while past behaviour may be indicative, the assessment of danger must be prospective so that causes and motivations of past actions may be irrelevant if they are no longer present or have diminished eliminating the likelihood of future harm. The Applicant submits that the mere fact of past conviction does not automatically make the person a danger to the community. The Applicant submits that, assessing the probability of future harm and severity or seriousness if the probability eventuates, he is not a danger to the community.
2. The Minister contends that the Applicant is a danger to the community as he presents a present and serious risk to the community, having regard to the repeated and serious nature of the offending, the specific offence that constituted the particularly serious crime and the risk of recidivism. The Minister refers to the evidence in relation to the risk of recidivism and reoffending such as the history of past offending, despite several terms of imprisonment and despite being warned about the prospect of visa cancellation, the fact that offending occurred over a significant period of time and across a broad range of circumstances, the unsolved mental health issues which are directly connected to the risk of reoffending and the continued offending whilst in prison and immigration detention.
3. Being guided by the principles set out above and the factors identified in WKCG the Tribunal makes the following findings.

The seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances

4. The Applicant's criminal history is set out in the delegate's decision and the Criminal Intelligence Commission report dated 6 May 2024 which has been provided to the Tribunal. It is summarised below.

Possess offensive weapon/instrument in a place of detention

• Robbery while armed with dangerous weapon (multiple counts)

(on appeal, earlier sentenced quashed), imprisonment 5 years

• Drive while disqualified from holding a license

S10A Conviction with no other penalty: Drug to be destroyed:

• Use offensive language in / near public place / school
• Behave in offensive manner in / near public place / school

• Use unregistered registrable class of motor vehicle

• Possess Prohibited Drug
• Goods in personal custody suspected being stolen

s. 9 bond, fines

Community Service Order: 300 hours, Disqualification: 2 years. s9 bond,

• Use unregistered vehicle on road
• Use uninsured motor vehicle
• Negligent driving
• Driver state false name or address

• Drive while disqualified from holding a licence x2

• Drive with low range PCA
• Class A M/v exceed speed > 30 km/h

Drive while disqualified from holding a licence (2 counts)

• Possess prohibited drug
• Custody of knife in public place
• Goods in personal custody reasonably suspected of being stolen
• Unlicensed for class, Class C/R/LR/MR-1st offence.

• Destroy or Damage Property
• Possess Prohibited Drug (4 counts)

1. The Tribunal has had regard to the judgment of Murrell SC DCJ in relation to the armed robbery offending. The following information is recorded in relation to these offences. The Applicant and his co-offender entered a petrol station with the intention of stealing a vehicle for use in intended robbery. The Applicant approached a driver of a bus and asked for car keys, which were refused. The Applicant and his co-offender then approached another vehicle and asked for keys, which was refused. The two ran from the service station and approached another vehicle. The Applicant approached the driver with a cocked pistol, after which the driver left the car. The Applicant and his co-offenders drove away, stole number plates and attached them to the stolen car. The Applicant and others overtook a truck carrying valuable cargo and blocked its path. The Applicant fired a shot at the passenger side of the windscreen making the truck driver get out of the truck, then the Applicant shot at the ground and directed the driver to the side of the road and made him kneel. The Applicant pushed the firearm into the driver's back and when other motorists stopped their vehicles, the Applicant fired the pistol at the ground indicating for them to leave. The Applicant or his co-offender then ignited and destroyed the stolen car.
2. The Tribunal has had regard to the available statements of facts and sentencing remarks and the Applicant's declaration sworn on 19 July 2023 in which he refers to the circumstances of his offending. The Applicant submits that the 2013 robbery and property damage offences are the only ones that engages the 'danger criteria'. The Tribunal acknowledges that this may be the case, however, for the purpose of establishing the likelihood of future offending and whether the Applicant presents a danger to the community, the Tribunal considers that the entirety of the Applicant's offending is relevant.
3. The Tribunal is of the view (and the Applicant concedes, although he also denies his involvement in the 2013 offending) that the 2013 offending was serious, involving physical violence and threats of violence to others. The seriousness of the actual offending is reflected in the fact that the Applicant was given a custodial sentence, and the length of the sentence imposed. The Applicant notes that his sentence was reduced on appeal because it was found that his mental state meant he was not responsible for the possession of the firearm while the Respondent submits that this offence should not be given less weight because the Tribunal is faced with a different task than the sentencing judge. The Tribunal accepts the Respondent's submission that the assessment of criminal responsibility does not equate to the assessment, that the Tribunal's must undertake, of whether the Applicant presents a danger.
4. In considering the mitigating circumstances, the Applicant refers to his mental health and drug dependence. The Minister accepts that the Applicant's offending history occurred in the context of him suffering from mental health issues. The Tribunal accepts the evidence in the various reports from health professionals that the Applicant's mental health conditions, as well as substance abuse, and other stressors during detention, may have contributed to past offending.
5. In terms of the aggravating factors, the Respondent submits that there are a number of factors that should weigh against the Applicant, noting the circumstances of the index offending, such the fact that it involved the use of a weapon, was committed in company and against a vulnerable member of the community, resulted in emotional harm to the victim, was planned and committed for financial gain and despite past formal warnings.

The criminal record in totality - including the extent and nature of any prior convictions and the period over which they took place

6. The Respondent submits that the offending began in 1998 and continued with frequency and its seriousness has escalated, showing a disregard for the law and other members of the community and the Applicant has demonstrated disregard for authority and safety of others. The Respondent submits that the nature, extent and duration of the offending demonstrates the Applicant is a danger to the community.
7. The Tribunal finds that the Applicant has committed multiple offences spanning a period over 15 years. Some of the offending may be considered minor while other offending is very serious, such as armed robbery, assaults and reckless bodily harm. The sentences range from minimal to significant terms of imprisonment and custodial sentences reflect the seriousness of offending. The applicant states that, other than the 2013 offence, the only other violent offending occurred when he was in detention, which was the aggravating factor, and his mental health may have been affected. The Tribunal does not consider that the fact of detention, even if it did affect the applicant's mental health, justifies violence against others. As noted elsewhere, there may be any number of aggravating factors that the applicant will experience in the future. Responding to these with violence will pose a danger to the community.
8. The Respondent submits that past offending may be an indication of the future and there is limited evidence of rehabilitation. The Respondent submits that it is necessary to consider the Applicant's insight concerning the past offending and the steps he has taken to 'turn his life around' from the significant and lengthy criminal record.
9. The Tribunal finds that the Applicant has extensive prior convictions, and convictions since the commission of the 'particularly serious crime'. The Tribunal considers the past criminal conduct has been extensive and took place over a lengthy period of time. Some of the past convictions relate to serious offending and the Tribunal accepts the Minister's submission that some of the offending shows the Applicant's disregard for the safety and well-being of others (such as the driving offences and offences involving violence).

The risk of re-offending and recidivism and the likelihood of re-lapsing into crime

1. The Respondent refers to the following features of the Applicant's criminal history:

(a) The Applicant had committed several serious and violent offences, > > (b) The offences were committed over a prolonged period and demonstrate a pattern of frequent offending with increase in seriousness, > > (c) The Applicant pleaded not guilty to most serious 2013 offending and continues to deny his involvement, showing lack of insight and remorse (and in oral evidence the Applicant continued to deny his involvement in the 2013 offending stating he was 'stitched up' by the police, despite the conviction which was upheld on appeal), > > (d) The Applicant had been sentenced to multiple terms of imprisonment, > > (e) Much of the offending took place after the Applicant was formally warned about the cancellation of his visa.

2. The Respondent notes that the Applicant continued to offend despite being given formal warnings. In 2007 a decision was made not to cancel the visa and the Applicant re-offended in 2010. He was given another warning in 2011 and continued to offend. The Respondent submits that the Applicant's ability to manage his mental health issues and control the use of illicit drugs is related to the risk of reoffending.
3. There is before the Tribunal a copy of the Community Service Order and Period Detention Assessment dated 4 November 2002. At the time, the court was advised that the Applicant was assessed as unsuitable for either community services order or periodic detention, based on his recent breaches of the community-based orders and unsolved mental health issues.
4. In July 2004 a Probation and Parole service pre-sentence report stated that the Applicant did not initiate contact with the Service and did not respond to initiation of contact by the service, so the report could not be completed. It is noted that the Applicant had "sporadic and unsatisfactory reporting history".
5. The August 2004 presentence report indicates that the Applicant had made an appointment with the Service but did not attend the appointment and had not responded to telephone contact, so the report could not be completed.
6. The March 2005 the presentencing report refers to the Applicant being unsuitable for community service order and period detention due to unresolved drug problems and mental health issues and medical factors. It is stated that the Applicant showed low insight into behaviour, minimised the offending behaviour and showed irresponsible attitudes towards offending behaviour.
7. The September 2005 pre-sentence report refers to the diagnosis of schizophrenia complicated by drug use and non-compliance with medication. It is stated that the Applicant had shown remorse and regret over his actions. At the time, the Applicant was assessed as suitable for a community service order and a periodic detention order.
8. In June 2007 the pre-sentence report it was noted that the Applicant's offending behaviour may be linked to his experiences in his formative years, underlying personal issues, literacy difficulties and numerous mental health issues compounded by his alcohol and drug use. The Applicant was assessed as unsuitable for a community service order and periodic detention due to his unresolved mental health issues.
9. In July 2010 the Home Detention Assessment refers to the presence of illicit drugs noting that the Applicant admitted to having a daily cannabis use. The September 2010 Home Detention Assessment outlines the Applicant's background and notes that the Applicant had received treatment for psychological and psychiatric problems (schizophrenia, PTSD and depression) since 2001 and in 2005 he received treatment for drug induced psychosis related to cannabis use and was diagnosed as having depression and poor impulse control due to a head injury. The report refers to two self-harm attempts in 2003 and 2007. The report states that the Applicant had commenced cannabis use at the age of 10. At the age of 18 it is stated that the Applicant reported his association with an outlaw motorcycle group which led him to amphetamines and cocaine use, progressing to daily use. He reported to stopping cocaine at the age of 26 but continued with cannabis. It is noted that drug tests resulted in positive indication to cannabis. The Applicant was considered to be unsuitable for a home detention order due to his continued illicit substance abuse.
10. The October 2010 Home Detention Assessment update report refers to the information provided by Odyssey House that the Applicant had completed detoxification, and his behaviour was 'exemplary' but he left the program prior to progressing to Stage 1 and had not sought readmission. The Applicant was assessed as being unsuitable for a home detention order as he was 'incapable of remaining abstinent' throughout the assessment period.
11. The Tribunal has had regard to the pre-sentence report prepared in December 2012 in relation to several offences, including armed with dangerous weapon, larceny, maliciously damage property and fire firearm in or near public place. The report outlines the Applicant's background and personal and medical history. It is stated that the Applicant finds difficulty in accepting responsibility for the totality of the offences. The Applicant was assessed as suitable for a medium to high level of intervention, commensurate with the assessed risk, and unsuitable for a community service order due to the unresolved drug dependency issues.
12. The Tribunal has considered the pre-release report dated 29 January 2018. With respect to the risk of reoffending, the report states that the Applicant was considered suitable for a high level of intervention by Corrective Services, commensurate with the assessed risk and identified criminogenic needs. It is also stated that the Applicant's lack of interventions while in custody was of concern, given his risk to the community has not reduced to a manageable level. The report refers to the Applicant having supportive family but states that he did not make any positive progress or utilised his time in custody to address drug issues or gain education / employment skills. It is stated that he is yet to satisfactorily address his propensity in the use of violence. He has completed an EQUIPS aggression program but requires a more intensive program / treatment given his ongoing use of violence since completing the programs. He twice declined to participate in VOTP programs. Importantly, it is stated that the volume of the Applicant's offences in custody that are largely violence or drug related, coupled with two additional external convictions for violence related matters, demonstrates the Applicant's risk to community safety has not reduced and is not manageable. Parole was not recommended.
13. A May 2018 pre-release Supplementary report notes that the Applicant had been found guilty of three offences in custody in the last month, 'throw article', 'create / possess prohibited goods' and 'refuse / fail drug samples'. It is stated that the Applicant had swallowed two balloons of what he reported to be tobacco while being searched in preparation for an escort. This report confirms that parole was not recommended. A further pre-release supplementary report prepared in July 2018 notes that there has been a further institutional misconduct in June 2018 for 'enter other cell without permission'. The September 2018 supplementary report refers to two further institutional misconducts. It is stated that in July 2018 the Applicant was charged with 'possess offensive weapon / instrument' which related to the Applicant being in possession of a metal bar and he was also charged with assault and there were several other incidents under investigation. It is stated that the Applicant's attitude remains unchanged as he maintains that he was entrenched in a drug-taking lifestyle, was drug affected at the time of the offence and was 'driven' to purchase cannabis. He denied prior knowledge of the co-offender's intention, denied discharging the firearm and refused to assist the police in their inquiries. He verbalised regret for his involvement in the offence and communicated insight into the psychological impact of his offending on the victim. It is stated that since the earlier report in September 2018, the Applicant had been charged with a further offence of common assault and has had six institutional misconduct charges relating to non-compliant behaviour. It is stated that since admission to Long Bay hospital the Applicant had accrued negative case notes for noncompliant and manipulative behaviour. The acting Manager of the Lithgow Community Corrections noted concerns that the Applicant's conduct in custody was becoming increasingly problematic and aggressive and that the has shown poor attitude toward completing intervention.
14. The June 2019 pre-release supplementary report notes that the Applicant had classification review in January 2019 but was not progressed due to his poor custodial compliance. It refers to the Applicant's legal cases, including a conviction for common assault committed in July 2018 and attempted stabbing at a correctional centre in November 2018 for which charges were pending. It is noted that the Applicant had incurred three further institutional misconduct charges, two for intimidation of medical / custodial staff in January 2019 and one for indecency in January 2019, which was considered low-level. It is noted that the Applicant attempted self-harm in March 2019 in an attempt to manipulate his custodial sentence. It is stated that the Applicant's attitude towards his index offences remained unchanged, namely that they were drug-related and committed in order to finance his drug use. With respect to the assault offence, the Applicant stated that this was a matter of self-preservation and avoidance of 'being stood over'. It is noted that the Applicant's custodial behaviour had improved but he had not engaged in pro-social endeavours and attempted to manipulate custodial placement.
15. The June 2019 supplementary report notes that in June 2019 the Applicant was charged with two offences and had not incurred any internal misconduct charges since the last report.
16. In his written submission to the Tribunal the Applicant states that he has a history of mental health issues arising from childhood trauma, exacerbated by alcohol and substance abuse and interruptions of proper medical care during incarceration. He also has a history of self-harming behaviour. The Applicant submits that apart from the index offence, the only other violent offences were committed during his imprisonment between 2015 and 2020 due to his mental health issues. The Applicant submits, by reference to reports of health professionals, that if he is living in the community with adequate health care and support of his family, he will be unlikely to revert to that type of stress-related anti-social behaviour and will not be a danger to the community in the future.
17. The Tribunal does not accept these claims. The Tribunal does not accept that the mere availability of appropriate health care and family support will ensure the Applicant will not reoffend. These factors were present in the past when the Applicant did live in the community and did not prevent offending. The above reports indicate that in the past the Applicant had completed treatment for psychological and psychiatric issues and alcohol dependence, but such treatment did not result in reduction of the problematic behaviour and offending and in the reduction of risk to the community safety, as noted, for example, in the January 2018 report. The mere availability of treatment does not ensure that the Applicant will engage in treatment or that it will be effective. The Tribunal would be more persuaded if it were satisfied that at present, the Applicant's mental health issues and other underlying factors - such as substance abuse - have been effectively addressed and that the Applicant will engage with appropriate mental health care. The Tribunal is also mindful that even if the Applicant does have access to mental health care while in the community, his compliance with any treatment would not be enforceable in the absence of additional orders.

1. In his undated submission to the delegate the Applicant states that his offending history must be viewed in the context of profound trauma he has experienced from a young age, drug abuse and mental health and he has demonstrated a commitment to managing these issues in detention and an intention to continue if released into the community, mitigating the risk of reoffending. The Applicant refers to an incident in 2022 resulting in his sustaining a concussion, which has affected adversely his health, and he claims that if released into the community, support from his family will allow his mental health to improve. The Applicant submits that having a range of supports in the community, and support from his family and a meaningful relationship with his son, will help him manage his mental health and when his health and drug use are well managed, he will not be considered a danger to the community.
2. As stated above, the Tribunal considers the Applicant's claim unpersuasive, noting that he did have access to various supports in the community and various records indicate that he had support, and regular visits from his family while incarcerated. Such supports did not result in the Applicant effectively overcoming any issues with drug abuse or mental health issues, resulting in frequent reoffending. The Tribunal is not convinced that the Applicant's circumstances in the future will necessarily be different.
3. The Applicant submits in his evidence to the delegate that most of his offending consists of drug possession and driving offences and with the exception of the 2013 offences, there was no violence while his offending in jail was when he felt 'he did not care anymore'. It is noted that the Applicant had denied his involvement in the 2013 offence but takes full responsibility in relation to other offending. The Applicant refers to the period of homelessness and untreated mental health conditions and drug use which exacerbated his mental health issues, on the background of trauma, family violence and abuse.
4. The Applicant states that his behaviour while in custody was unacceptable and he was convicted of several offences. The Applicant refers to his addiction to buprenorphine (Bupe) while in custody, affecting his behaviour and leading to the escalation of his offending behaviour while in custody. The Applicant states that on several occasions he engaged in self-harm. The Applicant explains that he felt compelled to act violently towards others to protect himself and he will not resort to violence in the community.
5. The Applicant refers to his mental health. He states that in 2002 when admitted to custody, he was experiencing auditory hallucinations and paranoid ideations with voices telling him to hurt people. The absence of hallucinations is consistent with the introduction of anti-psychotic medication. It is stated that the Applicant had been diagnosed with paranoid schizophrenia, schizoaffective disorder, drug induced psychosis, complex PTSD, psychosis, major depressive disorder, polysubstance abuse and substance use disorder and anxiety. It is stated that the Applicant has not continued to take anti-psychotic medication while in immigration detention and he does not report experiencing auditory hallucinations and IHMS records do not suggest any form of mental health disorder. Is it noted that the Applicant is regularly seeing a STARTTS counsellor and intends to continue if released into the community.
6. The Applicant refers to his past drug use and claims that in some cases, it was linked to his offending and to his auditory hallucinations and paranoid ideations and he also refers to the Bupe addiction. He states that in May 2021 he commenced the opioid substitution therapy program through monthly depot injections, and he describes significant improvement in his mental health, and he also reports he has not used marijuana in the past 6 months. The Applicant refers to problems associated with prolonged detention and the adverse effect of indefinite detention, noting that he has been in detention since 2012.
7. The Applicant refers to his desire to reunite and spend time with his family and his son. He refers to his future employment opportunity stating that his mental health will be stable with the support of a psychologist and other mental health supports and programs. The Applicant states that he is committed to continuing his abstinence in the community.
8. With respect to the risk of recidivism, the Applicant acknowledges that historical assessments identify the risk of recidivism as medium and high but the Applicant states that in nearly 3 years in detention he has not been involved in any incidents involving violence (except when he was assaulted in 2022) and he now feels 'like a different person' and does not agree with the use of violence. The Applicant states that he is committed to a changed life and regularly engages with various programs and supports. The Applicant submits that historical assessment of risk of recidivism cannot be taken as an accurate assessment of risk at present. The Applicant also submits that he continues to 'live peacefully in the community' and participates in therapy and counselling to the best of his limited financial ability. The Applicant submits that imposing the strict BVR regime will not assist him in this process.

1. In oral evidence the Applicant submits that the assessment whether he is a danger must be a prospective one and while the past harm is not denied, the causes and motivations of that harm are diminished so that there is no real likelihood of future danger to the community.
2. The Applicant referred the Tribunal to the 2022 assault in detention, stating that he has lost most of his memory and he claims, "he is not the same person". The Applicant stated that he cannot recall the armed robbery offence or the other offending. The Applicant states that he accepts responsibility for the offending and has done 'all the courses that he needed to do' to rehabilitate himself.
3. The Applicant told the Tribunal that he presently holds a Bridging visa and wears an ankle bracelet but is no longer subject to a curfew. When asked about his future treatment plans, the Applicant states that he finds it hard to make arrangements as his previous support person passed away and he does not know how to find another health professional who can take on his support. The Applicant states that while in detention, he had regular Bupe injections to manage his addiction and since his release in October 2024, he was able to find a private clinic to get the prescription for Suboxone, which he takes daily. He also smokes marijuana from time to time, which he obtains legally. The Applicant states that he only drinks alcohol on special occasions.
4. The Applicant told the Tribunal that he is not receiving treatment for his mental health as he has had a problem finding a psychiatrist, but his brother is now helping him in finding a psychiatrist.
5. The Applicant told the Tribunal that he 'hates violence' and is not a violent person. With respect to past offending, the Applicant stated that he agrees with the courts' findings but that does not mean that he committed these offences. He states that one of his co-accused walked free from the court but he did not have enough money to pay lawyers.
6. The Applicant refers to his relationship with his 14-year-old son and states that he wants to be a good role model for his son and be present for him. His daughter lives overseas and he has had no contact with her since 2011. The Applicant states that he also wants to be a good role model for his nieces and nephews, and he wants to be a better person. He referred to having a close relationship with his family and states that his family are worried about him as he spends most of his time in his room and does not wish to leave the house. The Applicant referred to his employment in his brother's shop and his intention to get a driver license and find a job. The Applicant states that he prays five times a day.
7. The Applicant confirmed, under cross-examination, that he sees a private GP for Suboxone, and he also takes painkillers, but he has not been seeing a psychologist since living in the community. He states that once he gets a 'proper job', he intends to cease Suboxone 'in a proper way'. The Applicant spoke about the risk of him returning to Iraq, stating he would be harmed or killed. The Applicant stated that prior to the attack on him, he used to speak to a STARTTS counsellor daily, but it felt like 'opening his wound' or 'putting salt on his wound' so he stopped seeing that counsellor as it was too difficult.
8. The applicant subsequently informed the Tribunal that he takes Seroquel and Valium to help with anxiety. He states that he takes Seroquel 'when he needs it' when he is stressed or agitated or when he has flashes, and it calms himself down. The applicant said that he is seeing the family GP who monitors the medication.
9. The Applicant denied his involvement in the 2013 offending and stated he was 'stitched up'. The Applicant stated that the trial was not fair, and his co-accused was not convicted but he did not have money for the representation, and he referred to the corruption in the system. With respect to his offending while in prison, the Applicant stated that he chose to defend himself and that the person he stabbed 'deserved it'. The Applicant states that he is not a violent person but if someone acts violently towards him, he will defend himself. The Applicant confirmed his use of marijuana but states that it is legal, and he only wants to do things according to law. He states that he wants to be a support for his family, find a job and contribute to the community.

1. There is before the Tribunal a report prepared by Dr Stephen Allnut, dated 10 December 2002 who refers to the Applicant's symptoms being consistent with active symptoms of a psychotic disorder. In his submission to the Tribunal the Applicant notes that Dr Allnut reported that the Applicant sought help in 1999, was reasonably compliant with medication and treatment.
2. The Tribunal has had regard to the psychiatric assessment dated 23 May 2018 prepared by Dr Gordon Elliott of Justice Health. Dr Elliott refers to past assessments and health records, noting Dr Allnutt's assessment that the Applicant has a chronic psychotic disorder, a depressive disorder, PTSD and polysubstance abuse. Dr Elliott refers to Mr Monroe's assessment and an assessment by Dr Dayalan and Dr Furst, who referred to the diagnoses of PTSD, paranoia, query relapse and schizophrenia. Dr Elliott refers to the assessment by Dr O'Dea who refers to history of PTSD symptoms, history of substance use issues, aural hallucinations.
3. Dr Elliott states that the Applicant had admitted regular drug use prior to his arrest and stated that he now 'does things differently'. With respect to the 2013 offending, it is reported that the Applicant had 'strenuously and vehemently protested his innocence' and claimed that the police had 'stitched him up' because he refused to cooperate.
4. Dr Elliott outlines the Applicant's medical history and drug and alcohol history, noting that the Applicant had displayed characteristics that were atypical of the schizophrenia diagnosis. Dr Elliott was not convinced that the Applicant had a chronic psychotic illness such as schizophrenia. Dr Elliott refers to the history of severe substance use disorders which should be the 'first priority in treatment', recommending drug and alcohol counselling, as well as ongoing psychological counselling directed at trauma history.
5. In February 2023 Dr O'Rourke provided a report in which he referred to the Applicant having opioid dependence, personality disorder, cannabis and amphetamine abuse disorder and nicotine dependence. Past diagnoses are said to include non-adherence with medication. It is noted that the Applicant has been involved in fights while in detention, which he regrets, and he now avoids contact with people. It is stated that het Applicant mentioned auditory hallucinations but said he did not want to talk about hearing voices because the voices then come back. It is stated that the psychiatrist review was initiated because the Applicant requested anti-psychotic medication. Dr O'Rourke reports that the Applicant's insight was impaired in light of his substance use and his judgment affected by substance use / dependence. Dr O'Rourke noted that there was no formal diagnosis of schizophrenia and the Applicant's symptoms were vague and he had not experienced hallucinations for years. Dr O'Rourke refers to the diagnoses of antisocial personality disorder and polysubstance use disorder and was unable to confirm the diagnoses of schizophrenia and depression.
6. The Tribunal has considered a report prepared by Dr Simonelli dated 29 September 2023. The report sets out the Applicant's psychiatric history, noting the past diagnoses of possible paranoid schizophrenia or schizoaffective disorder, a depressive disorder, PTSD, polysubstance abuse and intellectual disability. It is stated that the ap has not continued to take anti-psychotic medication while in immigration detention and IHMS records do not indicate that the Applicant has been experiencing a relapse of psychotic symptoms or that he had presented with any major health symptoms. The report refers to the 2023 assault resulting in concussion. It is stated that the Applicant has accessed a STARTTS counsellor weekly, but it appears that he continues to struggle and work through symptoms of PTSD, including flashbacks and intrusive images, nightmares, hypervigilance and insomnia. The report refers to the Applicant having a long history of substance abuse and buprenorphine addiction developed in custody. It is stated that he was admitted to the Opioid Substitute Treatment program in May 2021 and continues to participate in that program and claims it has had a positive impact on his mental health and drug use issues and he reported cessation of drug use since commencing on the program. It is stated that the Applicant has not completed any formal drug and alcohol treatment programs, and the current Opioid Agonist therapy seems to have been effective in managing illicit substance use.
7. Dr Simonelli states that on examination, there was no evidence of psychotic symptoms. It is stated that the Applicant had poor insight and self-awareness into his mental health difficulties and what would go towards the betterment of his mental health. Dr Simonelli made the diagnoses of PTSD, opioid, cannabis, alcohol and methamphetamine misuse disorders and borderline and antisocial personality disorder traits.
8. Dr Simonelli outlined a plan for treatment in the community, stating that the Applicant ought to engage in a holistic treatment plan including support surround drug and alcohol, psychological and psychiatric services and continue with the opioid replacement therapy. It is proposed that the Applicant ought to combine the psychological treatment with pharmacological treatment and psycho-social intervention, abstain from depressogenic behaviours such as alcohol or substance use, gambling and other behaviours he deems detrimental to his mental health, he ought to access a mental health care plan and seek treatment from a psychologist specialising in treatment of PTSD. There would be a need for ongoing periodic sessions. Dr Simonelli refers to the adverse effect of immigration detention on mental health stating that treatment offered within such a setting may be able to reduce symptoms and risk to some extent but cannot offer the long-term holistic model of care that will provide full recovery.
9. With respect to the risk of reoffending, and whether the Applicant is a danger to the Australian community, Dr Simonelli has addressed various factors finding that the risk was a moderate risk. Dr Simonelli states that the Applicant presents a complex risk profile with several historical and clinical risk factors, including a history of criminal behaviour, ongoing substance abuse, an active diagnosis of PTSD and potential treatment non-compliance, stating that effective risk management and treatment strategies are critical to reducing the risk of violent or harmful behaviour. Dr Simonelli offered recommendations for mitigating the risk, including mental health and substance use treatment, violence prevention program, structured reintegration, cultural and community support, case manager, release planning, supervision and monitoring, restorative justice and mentorship.
10. The Applicant presented a report by Mr Watson-Munro. The sentencing judge in 2013 refers to Mr Watson-Munro's report that at the time of offending, the Applicant's judgment would have been compromised by drugs and psychotic condition and expressing an opinion that the Applicant needs psychotherapy, social skills training and treatment to address relapse. The Applicant presented a further report from Mr Watson-Munro, prepared in February 2025 (the Applicant told the Tribunal he has no recollection of his communications with Mr Watson-Munro). The Report indicates that the Applicant's conduct disturbance and criminal history need to be considered in the context of a serious psychiatric conditions involving a range of diagnoses (PTSD, schizophrenia and epilepsy), depression and anxiety. It is noted that since his release into the community in October 2024 the Applicant has lived with the support of his family and without an incident. Mr Watson-Munro states that the Applicant's offending history is strongly connected to his earlier trauma, adjustment issues and a sense of not being accepted into the Australian community, and his behaviour was aggravated by substance use and mental illness. Mr Watson-Munro stated that the Applicant has 'matured' and has better insight into his behaviour and he has expressed commitment to treatment. It is stated that substance use does not appear to be an issue for him at present and his mental health has significantly improved with the drug disorder appearing to be in remission. It is stated that the Applicant reported 'trying to live a normal life' and reported that he had dissociated from former people who had adversely impacted his mood and behaviour. It is stated that the Applicant reported he had reduced his drug consumption but feels he would benefit from ongoing psychotherapy. Mr Watson-Munro refers to STARTTS counselling and states that his observations accord with the observations made by Dr Simonelli, including the adverse effect of immigration detention on mental health.
11. Mr Watson-Munro states that the Applicant has complex psychiatric history. Since his release int the community there had been no incidents, and he has the support of his family and positive aspirations about future employment and ongoing treatment. It is stated that the Applicant is compliant with medication and there is no present evidence of psychotic symptoms. It is sated that the Applicant is insightful to the impact of his past behaviour on others. Mr Watson-Munro states that the risk of the Applicant reoffending is trending to low. Mr Watson-Munro states that the Applicant would benefit from treatment involving a combination of psychotropic medication and psychotherapy and he refers to presence of family as a protective factor.
12. In oral evidence Mr Watson-Munro referred to the applicant's evidence concerning the impact of the injury in 2022. He spoke about the presence protective factors, including maturation, compliance with medication and insight, stating that the risk of reoffending is trending to low. Mr Watson-Munro stated that the presence of family is a strong protective factor, and there are other protective factors in place. Mr Watson-Munro emphasised the significance of the applicant having committed no offences since being released into the community and there being no issues with the present domestic situation. Mr Watson-Munro emphasised the importance of ongoing treatment but said it is encouraging that there has been no relapse into offending despite lack of treatment so far. Mr Watson-Munro states that being in the community (as opposed to detention) would enhance the applicant's mental health while being in detention is likely to have an adverse effect into mental health. He stated that the uncertainty of future removal from Australia, such as living in the community on a BVR with its restrictions, may exacerbate his mental health.
13. With respect to medication, Mr Watson-Munro stated that he believes prescription of psychotropic medication is up to a psychiatrist or a mental health practitioner and he notes that the applicant does not presently display any symptoms of psychosis. When the applicant's oral evidence to the Tribunal was pointed out to Mr Watson-Munro, he said that the new information is 'concerning' and the applicant should have ongoing observation and support of a mental health practitioner. The absence of that is 'concerning' but there is no present evidence of non-compliance. When asked to explain the term 'trending to low' in relation to the risk of reoffending, Mr Watson-Munro stated that the applicant is on a lowering risk trajectory and is 'travelling well' at present but it will take more time, given his prior history, to determine that the risk is low. Mr Watson-Munro states that the Applicant has made improvements but needs to be monitored in terms of medication and other factors. Mr Watson-Munro states that he is not prepared to express an opinion that at present the risk of reoffending is 'low' but the risk is reducing rather than increasing.
14. Mr Watson-Munro referred to the protective factors, noting that some of these (such as employment and community engagement) are presently 'aspirational' and he acknowledged that it may be difficult for the applicant to obtain employment, but lack of employment does not necessarily mean higher risk of reoffending. Mr Watson-Munro acknowledged that there will be a period of adjustment, given the length of time the applicant had spent in detention, stating that he should be under observation of at least a psychologist. Mr Watson-Munro stated that the Applicant's use of marijuana is of concern if used illegally but if it is medically prescribed and monitored by a health professional, it may be of benefit.
15. The Respondent states in the written submission that Mr Watson-Munro's opinions are based on the fact that the Applicant has been living with his family since October 2024 and has not reoffended and submits that this report should be given little weight, noting the Applicant's ongoing need for treatment and the little time that has passed since the Applicant's release into the community (October 2024) and the preparation of the report (in February 2025). The Respondent notes that in 2023 Dr Simonelli reported that the Applicant presents a 'complex risk profile' and there is 'slim evidence' that the Applicant engaged in measures recommended by Dr Simonelli to mitigate risk. The Respondent notes that he Applicant had attempted rehabilitative programs in the past with little success in curbing his offending. The Respondent submits that the Applicant's prospects of rehabilitation are guarded at best, and he remains a danger to the Australian community.
16. During the hearing the Tribunal has been provided with the GP Mental Health care plan prepared by Dr Emin, dated 6 May 2025. It refers to the diagnosis of depression and sets out medication such as Augmentin (for gingivitis), Seroquel (for schizophrenia) and Valium (for anxiety).

1. There is before the Tribunal evidence of the Applicant having made contact with psychologist while incarcerated and there are psychology records relating to his interactions with the psychologists and copies of various assessments and consent forms. A note from Ms Donaldson dated 4 March 2020 refers to the Applicant's offending and participating in past programs. There is evidence indicating the Applicant was offered attendance at the Self-Regulation Program for Violent Offenders. Notes indicate that on some occasions (for example, in January 2018 and in March 2017) the Applicant did not accept the offer stating he was not a violent person, while on other occasions Applicant did agree to participate in that program.
2. The Tribunal has been provided with the Applicant's IHMS records relating to the period of his immigration detention, as well as other medical records prepared during the Applicant's criminal and immigration detention. There is also evidence of the assaults on the Applicant during his detention.
3. The Tribunal has been provided with supporting written statements from the Applicant's mother and brother who refer to the Applicant past but being a changed person and the incident in detention when he was attacked. Both expressed the view that the applicant is not a danger to the community.
4. In oral evidence the Applicant's brother AH who referred to frequent contact with the Applicant. He states that in the past the Applicant did have behavioural issues but 'lately' he been taking medication and behaving well. Mr AH stated that in his view, his brother is not a danger to the community. He states that in the past, his brother was mixing 'with the wrong crowd', was at the wrong place at the wrong time and everyone makes mistakes. Mr AH states that his brother is now older, has family support and wants to maintain a close relationship with his son. Mr AH states that the family believe rehab is the best place for the Applicant and the entire family will support him. Mr AH refers to the Applicant's time in detention and the assault resulting in concussion and states that the Applicant is now 'not the same person' mentally. When asked if the Applicant is now less of a danger to the community, Mr AH said that he never believed the Applicant was a danger to the community. (Given the nature and the history of the Applicant's past offending, the Tribunal is of the view that this assertion that the Applicant was never a danger to the community shows Mr AH's lack of appreciation of the seriousness of the Applicant's past conduct and poor judgment in relation to his brother).
5. Mr AH told the Tribunal that the Applicant is a kind person who is helpful to everyone and there has been an improvement in his mental state due to the support from the family. He states that he hardly leaves his room and cannot be a danger for the community in his state. Mr AH states that all his brother wants is to better himself and he is '70% there' and is getting better.
6. Mr AH states that his brother would not 'do something out of nothing' but that is not sufficient. If the Applicant were to commit a violent offence in response to what he perceives to be a provocation or in what he perceives to be self-defence, this could still pose a danger to the community.
7. The applicant's mother Ms ARM also gave oral evidence to the Tribunal. Ms ARM told the Tribunal that her son has never been a violent person and has been sent to prison because of an 'accusation' that he stole a car, but he did not do it. She referred to her son's lengthy incarceration and states that 'he is much better now' and does not take any medication (other than for dental work). She seemed unaware of the applicant taking Suboxone, stating he is healthy and does not require medication but if her son needed medication, she would help and encourage him.
8. Ms ARM stated that the applicant does not work but 'sometimes' help his brother, no more than once or twice a week. She states that the Applicant sometimes helps with housework and spends most of the time in his room.

1. The Applicant's criminal record in totality is extensive and spans a lengthy period of time. Some of his offending, particularly offending involving violence, was of serious nature and, should it be repeated, has the potential of causing physical harm to others. The Tribunal is not convinced that the factors that may be considered as mitigating factors - such as the Applicant's mental health - had been effectively addressed.
2. The Applicant submits in his written submission to the Tribunal that the index offences were committed over 10 years ago and that his criminal record overall, when he was not subject to stressors of incarceration, does not give rise to the expectation that he is likely to commit serious offences of that type in the future, given the prospect that in the community he will engage in the psychological and medical counselling and will have the assistance of his family to deal with effects of PTSD and substance abuse as he is determined to do. For the following reasons, the Tribunal does not accept that argument.

(a) Firstly, the Tribunal does not accept that while living in the community, the Applicant will not experience any number of stressors. If the Applicant suggests that the recent offending was due to stressors of imprisonment or immigration detention (rather than, for example, ongoing mental health issues), then the Tribunal must have strong evidence that the Applicant has learnt coping mechanisms and is able to deal with other stressors that he undoubtedly will experience in the community. The Tribunal is not convinced that there is persuasive evidence of the Applicant's improved coping skills. > > (b) Secondly, as noted elsewhere, the mere fact that the Applicant will have the ability to access psychological and medical help in the community does not necessarily mean that he will access such help or that he will consistently engage in such help. > > (c) Thirdly, the Tribunal has formed the view that the Applicant lacks insight into his past offending, despite his (and others') claims that he has gained such insight. The Applicant in oral evidence repeatedly stated that he was wrongly convicted for the 2013 offences and that offending in detention was justified because he was in a violent environment and was defending himself. > > (d) Fourthly, the Tribunal does not agree with the Applicant's apparent premise that there is no risk of future serious offending and therefore he is not a danger to the community. A danger to community may exist if the Applicant commits offending that is not a 'serious offence' or not the offence of the same nature as had led to the earlier finding that a serious offence was committed. Many of the offences committed by the Applicant could not be classified as 'serious' but could nevertheless pose significant danger for the community - for example, drink driving or negligent driving, assaults and grievous bodily harm. If the Applicant were to commit similar offences in the future, there would be a risk of significant physical harm or even death to members of the community.

3. The Tribunal acknowledges that there are several protective factors. That includes the presence of his family and their support, the Applicant's desire to support his son, his past engagement with health professionals, completion of some courses while in detention and participation in counselling and other programs, his religion and employment. The Tribunal gives these factors some weight as evidence of rehabilitation and of reduced the risk of further offending. However, the Tribunal does not consider these to be sufficient to satisfy the Tribunal that the risk of violent offending or other offending capable of causing physical harm is removed or significantly reduced. As noted above, many of these factors were present previously and did not affect the offending conduct. The Tribunal notes the 2010 report by Odyssey House that the Applicant completed detoxification, had exemplary behaviour, yet he was assessed as being incapable of remaining abstinent. The July 2010 report refers to treatment completed by the Applicant which also did not result in the reduction of the offending behaviour. The Tribunal also places some weight on the fact that the Applicant had multiple prior warnings concerning the possibility of his visa being cancelled and despite that, he was incapable of reducing his use of illicit drugs and avoiding his engagement in the offending behaviour.
4. The Tribunal also places some weight on the fact that the Applicant lacks insight into his offending. The Applicant seems to believe that in some instances violence is justified and that his right to defend himself can involve violence towards others. Despite the Applicant's evidence that he will now avoid violence, his evidence also suggests that if harmed or attacked, of if he believes he has been provoked, the Applicant is likely to respond with violence. The Tribunal is not convinced that the Applicant has the ability to deal with stressors without resorting to violence.
5. The Tribunal acknowledges the evidence of the applicant's mother and brother. However, the Tribunal is unpersuaded by that evidence. Both expressed the belief the Applicant is not a violent person despite his convictions for offences that involved violence. The applicant's mother seems to have limited understanding of the reasons for his past imprisonment. Their evidence does not display the depth of knowledge of the Applicant's circumstances and capabilities. The Tribunal acknowledges their belief that the applicant is now a changed person but finds it unpersuasive.
6. There is evidence before the Tribunal concerning the attack on the Applicant in detention and the resultant head injury. The applicant and others spoke about the effect of the head injury on the Applicant's functioning, including social withdrawal. However, the Tribunal has not been provided with probative evidence, such as for example a report by a neuropsychologist, addressing the effect of head injury on the applicant's capacity to function, manage aggression, comply with the law. There is no evidence whether and how the head injury would affect the Applicant's response to stressors. The Tribunal is not satisfied on the evidence before it that the Applicant's head injury diminishes the risk of reoffending. Neither does the presence of his family and his relationship with the son. As noted above, these factors were present in the past and did not prevent the applicant from engaging in violent offending. As for the claim that the applicant is now older and more mature, the Tribunal does not consider this to be a sufficient preventative factor. Notably, the Applicant told the Tribunal that he believes he has a right to defend himself, including violently. The Applicant's evidence suggests that despite all the claimed preventative factors, the applicant feels that at least in some circumstances, violence towards others is acceptable.
7. The Tribunal has had regard to the evidence of Mr Watson-Munro, who provided the most recent report in relation to the applicant. Notably, Mr Watson-Munro expressed the view that the applicant has made progress compared to 12 years ago, on the basis of his maturation, counselling with STARTTS, compliance with medication, and insight. However, the Tribunal does not accept that these factors are necessarily present. The applicant may be more mature. However, his evidence to the Tribunal is that he had ceased STARTTS counselling. He is on anti-opioid addiction medication and takes Valium and Seroquel 'when he thinks he needs it'. The Tribunal has formed the view that the Applicant lacks insight into his offending, noting in particular his denial of the most serious offending in 2013 and justification of violent offending in prison as self-defence. Mr Watson-Munro's opinion is that risk of reoffending, having regard to these factors and protective issues, is trending to low. It is notable that Mr Watson-Munro has not assessed the risk as being 'low' but 'trending to low', suggesting there is an above-low risk of reoffending at present. Even that assessment is predicated upon several factors such as the applicant's engagement in treatment, medication compliance, family support, etc and some of these factors are simply not present (most notably, ongoing counselling and observation by mental health professionals). The Tribunal has also had some regard to the assessment by Dr Simonelli that the risk of reoffending is 'medium'.
8. The applicant submits that he is determined to turn his life around and is 'doing his best' and has taken whatever steps he has been capable of, and he refers to motivations and various supports, including strong family support. The Tribunal is prepared to accept that the applicant presently has a desire to avoid the recurrence of criminal behaviour. The concern is whether the applicant is capable of adhering to these plans and undertakings, and whether his determination will continue. The applicant refers to hardships associated with being on a BVR and the possibility of being removed from Australia and states that the danger to the Australian community is more serious if he remains a holder of a bridging visa, rather than a permanent visa. The Tribunal accepts that it may be more beneficial for the applicant to hold a permanent visa but there are no discretionary considerations in this case. It is not necessary for the Tribunal to determine which visa would minimise the risk of the Applicant reoffending. Either the applicant is assessed as a danger to the community, or he is not, it is not for this Tribunal to determine what would benefit the applicant's health and readjustment.
9. Having regard to all of the Applicant's circumstances, the Tribunal finds that there remains a significant risk of the Applicant committing further offences. Such as a risk is present and real and not an insignificant risk. It is not fanciful.
10. In reaching this conclusion, the Tribunal gives significant weight to the fact that since his release into the community in October 2024, the Applicant has not commenced counselling for his mental health. (Dr Simonelli and Mr Watson-Munro refer to the diagnoses of schizophrenia and PTSD although Dr O'Rourke notes the diagnosis of schizophrenia has not been confirmed). There is evidence that the applicant takes Seroquel, but he appears to be determining for himself when it is required. There is certainly no evidence of the applicant engaging in counselling and treatment suggested by health professionals. The Applicant referred to the difficulties in finding a health professional and the help from his brother in finding someone but to date, some six months after his release, the Applicant has not yet commenced treatment, nor made firm arrangements for such treatment. The Applicant refers to being 'slow' and he repeatedly referred to his forgetfulness and the effects of the assault in detention. The Tribunal acknowledges that the assault and perhaps other factors such as past drug use may have affected the Applicant's functioning, however, this also suggests that the Applicant may be incapable (if not unwilling) to arrange and engage on an ongoing basis in appropriate treatment. The Applicant's evidence to the Tribunal is that he has multiple referrals to psychologists but requires the help of his brother to make further arrangements.
11. The Tribunal is not satisfied the Applicant will be able to effectively arrange and participate in ongoing treatment that has been recommended to him. Further, the Tribunal is not satisfied that, even if the Applicant does arrange treatment, he will necessarily and consistently engage in such treatment in the future. The Tribunal is mindful that mental health issues had been identified by the Applicant himself, and several health professionals, as contributing to his offending. Dr Simonelli in his report refers to the need for long term holistic model of care needed for full recovery and Mr Watson-Munro states in his report that the Applicant would benefit from treatment involving a combination of psychotropic medication and psychotherapy and in oral evidence Mr Watson-Munro emphasised the importance of ongoing observation and counselling. While there is some evidence of psychotropic medication in the form of Seroquel, there is simply no evidence before the Tribunal that the treatment recommended by health professionals has been arranged and engaged in and the Tribunal is not convinced the Applicant is willing and able to consistently engage in such treatment in the future. (For example, the Tribunal notes the Applicant's evidence that he stopped attending psychological sessions with STARTTS because he did not like how he felt.) The Tribunal finds that without effective regular and ongoing treatment for mental health issues, as recommended, there remains a real risk of the Applicant re-engaging in violent conduct.
12. The Applicant and his brother told the Tribunal that he hardly leaves the room, and the Applicant states he does not wish to leave the house. Mr AH states that the Applicant is not a danger to anyone in this state. However, it is unrealistic to assume that the Applicant will remain inside the house in the future. His own evidence is that he started helping his brother in his business, intends to get a driver license and a job. While transitioning from incarceration to life in the community may take time, the Applicant's evidence indicates that he has no intention to remain inside the house in the longer term and the Tribunal thus does not consider that his present voluntary withdrawal from the society will act as a deterrent to future offending.
13. The Applicant told the Tribunal that his early offending was due to the use of marijuana. It is notable that the Applicant admits to ongoing legal use of marijuana and occasional intake of alcohol (he refers to special occasions). Mr Watson-Munro expressed concern about the use of marijuana if it is not done under the observation of a health professional and it is not apparent from the evidence before the Tribunal that such observations are taking place. If the Applicant believes that in the past the use of marijuana led to some of the offending, it is unclear why he believes that would not be the case in the future. There is no evidence that since his release from detention, the Applicant has engaged in treatment relating to alcohol use (noting that Suboxone is used to treat opioid addiction but no other substance addictions).
14. The Tribunal has formed the view that that if the Applicant does not engage in adequate treatment, there is a real likelihood that he may relapse into substance abuse, or that his psychiatric condition may affect his future conduct, and he is then likely to engage in further offending. The Tribunal finds that such risk is not remote or fanciful but is a present and serious risk (to use the language in MHCZ[7]). Given the possibility of violent offending when the Applicant is mentally unwell or under the influence of illicit substances, the Tribunal is of the view that the risk involves physical harm to members of the community.
15. The Tribunal has determined that there is a present, real and significant likelihood that in the future, the Applicant will engage in conduct that will cause physical harm to members of the community. The Tribunal finds that the Applicant is a danger to the community.
16. Having found that the Applicant, having been convicted of a particularly serious crime, is a danger to the Australian community, within the meaning of ss 36(1C)(b) and s 36(2C)(b)(ii) of the Act, the Tribunal finds that the Applicant is not eligible for a Protection visa pursuant to s 36(1A) of the Act. The Tribunal affirms the decision under review.

[1] WKCG and Minister for Immigration and Citizenship [2009] AATA 512; (2009) 110 ALD 434 at [25]- [26].

[2] DOB18 v Minister for Home Affairs [2019] FCAFC 63.

[3] KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108.

[4] DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84 (DMQ20).

[5] SLGS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 104.

[6] NJCT v Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 117.

[7] MHCZ and Minister for Home Affairs [2019] AATA 4259.