1. The charges arose from an incident which occurred on 5 September 2013. At the time of the incident, the applicant shared an apartment with four other Afghan men. The applicant slept on the floor of a room he shared with two other men: the victim and the deceased. In a statement dated 22 August 2018, the applicant stated that the deceased was married to his wife's sister and the other victim was his brother-in-law (his wife's brother).[11]
2. On the evening of 4 September 2013, all five men were home in the apartment and each retired to their respective beds at various points in the evening. The deceased and the victim went to sleep in the room they were sharing with the applicant. At approximately 2 am on 5 September, the victim was awoken by the applicant who stabbed him in the abdomen with a kitchen knife. The applicant then moved to the deceased and stabbed him in the chest with the same knife. The victim had the strength to get up and fight the applicant, he called out to the other men in the house who, in course, woke up. Police were called and the applicant was arrested. The victim and the deceased were conveyed to the hospital. The deceased was pronounced dead on arrival, the postmortem examination revealed that the cause of death was a single stab wound to the left chest. The wound was 17 cm in depth and had punctured the rib, left lung and the heart. The victim sustained a single stab wound to the upper abdomen which had lacerated his liver. He underwent surgery to repair the damage to his liver. The wound was described as potentially life threatening.[12]
3. The applicant was taken into custody on 5 September 2013 and interviewed at Auburn Police Station. During the interview, he admitted to stabbing both men and stated that he intended to kill them. He explained that his motive was a belief that the men had sexually assaulted him the previous night and were planning to do so again that evening. When asked if he had a mental illness, he said he did but he was unable to identify the specific condition.[13] The applicant was subsequently transferred to Long Bay Hospital, where various medical reports recorded that he 'believed he was raped by the victims,' that he was 'likely having persecutory delusions and delusions of having been raped by a relative,' and that he 'wanted to kill himself or be deported to Afghanistan to be executed.'[14]
4. On 12 December 2013, the Mental Health Review Tribunal (MHRT) determined that the applicant was a person suffering from mental illness and should be detained in a mental health facility for care and treatment. On 13 February 2014, an order for the applicant's return to a correctional centre was made.[15]
5. On 25 March 2015, Mathews AJ found that the essential ingredients of murder and wound person with intent to murder were established beyond reasonable doubt. The outstanding issue before the court was whether the defence of mental illness as set out in R v McNaughten[16] had been made out.[17] In relation to this question, the applicant tendered three forensic psychiatric reports by Dr Richard Furst, and the Crown tendered a report of Professor David Greenburg.
6. Dr Furst diagnosed the applicant as suffering from 'schizophrenia, paranoid type.'[18] He opined that he was acutely psychotic at the time of the incident and that this was his first episode of psychosis. Dr Furst referred to research showing that the first episode of psychosis is often accompanied by a greatly increased risk of homicide and serious violence.[19] Professor Greenberg rejected the diagnosis of schizophrenia and diagnosed the applicant with obsessive compulsive disorder. He stated that at the time of the incident, the applicant was suffering from a major depressive disorder with psychotic features exacerbated by benzodiazepine withdrawal.[20]
7. Acting Justice Mathews noted that it was clear that no sexual assault ever took place and that the applicant's 'undoubtedly genuine' belief to the contrary was rather a symptom of his mental illness.[21] The Court found it unnecessary to determine the applicant's precise condition, because although the diagnoses differed, both Dr Furst and Professor Greenburg found that, at the time of the incident, the applicant was suffering from an illness that constitutes a disease of the mind under the McNaughten rules. The applicant understood the nature and quality of his actions but, due to his 'paranoid delusion that he had been sodomised', he did not know that they were morally wrong. The Court was satisfied on the balance of probabilities that at the time of carrying out the acts, the applicant was mentally ill in the relevant sense.[22]

1. Having been found not guilty of the charges due to mental illness under s 39 of the Mental Health (Forensic Provisions) Act 1990, decisions about his care, treatment, detention, leave and release are all made by the Mental Health Review Tribunal (MHRT). The applicant is to be reviewed by the Tribunal every six months.[23]
2. On 20 November 2015, the MHRT ordered the applicant to be transferred to the Forensic Hospital when a bed becomes available. The applicant was subsequently admitted to The Forensic Hospital Malabar from custody on 10 April 2017.[24]
3. On 2 May 2017, hospital staff discovered a number of Seroquel tablets under the applicant's mattress during a routine search. As a result, he was commenced on depot medication.[25] In the same month, the applicant was reported to have been involved in the assault of another patient.
4. On 5 December 2019, the MHRT ordered that the applicant be transferred to a medium secure unit, granting him escorted ground leave and escorted day leave from the Forensic Hospital. Four days later, on 9 December 2019, he was transferred to Morisset Hospital.[26]
5. At Morisset Hospital, the applicant's leave conditions were progressively relaxed. On 5 May 2020, he was granted unsupervised day leave on the grounds of Morisset Hospital, and on 1 June 2021, he was approved supervised day leave with NGOs.[27]
6. On 11 November 2021, the applicant was moved from medium security to the lowest security Cottages area of Morisset Hospital, where he continues to reside.[28]
7. On 23 December 2021, the MHRT granted the applicant unsupervised day leave in Bonnells Bay, Glendale, and Cooranbong.[29] On 15 December 2022, further approval was given for escorted day leave, supervised day leave and unsupervised day leave.[30]
8. On 14 April 2023, the MHRT extended the applicant's leave conditions to include unsupervised overnight leave within the lake Macquarie and Newcastle local government areas. This was permitted up to twice per month, with the condition that each period of overnight leave be followed by 12 hours of escorted or supervised day leave.[31]
9. On 10 October 2023, the MHRT broadened the scope of the leave, authorising overnight leave of two nights per week and five hours of escorted or supervised day leave after each use.[32]
10. On 8 October 2024, the MHRT approved supervised and unsupervised overnight leave of up to six nights per week at an apartment in Sydney CBD with the applicant's relative as a supervisor.[33]

1. The matter was heard on 8 and 9 September 2025. At the hearing, Mr Robert McCaw of Counsel appeared for the applicant (instructed by Ms Isobel McGarity of Refuge Advice and Casework Service (RACS)). The Minister was represented by Mr Samuel Murray of Counsel, instructed by Ms Paige Durham of the Australian Government Solicitor (AGS).
2. In deciding this matter, I have considered:

a) The G documents - Exhibit R1 > > b) The Minister's statement of facts, issues and contentions (RSFIC) (filed on 27 August 2025) - Exhibit R2 > > c) The Minister's supplementary bundle of documents, including additional documents admitted into evidence (HB2 a-d) (filed on 27 August 2025) - Exhibit R3 > > d) The applicant's statutory declaration (filed on 14 August 2025) - Exhibit A1 > > e) The applicant's statement of facts, issues and contentions (ASFIC) (filed on 14 August 2025) - Exhibit A2 > > f) The applicant's ASFIC in reply (filed on 14 August 2025) - Exhibit A3 > > g) The applicant's supplementary bundle, including additional documents admitted into evidence (filed on 3 September 2025) - Exhibit A4 > > h) The Hearing Book (HB)

a) The applicant > > b) Mr [redacted] > > c) Dr Calum Smith > > d) Ms Heather-Louise Nagle > > e) Dr Sachin Rai

4. The relevant parts of the oral evidence and submissions are considered in my reasons below.

1. The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds.
2. These powers generally involve consideration of whether a person passes the character test, and if they do not, whether the decision maker should exercise a discretion about whether the visa should be refused.
3. Section 501(1) of the Migration Act is as follows:

(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: Character test is defined by subsection (6).

(Original emphasis.)

1. The character test as set out in s 501(6) of the Migration Act essentially deems that a person does not pass the character test if the circumstances listed in that provision apply. Section 501(6)(a) of the Migration Act relevantly provides that:

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by

subsection (7)); ...

1. A 'substantial criminal record' is relevantly defined by s 501(7)(e) of the Migration Act as follows:

(7) For the purposes of the character test, a person has a substantial criminal record if: ...

(e) the 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; ...

1. The Tribunal (standing in the shoes of the Respondent) is required to form a state of satisfaction as to whether there is 'another reason' why the original decision should be revoked, reasonably and on a correct understanding of the law. By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
2. On 7 June 2024, the Minister made Direction No. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024 (Direction No. 110). Direction No. 110 replaced the previous Direction No. 99.
3. The purpose of Direction No. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.

1. Paragraph 5.1(2) of Direction No. 110 provides:

Specifically, under subsection 501 (1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.

1. Paragraph 5.2 of Direction No. 110 sets out the 'principles' which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles 'provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501' and are expressed 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 [sic] risk of causing physical harm to the Australian community. > > (5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. > > (6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. > > (7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-‑ citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. > > (8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

2. Informed by the principles set out in paragraph 5.2 of Direction No. 110, the Tribunal must take into account the 'primary considerations' listed in paragraph 8 of Direction No. 110, and the 'other considerations' listed in paragraph 9 of Direction No. 110, where relevant to the decision.

Primary considerations - paragraph 8 of Direction No. 110

1. In making a decision under s 501(1) of the Migration Act, the five 'primary considerations' the Tribunal must take into account are:

(i) protection of the Australian community from criminal or other serious conduct:

(ii) whether the conduct engaged in constituted family violence;

(iii) the strength, nature, and duration of ties to Australia;

(iv) the best interests of minor children in Australia; and

(v) expectations of the Australian community.

Other considerations - paragraph 9 of Direction No. 110

1. The 'other considerations' the Tribunal must take into account, as far as they are relevant, include (but are not limited to):

(i) legal consequences of the decision;

(ii) extent of impediments if removed; and

(iii) impact on Australian business interests.

Primary & other considerations - further guidance

1. Further guidance as to how a decision-maker is to apply the considerations in

Direction No. 110 can be found in paragraph 7, which provides:

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. > > (2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. > > (3) One or more primary considerations may outweigh other primary considerations.

1. The applicant has been acquitted of offences of murder and wound person with intent to murder on the grounds of unsoundness of mind or insanity. As a result, he has been detained in a facility or institution since the incident. I find that the applicant has a substantial criminal record as defined in s 501(7)(e) and that he does not pass the character test. The applicant concedes that this is the case.
2. As the applicant does not meet the character test, the remaining issue is whether the discretion to refuse the applicant's visa should be exercised, taking into account considerations in the Direction and any other relevant considerations.

Protection of the Australian community from criminal or other serious conduct

1. The first primary consideration, in paragraph 8.1(1) of Direction No. 110, focuses on the protection of the Australian community. Direction No. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
2. Paragraph 8.1(2) of Direction No. 110 provides that decision-makers should also give consideration to:

(i) the nature and seriousness of the non-citizen's conduct to date; and

(ii) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the applicant's conduct

1. Paragraph 8.1.1(1) of Direction No. 110 provides:

(1) In considering the nature and seriousness of the non-citizen's criminal offending and other conduct to date, decision-makers must have regard to the following:

a) without limiting the range of conduct that may be considered very serious, the types of crimes and conduct described below are viewed very seriously by the Australian Government and the Australian community:

iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled)...

c)....the sentence imposed by the courts for a crime or crimes;

d) the impact of offending on any victims of offending or other conduct and their family....

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

1. In this matter, I have had regard to the applicant's acts and the circumstances giving rise to the violent incident which resulted in the death of one victim and the other victim being seriously injured.
2. It was submitted by the applicant that, in assessing the nature and seriousness of the applicant's conduct, the Tribunal should not treat the 2013 incident as criminal offending, given the NSW Supreme Court's special verdict of not guilty by reason of mental illness. The ASFIC contended that the proper focus should be on the conduct that gave rise to the character concern and that several indicators in paragraph 8.1.1 of Direction No. 110 suggest that the 'conduct was not serious.' Reliance was placed upon the fact that the applicant has no criminal record, has not been convicted of any crime, no sentence was imposed because he was found not guilty and he has not broken the law. He has not provided any false or misleading evidence to the Department and, since his arrest, there has been no further conduct giving rise to character concerns. It was submitted that the conduct was an isolated aberration without any trend or cumulative effect to consider.[34]
3. While acknowledging the 'tragic' consequences of the conduct and that the victims' families would have been emotionally distraught, it was submitted that these consequences cannot overshadow the fact that the applicant's mental illness was so severe he could not appreciate the morality of his actions and this significantly reduces the seriousness of his conduct.
4. In the RSFIC, the Minister conceded that the applicant's conduct was isolated, that the Court accepted it was the consequence of the applicant's mental illness, and that there is no evidence that the applicant has provided false or misleading evidence to the Department. However, the Minister rejected the applicant's contention that the applicant's conduct was not serious because of the absence of a conviction and the fact that the incident was a one-off, illness-precipitated aberration. It was submitted that the applicant's analysis misstates the terms of Direction No. 110, which expressly extends to non-conviction conduct, including family violence.[35]
5. The Minister contended that the applicant's actions were inherently grave and his conduct was very serious, notwithstanding the absence of criminal culpability. The Minister further contended that the applicant's conduct falls within the definition of family violence in Direction No. 110 (as the two victims were members of the applicant's extended family) and is therefore specified to be "very serious" conduct by 8.1.1(1)(a)(iii) of Direction No. 110. Furthermore, while the applicant's illness explains the conduct, 'explanation is not exculpation from administrative consequence' and the tragic consequences of the conduct 'elevates seriousness to the top of the scale.'[36]
6. In his closing submissions at the hearing, Mr McCaw accepted the gravity of the consequences of the conduct but argued it would be inaccurate to say that the applicant has not been law-abiding. He disputed the Minister's characterisation of the conduct as 'intentional' killing, referring to the Supreme Court's finding that the applicant, by reason of disease of the mind, did not know the nature and quality of the act or, if he did, did not know it was wrong. Mr McCaw submitted that describing the conduct as 'intentional' significantly overstates the applicant's state of mind, given the psychotic episode produced the delusion that led to the events. The applicant's psychotic delusion was said to be the direct cause of the conduct, substantially qualifying moral blameworthiness and the characterisation of intentionality.
7. In response, Mr Murray submitted that the applicant's acquittal turned on the McNaghten rules: the applicant's psychotic illness produced a delusional belief that he had been sodomised; and a belief that he was morally entitled to act as he did. It was submitted that the Court's reasoning concerns moral wrongness, and that there is nothing in the judgement to suggest lack of intentionality or that the applicant lost bodily control; rather, he acted with intent while overcome by a paranoid delusion that included both the hallucination and the belief in moral entitlement. While Mr Murray accepted the mental illness is important in assessing seriousness, he maintained that the conduct remained intentional in the relevant sense and constitutes serious conduct.
8. In considering the nature and seriousness of a non-citizen's criminal offending or 'other conduct' under Direction No. 110, the Tribunal is to have regard to a non-exhaustive range of 'conduct' that may be considered very seriously by the Australian Government and community (paragraph 8.1.1.(1)(a) Direction No. 110). That includes violent or sexual crimes and acts of family violence, regardless of a conviction or a sentence imposed.
9. The applicant's conduct on 5 September 2013 involved extreme violence, culminating in the death of one person and serious injury to his brother-in-law. The absence of a conviction following a non-guilty verdict for reason of mental illness does not prevent the applicant's conduct being characterised as very serious for the purposes of this consideration. Nor does the fact that the violence was precipitated by psychosis and delusional beliefs which, in his mind, morally justified his actions. The consequences were grave and, on any view, devastating for those affected. I therefore find that the conduct can and should be characterised as very serious.
10. However, the applicant was successful in establishing the defence of mental illness in accordance with the McNaghten rules before the NSW Supreme Court. That is, at the time of the incident, he was 'suffering from such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of his act; or, if he did know it, that he did not know that what he was doing was wrong.'[37] As noted by Mathews AJ, 'that the accused [did] not know that what he was doing was wrong, relates to the accused's perception of the moral quality of his actions.'[38] Her Honour stated:

It is abundantly clear that the present accused, by reason of his mental illness, lacked that capacity. Accordingly, I was satisfied on the balance of probabilities that at the time of committing these offences the accused was mentally ill in the relevant sense. It is for this reason that I entered a verdict of not guilty on the ground of mental illness in relation to each of the two charges.[39]

11. In these circumstances, I accept that the applicant's moral culpability for the conduct was markedly reduced, if not effectively absent. The violence occurred while the applicant was suffering from a severe mental illness with psychotic features, which also shaped and directed his intention. It was a singular, clinically driven episode with no pattern of recurrent violence. I also accept Mr McCaw's submissions that the applicant has no criminal record, has not been convicted of any crime, no sentence was imposed because he was found not guilty, he has not otherwise broken the law, and there is no evidence that he has ever provided false or misleading information to the Department. His conduct, on the evidence, does not reflect an enduring lack of respect for the law. The frequency and commutative effect considerations therefore do not arise.
12. I consider the conduct to be very serious given its inherently violent nature and the familial context (discussed in more detail further below). However, taking into account the applicant's diminished moral culpability, the isolated and illness driven nature of the episode, and the absence of any broader pattern of misconduct, I find that the nature and seriousness of the conduct weighs against the grant of the visa, but only to a moderate extent.

Risk to the Australian community should the applicant commit further offences or engage in other serious conduct

1. Paragraph 8.1.2 of Direction No. 110 states, in part:

(1) In considering the need to protect the 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) In assessing the risk that may be posed 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; and

b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i. information and evidence on the risk of the non-citizen re-offending; and

ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). ...

c) where consideration is being given to whether to refuse to grant a visa to the non-citizen -whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

The nature of the harm to individuals or the Australian community

1. The applicant perpetrated extreme violence on the victims. They were stabbed with a kitchen knife as they slept. The applicant first stabbed his brother-in-law in the abdomen and then moved to the deceased and stabbed him in the chest with the same knife. As noted by Mathews AJ in her judgement, the deceased victim died as a result of a single stab wound to the left anterior chest, puncturing the rib, left lung and the heart, and the other victim sustained a potentially life-threatening stab wound to the upper abdomen, lacerating his liver.
2. I find that any further serious conduct by the applicant would likely result in very serious harm to individuals or the Australian community. This assessment, however, must be understood in the context of the circumstances that originally gave rise to his index offending, specifically an isolated episode occurring during a period of acute and severe mental illness. It is also relevant that the applicant is now subject to ongoing clinical management, and that the risk of future deterioration is linked to identifiable underlying factors whose exacerbation could precipitate relapse.
3. I now turn to the question of likelihood under the paragraph 8.1.2(2)(b).

**_The likelihood of the non-citizen engaging in further criminal or other serious conduct

1. In a statement to the Department dated 22 August 2018, five years after the incident, the applicant apologised for his 'crime' and expressed regret. However, he also gave paranoid and counterfactual explanations for the incident and his acts. The applicant stated that he carried out the acts against the victims because 'they attacked [him] and [he] had to defend himself'. He stated that on the night of the incident, the deceased victim threw his leg over the applicant and the applicant told him to take his leg away. The deceased did so but returned his leg after a short while. This happened a few times and after the fourth time, the victim got out of his bed and assisted the deceased victim in pinning the applicant down and assaulting him. The applicant claims that 'this is when [he] attacked them.'[40]
2. In a statement dated 10 June 2022, the applicant stated that he made a 'big mistake' and that he 'deeply regret' his actions. He stated that he has not had any violent or aggressive incidents in custody and accepted that he 'was' mentally ill and that he has been making good progress in his treatment.[41]
3. In his personal circumstances form, submitted to the Department on 11 July 2022 in response to the NOICR, the applicant stated he is diagnosed with schizophrenia and has been undergoing treatment for approximately nine years. He meets with his psychiatrist every fortnight and also receives counselling regarding his mental health. More recently, he has been attending English language classes. He self-assesses that he poses no risk of offending, citing his adherence to medical advice, medication compliance, and participation in programs as required.[42]
4. In his statutory declaration of 14 August 2025, the applicant stated:

22.When I think back on the time of the stabbing, there is so much regret. I wonder why I did that, why I could not control myself. I wish there was any way I could take it back. > > 23. A lot has changed since 2013. My mind is very different now I have been treated. > > 24. If I could speak to the victims, to my brother-in-law and his friend, I would say I am terribly sorry. I regret it, I apologise, I wasn't myself, my mind was a mess and I destroyed all of us. I ruined all our lives.[43]

5. Psychiatric reports submitted to the MHRT note that up until early 2021, 'there was no clear remorse apparent.'[44] Progress reports from December 2021 onwards, however, indicate that the applicant had expressed remorse regarding the index offences.[45]
6. In a decision dated 23 December 2021, the MHRT referred to evidence of Dr Sachin Rai, Forensic Psychiatrist, and Ms Roz Pilgram, Clinical Psychologist. Dr Rai reported that the applicant was 'very apologetic for the index offence and reassures the team that he would not indulge in any violent acts in the future.' He reported that the applicant 'presented with a moderate loading of historical risk factors and a low loading of clinical and imminent violence risk.' Ms Pilgrim noted that the applicant's insight was 'slowly developing.' While he continued to believe the victims had conspired to assault him and retained a sense of righteousness, he affirmed that he would 'never make such a mistake again.'[46]
7. In a letter dated 1 July 2022, Dr Rai advised that the applicant's 'mental and physical state remain stable' and that he 'regularly expressed remorse.'[47] Dr Rai foresaw a successful discharge into the community, subject to a long-term forensic order, providing protection care, treatment, and monitoring by the MHRT.[48]
8. Letters from Ms Raquel Macleod, Senior Social Worker (28 June 2022), Ms Sarah Duncan, Clinical Psychologist (24 June 2022), and Ms Heather Nagle, Social Worker (8 December 2022), observed that the applicant has remained stable and that he receives support from his niece in Melbourne.[49] It was noted that, if granted a SHEV, the applicant would remain a forensic status patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) for the foreseeable future with very stringent requirements and processes that focus on the protection of the public. The applicant would also receive an individualised support package for eventual transition to a 'appropriate placement.'[50]
9. In a letter to the Department dated 9 December 2022, Ms Alison Ryan of RACS, submitted that the applicant's stabilised mental health, remorse and controls of the MHRT meant there was low likelihood of future offending. No issues had arisen during his stay at Morisset Hospital.[51]
10. On 14 February 2023, Dr Rai and Ms Nagle noted that patients in the applicant's position generally follow a lengthy transition process to their future accommodation with assistance from multiple clinical teams, including community mental health teams, statewide forensic mental health services, and various para-clinical/non-clinical teams. These arrangements would be overseen by the MHRT. If the applicant was discharged from Morisset Hospital, it would be on a 'conditional release order' with a view to living arrangements, supports, supervision, and monitoring requirements. Due to his visa status, the applicant did not have access to funding to live in the community or suitable support services required.[52]
11. On 29 February 2024, Dr Rai and Ms Nagle reported the applicant has remained in good compliance with rules and regulations and noted his successful one-night unsupervised overnight leave at a hotel in Morisset town, financed by the Red Cross. The authors noted that forensic patients would generally be linked to mental health supports in the community, NDIS, social housing, HASI Plus (transitional housing program) and other local support services. They stressed that the applicant's lack of visa limited his access to services and restricted full community rehabilitation with various clinical and non-clinical supports.[53]
12. In a decision dated 9 April 2024, the MHRT noted that the applicant is 'quite isolated at the hospital' due to his inability to speak English. It was further noted that the applicant remained 'generally stable' with no psychotic or major mood disorder symptoms and continued positive progress at the Cottages. However, unsupervised overnight leave could not be approved because no funding mechanism existed at that time where the applicant had not yet been granted a BVR. The Tribunal stated, 'without visa resolution the treating team cannot seek any attainable orders, and the Tribunal cannot make any further orders and he is stuck.'[54]

He remains trapped in the forensic system even though it appears from the medical reports he remains stable, compliant and a low risk of violence with current leave, supports, supervision and monitoring. > > A visa is essential to open up opportunities in the community for supported leave and for access to services and other avenues of support and to assist socialisation. It would also permit employment and access to accommodation and training and enable [the applicant] to support his family back home and have the very important cultural support he needs here. [55]

13. In a letter to the Department dated 30 August 2024, Ms Isobel McGarity of RACS urged that the visa be granted so the applicant could integrate safely into the community with available supports, warning that detention could worsen his mental health. She emphasised that his current stability and supports meant he posed no risk to the community.[56]
14. In a Confidential Psychiatric Report to the MHRT, dated 23 September 2024, Dr Chyna Kwek, Psychiatry Registrar, on behalf of Dr Rai, detailed the applicant's psychiatric history. She noted significant agitation, an altercation with another patient and a self-strangulation attempt in 2017, a self-harm gesture in February 2021, and variable engagement in therapy, but recorded generally stable mental health since November 2021 with no psychosis, and well controlled OCD. The overall risk was characterised by a moderate loading of historical factors, low current clinical risk, and low imminent risk of serious physical harm under existing supports, supervision, and monitoring. Ongoing stressors included visa issues, language barriers and limited social network. The report noted that the treating team supported a gradual program of supervised and unsupervised overnight leave, building up to a maximum six nights a week at a cousin's residence in Sydney, with the applicant remaining a forensic inpatient under Morisset Hospital and continuing to receive regular medical reviews.[57]
15. In a further Confidential Psychiatric Report to the MHRT dated 8 April 2025, Dr Tierney Spillane, Psychiatry Registrar, on behalf of Dr Rai, confirmed that the applicant's mental state remained stable during the review period (October 2024 to April 2025). Medication was adjusted for minor OCD symptoms and he continued to engage positively in community day outings and English classes. No incidents of concerned where noted. Dr Spillane recorded limited cognitive flexibility and possible mild cognitive impairment, particularly when stressed. The report recorded the applicant's acknowledgment of 'very intermittent' domestic violence in the past and described the applicant's account of stressors surrounding migration and the index offences in 2013, including persistent fears of being sexually assaulted by one of the victims at that time, which the applicant now identified as mistaken.[58]
16. According to a structured violence risk assessment (HCR-20v3), the applicant's risk of future violence was low, risk of serious physical harm was high, and risk of imminent violence was low.[59] The report further noted no violent ideation or intent, sustained treatment compliance, and no violence during periods of community leave. Protective factors, which were considered to mitigate risk, included the applicant's coping skills and self-control despite ongoing stresses, motivation to work, engagement with and support for medication management, cooperation with authorities, external oversight through the forensic order, and the prospect of improved social supports within a detention centre environment. The report concluded that 'overall, the hospital setting was no more suitable environment for him' and that he 'presented with a low risk of violence including future risk of violence if conditionally released to the detention centre in the foreseeable future.'[60]
17. In an Initial Risk Management Report dated 21 March 2025, prepared for the NSW Community Forensic Mental Health Service (CFMHS) by Ms Erica Harvey, Clinical Nurse Consultant Forensic Mental Health, and Dr Paul Read, Consultant Forensic Psychiatrist, it was stated that the applicant is currently mentally stable, but continues to exhibit residual delusional thinking without affective intensity. He meets diagnostic criteria for schizophrenia, with persistent persecutory delusions, possible auditory hallucinations, cognitive decline, and impaired insight and judgement. He also meets diagnostic criteria for obsessive compulsive disorder, which has at times contributed to behavioural instability.[61]
18. In the authors' opinion, the applicant 'displayed variable insight into his mental illness and need for medication in the longer term.'[62] His judgement is considered poor in relation to risk assessment and medication compliance, though he retains functional capacity in day-to-day hospital activities. They noted his desire to trial periods without medication despite acknowledging past illness ('I was unwell when I started taking [medication], but I am well now. Yes, I want to keep taking it, but I would like to try without it... If it was my decision, I would stop it for a week and see what happened').[63] They also noted his comments that he was 'not insane,' and describing himself as a 'normal person,' who had made a 'huge mistake.'[64]
19. The report assessed the applicant's overall risk of future violence as moderate, stating:

[The applicant] presents with a moderate level of risk for further episodes of physical aggression. He has a moderate level of historic risk concerns; these are static in nature and are less amenable to treatment. He currently evidences a relatively low level of dynamic clinical risk (such factors might be targeted for intervention). Of significance is the persistence of his longstanding delusional belief that he was targeted by the victims; this would remain a focus of potential intervention. > > Overall, the applicant would be viewed as having a moderate level of clinical risk for reactive aggression. This is adequately managed in the current setting... In our opinion, there are reasonable grounds to conclude that [the applicant] requires care, and treatment for his mental health impairment, for his own protection and the protection of others from serious harm. If [he] is inadequately treated, his condition is likely to deteriorate, and he may then pose an increased risk of harm to others...[65]

20. In a statement dated 14 August 2023, Mr [redacted] stated that his 'mother's brother' is related to the applicant. Mr [redacted] stated that he currently lives in an apartment with two other tenants and is happy for the applicant to live with them if he is released from Morissette Hospital.[66] In a further statement dated 26 August 2024, Mr [redacted] stated that he is part of the Hazara community in Australia. His mother instructed him to help the applicant and they began to speak by telephone. Mr [redacted] works as a bricklayer and stated he would be able to support the applicant's reintegration into society, can help him with accommodation for two months initially, and can assist him in finding employment. Mr [redacted] was aware that the applicant had killed a person but noted that the applicant appeared very stable based on their telephone conversations.[67]
21. In a further statement dated 3 September 2025, Mr [redacted] stated that he is an Australian citizen and lives in Sydney. He knows the applicant through extended family on his mother's side and has spoken with him by video and regular phone calls every two to three weeks. Acting on his mother's request, he is prepared to assist the applicant's reintegration by providing two to three months of accommodation, helping with food and basic needs, and guiding him through obtaining a white card and potential employment in construction. He stated that he would call an ambulance or a doctor if he noticed the applicant becoming unwell.[68]
22. In a letter dated 17 July 2025, Mr Callum Hair of Mental Health Advocacy Service, explained that the person who receives a special verdict remains a forensic patient indefinitely and is reviewed by the MHRT at least every six months. He outlined the statutory safeguards applying to such patients. Under s 84(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act, the MHRT must not grant a forensic patient release from a place of detention subject to conditions or unconditional release as a forensic patient, 'unless it is satisfied that the safety of the patient or any member of the public will not be seriously endangered by the patient's release.' He noted that in the State of New South Wales v XY,[69] the phrase 'seriously endangered' is interpreted as encompassing both the nature of the potential harm and the chance of its occurrence. Mr Hair also confirmed that every MHRT panel considering forensic patient matters must comprise of a President or Deputy President who is a legal practitioner; a psychiatrist, psychologist or other suitable expert in mental health; and a member who has other suitable qualification or experience.[70]
23. In a letter dated 21 July 2025, Dr Rai provided an update on the applicant's mental health, risk profile and the practical impact of conditions attached to his BVR. Dr Rai confirmed that the applicant has accessed the community both supervised and unsupervised since December 2019 without any incident of concern and that this pattern of safe community engagement continued even after the grant of the BVR, when electronic monitoring and a curfew were imposed.[71]
24. Dr Rai emphasised that electronic ankle monitoring is rarely used in the forensic mental health system and is not part of the treating team's risk-mitigating strategy, noting that the applicant has never displayed behaviour warranting such a measure. He explained that forensic orders already provide built in monitoring and supervision, and that the addition of an ankle monitor has not altered the team's management of risk. He expressed concern that the device may hinder rehabilitation and heighten risk. Drawing on guidance from the Royal Australian and New Zealand College of Psychiatrists (RANZCP), he noted that electronic monitoring can lead to social stigma and obstruct psychiatric recovery. The applicant has reported that others perceive the monitor as a 'symbol of disrespect,' a perception that could increase stress and potentially retrigger delusional fears of being disrespected - factors relevant to the circumstances of the index offence. Dr Rai also cautioned that prolonged use of the monitor could negatively affect the applicants prospect of employment.[72]
25. Although the applicant has not yet taken up overnight leave in the community, Dr Rai observed that a curfew tied to the hospital address could impede further community integration. He concluded that, but for the visa related barriers, the applicant would likely have been discharged several years ago and reiterated his professional opinion that electronic monitoring is unnecessary and potentially counterproductive to long term rehabilitation and risk management.[73]
26. In a Psychiatric Report dated 11 August 2025, Dr Rai provided a comprehensive update on the applicant's mental health, risk profile and prospects for community reintegration. Dr Rai confirmed that the applicant's mental state remained stable, with well-controlled symptoms of mental disorder and sustained compliance with prescribed medication. He noted that, despite longstanding visa uncertainty, the applicant continued to engage positively in vocational and recreational programmes and English language classes, and to use supervised and unsupervised community leave without incident.[74]
27. Dr Rai explained that the grant of a BVR and subsequent access to Centrelink special benefit payments in July 2025 had improved the applicant's capacity to meet basic needs and participate in community activities. However, he emphasised that a BVR still precludes access to key supports such as NDIS, employment agencies and public or supported housing, which are generally available to patients discharged on a permanent visa. He cautioned that these limitations could increase stress and long-term risk if left unresolved.[75]
28. Dr Rai noted that the applicant was granted overnight leave to stay at his cousin's apartment in September 2024. The leave could not be implemented at the time as he did not have a valid visa, and the Department was reviewing his case. However, since the grant of his BVR in April 2025, the applicant has expressed reluctance to implement his overnight leave with his cousin as his cousin's girlfriend would be living in the apartment with them. The applicant 'persisted with this decision despite the treating team assertively suggesting him to reconsider this kind of leave.' Dr Rai also noted that the applicant's cousin expressed some concerns about the risk of retaliation toward the applicant from members of the community connected to the victim and deceased family.[76]
29. Reassessing risk using HCR-20v3 structured professional judgement tool, Dr Rai again found a moderate historical risk of violence but low current and imminent risk, citing the applicant's absence of violent Ideation, continued treatment compliance, and proven record of safe community leave. He identified protective factors, including motivation to work, motivation for treatment, stable daily routines, and strong external oversight through the MHRT and forensic mental health services.[77]
30. Dr Rai further described the applicant's future management plan, anticipating that he would remain in the low security area of Morisset Hospital for at least six months while continuing to receive professional supervision and support for community leave and English classes. He observed that permanent residency would markedly enhance risk management, enabling access to NDIS, public housing and employment supports, and thereby strengthening the applicant's long-term stability and integration. Overall, Dr Rai concluded that the applicant presents a low risk of future violence, and that his rehabilitation and risk management would be best structured by the grant of a permanent visa, which would allow a structured transition from hospital care to supported community living.[78]
31. In her letter dated 20 August 2025, Ms Nagle reported that on a BVR, the applicant is entitled to employment and access to the special benefit payment which he currently receives. The base rate of the special benefit payment is $263 plus rent assistance (variable) per fortnight. She reported that he would not be eligible for NDIS or public housing on a BVR and will have to privately rent. If the applicant left Morisset Hospital, he would no longer have access to One Door supervision but would still have access to the English language programs at the Multicultural neighbourhood centre in Newcastle. Ms Nagle listed other community supports and community managed organisations able to provide accommodation (pending availability) and psychosocial support. On a permanent residence visa, the applicant would access greater finances through Centrelink as well as public housing and NDIS (pending eligibility).[79]
32. Dr Callum Smith, Consultant Forensic Psychiatrist, was engaged by RACS to conduct an independent risk assessment of the applicant. In a report dated 29 August 2025, based on audio visual interviews on 18 and 25 August 2025, Dr Smith recorded that the applicant expressed willingness to remain on medication for life, stated that he had never been violent towards his ex-wife and maintained that he had no mental illness before arriving to Australia.[80]
33. Dr Smith observed that some of the applicant's responses suggested he was at times mildly thought-disordered, particularly when recounting the index offences, and he considered the possibility of 'unresolved, albeit mostly attenuated, delusions' about those events.[81] Using the HCR-20v3 assessment tool, Dr Smith identified on the historical scale the presence or partial presence of factors including previous violence, relationship problems, mental health disorder, traumatic experiences and issues with treatment or supervision response. On the recent scale, he found no problems with violent ideation, instability, treatment or supervision response, or insight, noting that the applicant recognises his mental illness and the importance of medication, though symptoms of mental disorder remain partially present. On the future scale, he noted problems with living situations and partially present issues with personal support, stress and coping.[82]
34. Overall, Dr Smith assessed the applicant's risk as elevated by historical factors but low and well managed in the current context. He diagnosed schizophrenia, which has responded well to treatment, and found no concerning pattern of treatment non-compliance, remarking that some ambivalence toward medication is common among forensic patients.[83] He considered any compliance concerns are manageable through ongoing forensic status and community treatment orders under MHRT oversight.
35. Dr Smith explained that the applicant should not be expected to recall events surrounding the index offence or his arrival in Australia with precision, because he was acutely psychotic at the time, with impaired reality testing and altered perceptions, and also has limited formal education. He further observed that parts of the applicant's recorded history have been filtered through interpreters or 'transistors and listeners' and compiled in reports that sometimes repeat earlier sentiments without clearly identifying their original source or checking their continuing accuracy.[84]
36. Dr Smith described the risk mitigation framework of the NSW forensic system and MHRT as robust, supported by strong processes and appropriate clinical care.[85] He expressed concern, however, that the BVR conditions, specifically the electronic ankle monitors and curfew, could adversely affect the applicant's mental health and rehabilitation, noting evidence that the applicant feels shame and unwanted attention when wearing the monitor. Dr Smith endorsed Dr Rai's concerns in his report of 11 August 2025 regarding the negative impact of electronic monitoring and curfew conditions.[86]

1. It was submitted in the ASFIC that the risk to the Australian community must be assessed across the only realistic community-based outcomes: remaining in the community on a BVR or residence on a permanent visa. The ASFIC identified, in summary, the evidence that 'goes to risk' as follows: the applicant has no criminal record; the September 2013 conduct was driven by a delusional belief arising from mental illness; there is no history of illicit drug or alcohol use; his record in forensic hospitals is unblemished with no violent or aggressive behaviour; he was non-aggressive on arrest; he has demonstrated long-term compliance with medication and treatment; his treating team and the MHRT support step-down arrangements with regular reviews and reporting to the Minister; the latest MHRT assessment places his risk of future violence as low, mitigated by protective factors; BVR conditions (including electronic monitoring) are a significant source of anxiety and stress and that he has expressed genuine remorse. The ASFIC also referred to observations by the MHRT before the grant of the BVR that the applicant's lack of visa status was impeding rehabilitation.[87]
2. The ASFIC contended that the applicant's single violent act is directly linked to his mental illness, and the key question for the Tribunal is which decision will best support his ongoing mental health management. Refusing a visa would likely worsen his mental health, limit his access to essential services, and thereby heighten the risk of committing an offence. Moreover, there is no evidence that the conditions attached to a BVR would provide any greater protection to the community than the safeguards already in place through his forensic patient supervision, and thus no basis to justify the additional harm of leaving him in a state of uncertainty.
3. The ASFIC foreshadowed and rejected the Minister's likely contention that any risk, however low, is unacceptable if the conduct was repeated. The applicant referred to CRRN v Minister for Immigration and Multicultural Affairs,[88] where the Court noted that in circumstances where the applicant would 'continue to reside in the community' even if the visa were cancelled, assessing how risk varies across the realistic outcomes of the decision is a necessary step in rational reasoning, as 'any risk' cannot be treated in the abstract.[89] It was submitted that, in any event, the Tribunal must still assess the question of risk, unacceptable or not, according to the different potential outcomes realistically available. Refusing the visa would raise, and an RSV would lower, the risk of reoffending. Resolving this in the applicant's favour accords with the Direction's objectives and longstanding authority that community protection lies at the heart of the discretion exercised under s 501. Therefore, this consideration supports the grant of the visa.[90]
4. In the RSFIC, the Minister submitted that there is a 'real and moderate risk' of the applicant engaging in further criminal or other serious conduct due to the following reasons: historic lapses in medication adherence, both during treatment in Iran and later in Australia, including an occasion in May 2017 when he was discovered to be stockpiling his supply and, when confronted, denied any need for medication or any mental illness; incidents of violence towards other patients, including one on 10 September 2017; mixed evidence of genuine remorse for the 2013 conduct; his wife and children in Afghanistan have severed contact with him and provide no support; he has a history of family violence, including striking his sister­ in-law with a stick, fracturing her arm, and beating his wife whenever she beat their child; he has no social network; and he has expressed a willingness to cease taking his medication and shown a lack of insight into the risks of doing so. These matters, the Minister submitted, evidence poor judgment and continuing risk.[91]
5. The Minister accepted that some countervailing matters raised by the applicant could be acknowledged but submitted that others are inconsistent with the evidence. Specifically, the claim that the applicant's hospital record is 'unblemished' and without incidents of violence is contradicted by the September 2017 altercation, and the assertion of consistent compliance with medication.
6. It was submitted that the applicant's 'but for' contention that absent mental illness the applicant would pose no greater risk than any other person misconceives Direction 110. The Tribunal must assess this applicant as he stands, by reference to his proven conduct and psychiatric history, not a counterfactual healthy comparator. Against that frame, reliance was placed on the Forensic Consultation and Assessment Team (NSW Community Forensic Mental Health Service) report dated 21 March 2025, which assessed that the applicant presents a moderate level of risk for future episodes of violence (increasing should he become acutely psychotic), shows partial insight into his illness, treatment needs and the risks he poses when unwell, has minimal personal supports, has indicated he will become non-compliant with antipsychotic medication after discharge because he believes he is no longer mentally ill (a change likely to precipitate deterioration), has a limited range of protective factors, and overall carries a moderate clinical risk for reactive aggression.[92]
7. The Minister then addressed the claim that a permanent visa would reduce risk by unlocking access to NDIS, Disability Support Pension, and NSW social housing. It was submitted these are not a direct or inevitable legal consequence of a set-aside decision and the evidence does not show a meaningful risk differential between MHRT-managed transition on a BVR with existing supports and MHRT-managed transition on a permanent visa with potential additional programs. It was submitted that this was for two reasons. First, the evidentiary foundation for asserting that current supports are inadequate, or would materially improve with permanency, is scant and the MHRT does not identify which specific supports the applicant would obtain or how they would improve rehabilitation. Employment is already available to the applicant under the current BVR, so any incremental benefit associated with a permanent visa is unclear. Second, the supporting materials are high level. The letter from the Hunter New England Local Health District (HNELHD) speaks in general terms, and the ineligibility claims for DSP, NDIS and NSW housing do not show that this applicant would actually secure those services or that they would reduce risk. While the Minister accepted that non-residents lack certain entitlements, that does not establish that refusal increases risk or that grant reduces it. The evidence shows receipt of a special benefit, existing caseworker assistance, and an intention to remit Centrelink funds to his children rather than apply them to rehabilitation.[93]
8. Relying on _Minister for Immigration and Border Protection v BHA1_7,[94] the Minister submitted that access to the NDIS is not a 'direct and immediate' statutory consequence of the Tribunal's decision.[95] The Minister, nevertheless, accepted that CRRN reaches the opposite conclusion and binds the Tribunal and further conceded that NDIS access is a permissible consideration 'in principle.' It was maintained, however, that the applicant has not shown that NDIS access would, on the facts of this case, appreciably improve rehabilitation.
9. The Minister further contended that visa status does not change the community risk assessment. The MHRT remains the clinical gatekeeper in either visa outcome (BVR or RSV) and will set the operative level of risk by reference to clinical progress, adherence, supports and monitoring. The same forensic controls, including conditions, recall powers and active psychiatric management, will be applied whether the applicant holds a BVR or an RSV. Even if one assumes that permanent residency would unlock additional supports, prompt an earlier or broader transition approved by the MHRT, and reduce reoffending once in the community, the converse also follows. That is, absent those supports, the MHRT would slow transition to keep risk within acceptable bounds. The consequences of a visa refusal would therefore be a decelerated transition for the applicant into the community rather than increasing community risk.[96]
10. The Minister submitted that this Primary Consideration is directed at protecting the Australian community, not to trading off that protection for rehabilitation gains. On the Minister's analysis, the risk factors and clinical assessments carry greatest weight, and the community would be better served by slower rather than accelerated exposure. The Minister concluded that primary consideration 1, particularly its first limb, should weigh very significantly in favour of refusal.[97]
11. In reply, the applicant submitted whether the decision under review is affirmed or set aside, the applicant will remain a forensic patient living in the community. Therefore, the Minister's claim of a real and moderate risk of reoffending is of limited practical meaning. It was also noted that all parties agree that the 2013 conduct stemmed from mental illness, making the key issue which outcome best supports the Direction's principle of protecting the community by managing that illness.[98]
12. It was contended that the MHRT, with recognised institutional expertise, has consistently found the applicant's risk to be low, as has Dr Smith, and that the MHRT's orders reflect confidence in his safe release. The MHRT's findings, and the support the applicant would continue to receive as a forensic patient, should, therefore, be given significant weight. It was argued that the Minister's concerns, such as lapses in medication and mixed evidence of remorse, do not disturb those expert conclusions.
13. It was further submitted that the supports available under a permanent visa are relevant to assessing risk, because the MHRT has found their absence has hindered the applicant's rehabilitation. By contrast, it was argued that BVR conditions, including curfews and electronic monitoring, would impede reintegration and harm mental health without providing offsetting community protection.[99]
14. In his closing submissions at the hearing, Mr McCaw submitted that visa status uncertainty is a stressor that increases risk and deprives the applicant of 'therapeutic optimism.' A permanent visa would likely unlock more government support services, including NDIS and social housing eligibility that reduce risk. The MHRT is the specialist body best placed to calibrate and manage risk with the support of treating clinicians and social services, but the applicant's visa status has obstructed his rehabilitation. Mr McCaw accepted that the applicant presently has access to special benefit payments on a BVR and could engage in employment if released, but it was submitted that BVR conditions, such as monitoring and curfew, can impede pro-social reintegration and his employment prospects. Mr McCaw referred to the applicant's reported reluctance to accept Mr [redacted] offer to provide him with accommodation and assist with finding employment and submitted that the applicant now wishes to accept the offer.
15. Mr Murray submitted in closing that, in overview, the applicant's case in substance is that, because he presently cannot be removed from Australia, he should be granted a permanent visa in order to obtain services that may assist his rehabilitation. This, he contended, was framed as community protection and risk reduction. It was submitted that granting a permanent visa for that purpose is wholly at odds with the intent and principles of Direction 110, which treats permanent residence as a privilege to be withheld where serious conduct has occurred. To grant a visa simply to access social supports reserved for permanent residents would, it was said, invert that policy.
16. Mr Murray summarised the applicant's contentions as risk arising from visa status uncertainty and the potential assistance of NDIS eligibility. He submitted the Tribunal should not find it 'likely' that the applicant would be accepted as a NDIS participant. If granted a permanent visa, the applicant will become eligible to apply for NDIS , however, none of the experts could assess eligibility beyond that point. The Minister characterised the evidence of likely support on a permanent visa as a broad generalisation and noted that the applicant now has stable funding on a BVR, a development since the MHRT's 'limbo' finding. The Minister further noted Ms Nagle's letter that transitional accommodation would be available to the applicant on a BVR, in addition to possible accommodation with Mr [redacted].
17. The Minister further submitted that disputes over risk assessment, including deferring structured tools and Dr Smith's report, are largely immaterial because both Dr Smith and Dr Rai accepted that the MHRT is robust and capable of protecting the community by calibrating the applicant's management plan, even if additional external stressors such as visa uncertainty arise. Accordingly, it was contended that there would be no net impact on community protection.

1. I must 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. I have found the applicant's conduct in 2013 to have been very serious.
2. The evidence suggests that the applicant's insight into his acts has progressed very gradually. In his August 2018 statement, the applicant apologised but continued to offer counterfactual explanations for the 2013 acts. In later statements in 2022 and 2025, he acknowledged his mental illness and expressed sustained regret. Under cross examination at the hearing, he accepted responsibility for his 2013 conduct, acknowledged that the belief which motivated it was a hallucination, and accepted that he was never morally entitled to commit the acts.
3. Clinical records submitted to the MHRT show that the applicant did not exhibit clear remorse until early 2021. In December 2021, the MHRT noted evidence that he had begun to express remorse and that his insight was 'slowly developing,' while retaining a residual sense of righteousness about the events. Reports in 2022 recorded clinical stability, regular expressions of remorse, partial insight into his mental health, and recognition of the need for ongoing medication to maintain stability.[100] More recent clinical records state that the applicant accepts the offences were driven by mental illness and that his conduct was wrong. Psychiatric reports prepared in September 2024 and April 2025 for the MHRT, stated that the applicant has at least partial insight into his 'mental disorder', acknowledging that he suffers from a mental illness.[101] In the April 2025 report, Dr Spillane noted that the applicant 'considered the sexual assault thoughts at the time of index offence as 'wrong, mistake and not true.' In his report, Dr Smith observed that some of the applicant's responses suggested he was at times mildly thought-disordered, particularly when recounting the index offences, and he considered the possibility of 'unresolved, albeit mostly attenuated, delusions' about those events.[102]
4. The March 2025 CFHMS report emphasised the applicant's non-adherence to medication in 2017, his stated desire to trial periods without medication, and other remarks made at the CFHMS interview. The report adopted a cautious counterbalance, expressing the opinion that the applicant 'displayed variable insight into his mental illness and need for medication in the longer term.'
5. In contrast, Dr Smith reported that the applicant has a reasonable level of insight into the offending, his risk, or why it is important to take his medications. He observed that some ambivalence toward medication is common among forensic patients. In his oral evidence, Dr Smith stated that he did not share the same level of concern expressed in the CFHMS report. While accepting the issues identified in the report, he disagreed with the weight attached to them, including the applicant's expressed desire to trial a period without medication. He explained that, in practice, any release would be subject to MHRT conditions, either under a forensic order or a Community Treatment Order (CTO). He noted that forensic patients generally understand that breaching medication requirements will result in a return to forensic status.
6. On the basis of the evidence before me, I accept that the applicant's remorse, although slow to emerge, is now genuine and sustained. His understanding of the index offences, the role of mental illness, and the necessity of ongoing medication has likewise developed overtime. Nevertheless, the weight of the evidence indicates that this insight, while significantly improved, remains partial and qualified and therefore requires continuing clinical and forensic oversight. This continuing need for oversight informs my assessment of future risk below.
7. The evidence before me demonstrates sustained clinical stability and progressive rehabilitation since the 2013 incident. The applicant has maintained a stable mental state since late 2021, with his obsessive-compulsive symptoms well controlled. he has completed extensive supervised and unsupervised community leave without incident; and engages consistently in therapeutic, educational and vocational activities. These matters suggest significant rehabilitation within the forensic framework.
8. The applicant's earlier lapses in medication (first in Iran and again briefly in May 2017) must be assessed in its proper context. Non-adherence in Iran, which was first mentioned by the applicant to Professor Greenberg in 2014 and thereafter repeated in subsequent reports, remains vague and largely unexamined, with no clear detail about the treatment prescribed or the circumstances in which he ceased it. The May 2017 incident occurred approximately four weeks after the applicant was admitted to the Forensic Hospital and still acutely unwell.[103] At the hearing he explained that he hid his tablets under his mattress for one night to demonstrate that he felt well without them, believing at the time that he no longer required medication. Although he did not disclose this episode to Dr Smith, the evidence overall shows sustained adherence since that time and a consistent acknowledgement of the need for ongoing medication.
9. As to the comments reported by CFHMS in 2025 about the applicant's desire to cease medication for one week, I accept Dr Smith's evidence that the applicant did not convey the same position to him and that some degree of ambivalence toward their medication is present in many forensic patients. On the totality of the evidence, these remarks do not necessarily demonstrate any present intention to discontinue treatment, particularly in light of the applicant's stated understanding that any release would be conditional on strict compliance with prescribed medication.
10. Reported incidents of family violence in Afghanistan likewise require careful evaluation. Clinical records refer to repeated assaults. In a psychiatric report dated 5 May 2020, Dr Ilyn de Leon, writing on behalf of Dr Rai, stated 'Mr [redacted] married his wife Mahgol in his late twenties. He stated that he had a good marriage overall but admitted to beating his wife whenever she beat a child because the child was crying.'[104] The statement appears to echo Professor Greenberg's 2014 report, in which he recorded that the applicant 'had a good marriage but admits that he would beat his wife if she beat a child because the child was crying.'[105] In a table under the heading 'Violence risk assessment,' Dr de Leon again stated that the applicant 'in his 20s, admitted to beating his wife whenever she beat their child' and immediately below noted that the applicant 'married his wife, Mahgol, in his late 20s.'[106] These statements appear to have been repeated verbatim and without critical examination in every subsequent psychiatric report.
11. At the hearing, however, the applicant gave a different and more limited account, stating that he had once pulled his wife's hair after she put her hand on their child's mouth to stop him crying. In his evidence, Dr Rai confirmed that the applicant had consistently given this same account during treatment sessions. When asked why this version was not accurately reflected in the psychiatric reports written on his behalf, Dr Rai acknowledged that this had been an oversight. I also place weight on Dr Smith's evidence in his report that accounts of experiences 'are filtered through other variables. In this case a transiter and a listener. The listener will listen, interpret, and then express in written form things in a manner that is to some degree subjective.'[107] On balance, while I acknowledge the shortcomings in the evidence, I am prepared to accept the applicant's oral testimony as the most reliable account of the incident. However, I also find that his attempts during the hearing to downplay the seriousness of this single act of violence, describing it as an insignificant private family matter that happens in every family, demonstrates poor judgement and an incomplete appreciation of its gravity. This lack of judgment is further reflected in the applicant's remarks to Dr Smith during his review that he had 'never' been violent towards his wife. His explanations at the hearing that he had already recounted the incident many times and did not think it important, is unconvincing and self-serving.
12. Regarding the incident involving the applicant's sister-in-law, there is reason for caution about the accuracy of its reporting in successive psychiatric reports. Earlier reports described the incident as the applicant striking his sister-in-law with a stick after she touched her child while making bread, attributing the conduct to obsessive-compulsive symptoms.[108] Dr Smith, however, recorded a slightly different version: that the sister-in-law's baby was touching flour with unclean hands, that when the applicant asked her to remove the baby she insulted him, and that he retaliated in 'the heat of moment.'[109] While the details differ and remain open to some dispute, the incident is remote in time and appears to have occurred during a period of mental illness and has not been repeated. In these circumstances, while the event forms part of the applicant's historical profile, it should be accorded limited weight in assessing current or future risk.
13. The Minister also referred to clinical notes of an assault on another patient in September 2017, said to have followed an alleged threat by the victim the previous day.[110] I note, however, that when the applicant was assaulted by another patient in December 2019, he showed no sign of retaliation,[111] and that there is no evidence of comparable conduct since September 2017.
14. Against this background, I find that the current and near-term risk of reoffending is low but not negligible. Static factors, including the seriousness of the index offence and the historic incidents above, cannot be ignored. However, dynamic indicators, including the absence of violent ideation, a long record of safe leave, and successive structured HCR-20v3 assessments in a forensic setting, support a finding of low present risk. In his August 2025 report, Dr Rai referred to the presence of 'many internal, motivational and external protective factors' to mitigate against risk of violence if released into the community.[112]
15. The CFHMS March 2025 report adopted a more conservative view, noting residual delusional ideation and variable insight. However, both the treating team and Dr Smith assessed the risk of imminent violence as low and emphasised the robustness of the MHRT and associated treatment mechanisms in promptly responding to any change in presentation. These safeguards operate independently of the type of visa and ensure that any community exposure remains under strengthened stringent clinical control.
16. Nevertheless, I accept that visa status affects the practical environment in which risk is managed. The assessment must, therefore, be undertaken against the two realistic post-decision settings, which I find in accordance with the submissions of the parties to be: residence in the community on a BVR with MHRT oversight or residence on a permanent visa with the same MHRT oversight. Despite the passage of the Home Affairs Legislation Amendment (2025 Measures No. 1) Act 2025 (discussed further below), both parties' accepted that removal is not presently available and that MHRT remains the operative gatekeeper in either scenario, able to adjust leave and recall the applicant if risk escalates.
17. The applicant was granted a BVR on 25 June 2025. The applicant contended that, in the BVR setting, visa uncertainty, together with curfew and electronic monitoring conditions, acts as a continuing stressor that hampers reintegration and can elevate dynamic risk. It was further submitted that lack of access to services, such as NDIS and public housing, limits access to stabilising supports, compounding those stressors. The Minister did not dispute that the applicant would remain on a BVR if refusal were affirmed, but submitted that, in any event, the MHRT would adjust leave and community access to keep the risk within acceptable bounds. To the extent that BVR conditions restrict liberty, the Minister argued, they operate only to reduce short term risk and are backed by statutory offences for breach.
18. Clinical reports and longitudinal observations have repeatedly referred to uncertainty over visa status being 'probably the most significant issue' in the future for the applicant,[113] resulting in elevated anxiety,[114] feelings of hopelessness and frustration[115] and 'significant loss of dignity and value in his life.'[116] In his report, Dr Smith likewise observed that uncertainty about visa status is likely to affect the applicant's mental health and that 'further progress in terms of mental state is just as likely linked to the situation associated with his visa - additional monitoring requirements, uncertainty, and impacted rehabilitation activities such as leave.'[117]
19. While it might be argued that a BVR would partly alleviate some of the uncertainty around visa status, its inherently temporary character, being a visa granted pending removal, means that anxiety and instability would remain. The passage of Home Affairs Legislation Amendment (2025 Measures No. 1) Act reinforces this likelihood, ensuring that anxiety and uncertainty about the applicant's continued ability to remain in the community would persist. I accept, however, that on a BVR the applicant can work and receives a limited Special Benefit, but he cannot access NDIS or public housing, remains subject to conditions, including electronic monitoring and curfew and faces the prospect of removal to a third country. These conditions are not part of his clinical risk management plan and, according to Dr Rai and Dr Smith, may impede reintegration and add stressors without enhancing public safety. I note Dr Rai specifically observed that ankle monitoring could become a source of added stigma and shame and could create an additional barrier to obtaining suitable employment and accommodation.
20. In relation to the permanent visa scenario, the applicant contended that the grant of permanent residence would lower risk by providing stable legal status and eligibility to apply for mainstream supports already referred to. According to the clinical evidence, these services are important for maintaining medication adherence and stable accommodation, which are among key protective factors against relapse and future violence. The Minister accepted that such services can be taken into account in principle but submitted that there is scant case specific evidence that this applicant would in fact have access to them or that they would materially alter the risk assessment given the MHRT's continuing gatekeeping role. The Minister emphasised that access to these supports is a consequence of permanent residence and cannot itself justify granting the visa.
21. I consider the Ministers submissions to have some force. There is an element of speculation in the proposition that, with a permanent visa, the applicant would be approved as an NDIS participant and in the range of services he might receive under the scheme. Even so, I'm mindful of evidence before me that he is likely to meet basic eligibility and that many forensic patients do gain NDIS access.[118] Taking that into account, I am of the view that, in the particular circumstances of this case, a permanent visa would likely reduce stress and strengthen protective factors by enabling access to broader supports and services, even though entitlement to and availability of those services are not yet assured.
22. A further dimension concerns the applicant's social supports. Mr [redacted] previously provided a written statement offering to accommodate him for two to three months post release and to help secure employment for him. Mr [redacted] resides in an apartment in Sydney CBD with his female partner. In his August 2025 report, Dr Rai noted that, since the grant of his BVR, the applicant has expressed reluctance to stay with Mr [redacted] due to the presence of Mr [redacted] partner in the apartment. At the hearing, however, the applicant claimed that it was his cousin who had withdrawn the invitation. This explanation is inconsistent with the evidence of Dr Rai, Ms Nagle and Mr [redacted], and I do not accept it. Although the applicant subsequently stated he was willing to accept the offer, I consider that part of his testimony inconsistent with Mr [redacted] evidence, unreliable and self-serving. I also consider the absence of reliable support from [redacted] is likely to hinder the applicant's reintegration, necessitating alternative supports to maintain rehabilitation in the community.
23. This evidence is significant when considering the two immigration outcomes. Under a BVR, the applicant's inability to count on familial or social supports to assist with accommodation and act as 'supervisor' when on leave, compounds the instability associated with the temporary status, limited entitlements and monitoring conditions, and could aggravate the very stressors identified by clinicians as impeding rehabilitation. By contrast, a permanent visa while not guaranteeing the availability of public housing or NDIS services, could at least broaden the applicant's access to housing and community-based supports capable of substituting for the absent family assistance.
24. Weighing these competing positions, several points emerge. First, the core risk management framework is identical in both scenarios: the MHRT imposes staged leave, conditions and recall powers, a regime that multiple experts consider robust and responsive. Secondly, the BVR setting adds stressors, including status uncertainty and compliance conditions, particularly in the absence of reliable social supports that the treating team regards as protective. Clinical evidence indicates that these factors may impede rehabilitation without providing any additional clinical safeguard beyond the MHRT's orders. Thirdly, while permanent residence is likely to enhance protective factors by enabling access to mainstream services, the extent and timing of any particular support, such as NDIS or public housing, remain contingent and not yet confirmed on the evidence.
25. On that basis, the evidence indicates that the applicant's current and short-term risk remains low under the MHRT management and oversight in either setting, although static historical factors mean it cannot be reduced to nil. The practical difference lies in whether a service-rich environment with secure visa status better sustains the protective factors identified by clinicians than a status-insecure environment constrained by continuing BVR conditions. Both Dr Rai and Dr Smith consider the former preferable in principle.
26. The Minister, by contrast, highlights the countervailing uncertainties of actual service uptake and the MHRT's capacity to slow or adjust transition to keep risk within acceptable bounds, resulting in gradual exposure and reduced risk. However, MHRT's past decisions demonstrate that, even with a cautious or delayed pathway, it would ultimately seek to transition the applicant into the community. If that transition were to occur while the applicant remained on a BVR, based on the clinical evidence, the combined stressors of status insecurity, BVR conditions and lack of familial or social supports, could heighten the risk of relapse and violence. By contrast, a transition supported by the stability and services associated with permanent residence would better sustain the protective factors identified by the treating clinicians. The evidence, therefore, supports a finding that both visa pathways maintain community safety at a low level of risk, but that permanent residence provides a firmer and more protective foundation for long-term stability and relapse prevention. I do not accept that recognising the applicant's likely access to services as a protective factor equates to granting a visa for the purpose of obtaining those services as the Minister contended. The potential for such services to reduce the risk of reoffending is only one factor to be weighed in deciding whether the visa should be granted or refused on character grounds.
27. Finally, the purpose of the SHEV sought is to provide protection from persecution or significant harm in Afghanistan, and the applicant intends to remain in Australia on that basis. In my view, neither the protective purpose of that visa nor the intended duration of stay alters the assessment of risk already made under the two realistic scenarios of residence on a BVR or a permanent visa.

Conclusion as to protection of the Australian community

1. Considering the evidence as a whole, I have found that the index offending was unquestionably very serious, involving fatal violence within a familial setting. I accept that it arose in the context of an acute and severe psychotic illness, that it was an isolated event, and that the applicant's moral culpability was significantly diminished. I am, nevertheless, conscious that the Australian community's tolerance of any risk of future harm decreases as the potential harm increases. I am also mindful of the grave consequences should conduct of this kind be repeated, the continuing need for ongoing, structured psychiatric care under strict supervision, and of the applicant's limited time living independently in the community since the offending.
2. However, I accept that the applicant's remorse, though slow to emerge, is now genuine and sustained; that he has demonstrated compliance with ongoing treatment and medication; and that his insight into his mental illness has significantly improved but remains partial. I also accept the clinical evidence indicating that he now presents with a low risk of violence, including a low future risk of violence, and that he would remain under the strong external oversight of the MHRT and forensic mental health services. I further accept the expert opinion that a permanent visa would likely strengthen protective factors by reducing uncertainty and supporting stable access to treatment.
3. Balancing these factors, overall, I give the protection of the Australian community mild to moderate weight against the grant of the visa.

Whether the conduct engaged in constituted family violence

1. Paragraph 8.2 of Direction No. 110 provides that the Tribunal must have regard to family violence perpetrated by the non-citizen when deciding whether to refuse the visa grant.
2. In the RSFIC, the Minister emphasised that the two victims were members of the applicant's extended family. The injured victim was the applicant's brother-in-law (his wife's brother), and the deceased victim was his wife's brother-in-law. On that basis, the Minister contended that the conduct amounted to 'family violence' within the meaning of Direction No. 110, as it could be characterised as violent behaviour that coerces or causes fear. It was further contended that although 'family' is not defined in the Direction, it extends to siblings-in-law, consistent with ordinary usage and with the Family Law Act 1975 (Cth), under which, for the definition of 'family violence' in s 4AB, a 'family member includes a relative such as a spouse's brother (ss 4(1AB), 4(1AC)(c), (g)). The Minister contended that acts of family violence are to be treated as 'very serious' under Direction No. 110 and, accordingly, this consideration should weigh very strongly against the visa grant.
3. In his ASFIC in reply, the applicant submitted that his conduct does not constitute family violence within the meaning of the direction. He argued that the Minister's reliance on the Family Law Act 1975 (Cth) definition of family member is misplaced, as the direction provides its own definition.
4. It was submitted that the Minister's approach also overlooked that family violence is a composite concept involving a pattern of coercion or control, as recognised in R v Burton[119] and XXBN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[120] Treating any violence between relatives as family violence would capture conduct lacking those hallmarks, for example, a spontaneous fight between siblings.
5. Relying on Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)[121] and LEAU and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration),[122] the applicant stressed that whether conduct constitutes family violence is a question of fact. In this case, there is no evidence of controlling or coercive behaviour, no relevant power imbalance, and no indication that the family relationship motivated the offending. Rather, the conduct stemmed from a delusional fear in which the applicant was himself vulnerable. Accordingly, while serious, the conduct does not meet the definition of family violence, and this factor should be accorded neutral weight.
6. In his closing oral submissions, Mr McCaw argued, in essence, that the September 2013 incident does not constitute family violence under Direction No. 110. He maintained that family violence is a composite phrase, denoting a context of coercion or control within a family relationship and cannot be reduced to mere violence between relatives. The Minister's broader reading, he argued, would re-victimise those acting in self-defence and ignore the fact-specific nature of the definition. Mr McCaw submitted that the applicant's conduct, driven by psychotic delusion and perceived self-defence against rape, lacked any pattern of coercion, control or power imbalance. On the contrary, the applicant was the vulnerable party. Even if the Tribunal rejected his definitional argument, Mr McCaw contended any finding of family violence should carry only minimal weight.
7. The Minister submitted at the hearing that family violence in Direction No. 110 is a defined concept, not a composite phrase requiring extra-textual elements such as power imbalance. It was submitted that the September 2013 incident clearly falls within the definition of family violence in the Direction ('violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful'), with assault expressly included as an example. It was further submitted that the definition could technically cover defensive acts, such as a battered spouse striking an abuser, but stressed that paragraph 8.2 allows the seriousness of the conduct to be weighed so that defensive or trivial cases attract little weight. He distinguished the applicant's case from such scenarios, noting that vigilantism is not endorsed and that the Supreme Court's findings turned on moral incapacity rather than pre-emptive self-defence.
8. Having regard to the text of Direction No. 110, I find that the September 2013 incident constitutes family violence within the meaning of the Direction. Although both victims were related to the applicant, it is the victim who was his brother-in-law that makes the conduct, namely assault resulting in serious injury, fall clearly within the enumerated examples.
9. The circumstances in which the violence occurred, however, greatly reduce the weight this factor carries. The acts were driven by psychosis and delusional fear; there was no pattern of domination or control; and the family relationship itself played no part in motivating the violence. The Supreme Court's findings that the applicant lacked the capacity to understand the moral quality of his actions underlines that conclusion. These circumstances mean that the September 2013 incident has limited significance when assessing the seriousness of the family violence for the purposes of Direction No. 110. Paragraph 8.2 requires decision-makers to gauge the seriousness of any family violence, by reference to factors such as frequency, cumulative effect and rehabilitation.
10. Accordingly, while the conduct satisfies the definition of family violence, having regard to the matters discussed above, I give this consideration only slight weight in favour of refusing the visa.

The strength, nature and duration of ties to Australia

1. Paragraph 8.3 of Direction No. 110 provides that:

(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:

i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii. 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 arrived in Australia in May 2013 at approximately 35 years of age and was released from immigration detention into the community on 31 July 2013. Shortly thereafter, on 5 September 2013, the applicant carried out the index offending and was arrested. He has now resided in Australia for about 12 years, the majority of that time spent in custody or in forensic mental health facilities. From around 2021, he has been granted increasing periods of leave into the community. He has never been employed within Australia.
2. The applicant has no immediate family in Australia. His ties here are limited to a second cousin, Mr [redacted], and a niece, Ms [redacted]. At the hearing, Mr [redacted] stated that he does not know the applicant personally and is assisting him at the request of his mother on behalf of the applicant's relatives. He further stated that he is not aware of the applicant having contacts with anyone else.
3. In a personal character reference, Ms [redacted] stated that the applicant was a good person in Afghanistan and did not commit any other crimes.[123] No further evidence was provided in relation to the nature of Ms [redacted] connection with the applicant, and she did not give evidence at the hearing. In her Psychiatric Report dated 23 September 2024, Dr Kwek observed that the applicant has 'practically none [sic] social network including any contact with relatives in another state.'[124]
4. It was submitted in the ASFIC that the weight to be given to this consideration should be assessed in light of the applicant's history as a forensic patient. His capacity to develop community ties has been materially constrained by prolonged institutionalisation, rather than by personal disengagement. I have taken these contentions into account, together with the fact that the applicant's conduct occurred soon after his arrival in Australia while he was experiencing psychosis.
5. Overall, I consider that this factor weighs in favour of granting the visa, but only slightly.

The best interests of minor children in Australia

1. Paragraph 8.4 of Direction No. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. There are no minor children in Australia affected by this decision. Accordingly, I give this consideration neutral weight.

1. Paragraph 8.5(1) of Direction No. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a 'norm', expects the Government would not allow them to enter or remain in Australia.
2. Paragraph 8.5(2) of Direction No. 110 directs that 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 is 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 certain conduct, including 'acts of family violence' and 'commission of serious crimes against women, children or other vulnerable members of the community'.
3. Paragraph 8.5(3) of Direction No. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4. Paragraph 8.5(4) provides that decision-makers must apply the Government's stated expectations and are not to conduct an independent assessment of those expectations in light of the individual's circumstances.
5. The applicant submitted in the ASFIC that, properly constructed, paragraph 8.5 of Direction No. 110 favours the grant of a visa because the Australian community's deemed expectation is that decision-makers will choose the outcome that best protects the community from risk. Relying on FYBR v Minister for Home Affairs,[125] it was argued that the community expectation is not to be determined by independent fact-finding but is to be discerned from the Direction itself, which aligns with the expectations of the executive government.
6. The applicant contended that Direction No. 110 assumes a binary choice (visa grant or refusal leading to removal) which does not fit this case. Relying on PLQF v Minister for Immigration, Citizenship and Multicultural Affairs[126] and DVRL v Minister for Immigration and Citizenship,[127] the applicant argued that, following the high court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs,[128] a non-citizen with a protection finding and no prospect of removal cannot lawfully be detained and will remain in the community whether or not the visa is granted. On that basis, it was argued, it would be irrational to treat visa refusal as inherently protective. The applicant submitted the Tribunal must therefore compare the two realistic outcomes (continued residence on a BVR or residence on a permanent visa) and give greater weight to the course that better safeguards the community. It was submitted that refusal would perpetuate visa related uncertainty and impede access to housing, mental health and welfare supports identified by the applicant's treating team and the MHRT as protective factors, whereas grant would facilitate those supports and thereby better achieve the protective purpose of Direction No. 110.
7. In response, the Minister submitted that paragraph 8.5 must be interpreted and applied based on the Government's stated view within the Direction itself, rather than through any independent or case specific assessment of what the Australian community may expect and that despite NZYQ, paragraph 8.5 is capable of application where the person will not be removed immediately. The Minister referred to SWKZ and Minister for Immigration, Citizenship and Multicultural Affairs[129] and submitted that the direction operates beyond a 'binary scenario' as there are different benefits on a permanent visa as opposed to a temporary BVR where the person may be subject to removal at a later point.
8. The Minister submitted that paragraph 8.5(2) of the Direction applies because the nature of the character concerns and offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This is specified at paragraph 8.5(2)(a) to include "acts of family violence" which the Minister contends is the case in the index offence.
9. At the hearing Mr McCaw advanced two related arguments. First, he pointed out that the verdict in the applicant's criminal proceedings was act proven but not criminally responsible, and therefore he had not breached Australian laws in the sense contemplated by paragraph 8.5(1). Secondly, he maintained that the applicant's index offending was not an act of family violence and therefore 8.5(2)(a) did not apply.
10. As I have explained elsewhere,[130] the expectations of the Australian community in paragraph 8.5 of Direction No. 110 are stated in a normative matter. The focus of this Primary Consideration is not on the eventual physical outcome of whether the non-citizen is removed from Australia, but at the decision to cancel or refuse a visa based on character concerns. Direction No. 110 makes clear that the Australian community holds two key expectations: first, that non-citizens will obey the law in Australia, and second, that the Government should refuse or cancel the visas of individuals who raise serious character concerns.[131] The first reflects the normative standard of conduct expected of non-citizens, and the second reflects community expectations regarding the outcome of the exercise of the power conferred by s 501 in respect of a particular person who has not met that standard.[132]
11. The consideration concerns the expectations of the Australian community as a whole. In applying it, the Tribunal is to rely on the Government's stated views, rather than independently assessing the community's expectations in the particular case. The expectation, as articulated in the Direction, applies to the person's visa status, and the decision to refuse or cancel a visa on character grounds, even where removal is not immediately possible, is the expression of this norm.[133]
12. Where a person whose visa has been cancelled is the subject of a protection finding may be granted a BVR to prevent indefinite detention while removal arrangements are being made. That administrative step does not negate or reverse the normative expectation expressed in paragraph 8.5. Referring to paragraph 8.5 of Direction No. 99, Horan J in RCLN v Minister for Immigration, Citizenship and Multicultural Affairs[134] noted that the Direction does not 'require decision-makers to moderate the expectations of the Australian community in the light of the specific circumstances of the non-citizen.' [135] His Honour stated:

The articulation of community expectations is directed to the kinds of criminal conduct or other serious conduct in respect of which the Australian community expects that the Government can and should refuse or cancel visas, "regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community"... > > The assessment of community expectations is therefore not a matter of evidence, and does not turn on the personal circumstances of the individual non-citizen... > > [T]he decision-maker can take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations, and adjust the relative weight to be given to each of the primary and other considerations accordingly.[136] (Horan J's emphasis)

13. Justice Horan referred to the decision of High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs,[137] which confirmed that a decision maker is not required to attribute to the hypothetical Australian community knowledge of the individual's personal circumstances as known to the delegate.'[138] In discussing paragraph 8.4(4) of Direction 90, which was expressed in identical terms to paragraph 8.5(4) of Direction No. 99 and Direction No. 110, the Court stated:

Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1) (3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1) (3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90.[139]

14. While the applicant has not, in strict legal terms, broken Australian law, the conduct in 2013 was very serious, involving inherently violent acts with grave consequences within a familial setting. I find that the Australian community expects that the Australian Government should not grant the applicant the visa. I give this consideration significant weight against the grant of the visa.

Other considerations - paragraph 9 of direction no 110

(1) In making a decision under section 501(1), 501(2) or 501CA (4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

1. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.
2. While this consideration in Direction No. 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a visa refusal or cancellation under s 501 or related provisions, including unlawful status, the likelihood of being detained and/or removed, and refusal or cancellation of other visas.
3. As already noted, a protection finding has been made in relation to the applicant with respect to Afghanistan. That protection finding stands regardless of the fact that the applicant's SHEV application has since been refused.[140] There is no evidence before me that a decision has been made in relation to the applicant under s 197D(2) to the effect that he is no longer a person in respect of whom any protection finding would be made.
4. As explained by paragraph 9.1.1(2) of Direction No. 110, s 197C(3) ensures that, except in the limited circumstances specified in s 197C(3)(c), s 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made. The applicant, therefore, cannot be removed to Afghanistan in breach of Australia's non-refoulement obligations.
5. Following the decision of the High Court in NZYQ, detention of an unlawful non-citizen is not validly authorised by ss 189 and 196 if there is 'no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future.'[141]
6. It was submitted in the ASFIC that, if the decision under review was set aside, the applicant would be granted an RSV and, if affirmed, he would continue to reside in the community on a BVR. It was submitted that refusal would bar the applicant, while in Australia, from applying for a protection visa under s 48A, with applications for any other type of visa also precluded under s 501E. while it was also contended that refusal would result in the automatic cancellation of the applicant's BVR by operation of s 501E of the Act, at the hearing Mr McCaw agreed with the Minister's position that this would not be the case.
7. It was submitted that, whether he's granted a permanent visa or remains on a BVR, he will continue to be a forensic patient subject to ongoing MHRT supervision. The decision on his visa, however, will critically affect the quality of support he receives and the MHRT's practical ability to facilitate his safe reintegration into the community. The applicant referred to the MHRT's decision of 24 April 2024 that a visa is 'essential' to open access to services, employment, accommodation and social supports, and that the applicant is in a 'Catch-22' situation which only a resolution of his visa status can cure. Without such resolution, 'the treating team cannot seek attainable orders and the Tribunal cannot make further orders and is stuck.' It was submitted that these comments apply equally if the applicant holds only a BVR, because permanency is an essential criterion for most community supports recommended by the treating team and supported by the MHRT.
8. The ASFIC argued that there is no material distinction between the applicant's present exclusion from supports while awaiting determination and the position he would be in if the visa was refused. It was contended that uncertainty itself impedes rehabilitation by frustrating the MHRT's capacity to advance reintegration, whereas the grant of a RSV, being permanent, would satisfy the residency requirements essential to unlocking supports. In contrast, speculation as to whether such supports might otherwise become available was said to be insufficient, particularly given the applicant's status as a forensic patient and his dependence upon those supports. It was submitted that the grant of a visa would materially reduce risk to the community, while refusal would perpetuate uncertainty, obstruct access to services, and thereby increase risk.
9. In the RSFIC, the Minister agreed that the applicant will continue to remain a forensic patient subject to supervision by the MHRT. The Minister also agreed that refusal would prevent the applicant from applying for a Protection visa in Australia by operation of s 48A and he would be unable to apply for any other kind of visa.
10. The Minister, however, disagreed with the applicant that, if the visa was granted, the applicant will get access to certain supports for the purpose of the applicant transitioning into the community. In any event, access to social services cannot justify granting a permanent visa. It was submitted that there is little cogent evidence that supports such as Centrelink disability payments, NDIS entitlements or public housing would materially affect any considerations in Direction No.110. He further contended that a permanent visa is a privilege conferred only where after applying Direction 110, the public interest warrants grant despite the character concerns. Access to services flows from permanent status, but it is a consequence of grant, not a justification for it. Even if the decision indirectly affects access to services, the Direction treats that consequence as neutral, except insofar as it is subsumed within an existing consideration.
11. I accept that as a result of the refusal of the protection visa under s 501, the applicant would be barred by s 48A from lodging and other protection visa application unless the Minister considers it in the public interest to lift that bar. In addition, s 501E operates so that any application for a visa other than a protection visa cannot be made while the applicant remains in the migration zone, except for a BVR of the kind prescribed by cl 2.12AA of the Migration Regulations 1994. The applicant may also be subject to permanent exclusions from Australia as he may not be able to meet Special Return Criteria 5001(c).
12. The applicant was granted a BVR on 25 June 2025 and is subject to a number of conditions, including ankle monitoring and a curfew. The Tribunal understands that failure to comply with any of these conditions may have serious consequences, including being charged with a criminal offence for breach of the visa conditions.
13. I accept the clinical evidence, noted above, that the conditions attached to the applicant's BVR, specifically the electronic ankle monitors and curfew, can generate social stigma, adversely affect his mental health and may be counterproductive to his long-term rehabilitation and risk management. I further accept that remaining subject to these conditions pending removal is likely to act as a continuing stressor that impedes rehabilitation and perpetuates anxiety and instability. I note that an application has been made on the applicant's behalf seeking a review of these conditions but no decision has yet been made. In addition, I accept the evidence that, were the applicant to hold a permanent visa, he may be granted access to services such as NDIS and social housing that could be critical to his rehabilitation.
14. I consider these to be matters of considerable importance and find that the applicant's continued stay in Australia on a BVR, with its associated conditions and uncertainty, weighs strongly against refusing the visa. In addition to those consequences, the potential for the applicant's removal to a third country is a distinct and significant matter requiring separate consideration.
15. A BVR holder under the Act is classified as a 'removal pathway non-citizen'.[142] Under s 199B, such a person for whom a protection finding has been made may be given a 'removal pathway direction' by the Minister to do specified things necessary to facilitate their removal,[143] and the non-citizen must comply or face a mandatory sentence of imprisonment.[144] Recent amendments to the Act provide that the rules of natural justice do not apply to an exercise of power under s 199C. However, a removal pathway non-citizen cannot be removed to a country in respect of which a protection finding has been made in relation to the non-citizen.[145]
16. The combined effect of these and other amendments to the Act, including the recently enacted Home Affairs Legislation Amendment (2025 Measures No. 1) Act, is that, in addition to the Minister being able to decide that a non-citizen is no longer a person in respect of whom any protection finding would be made, the Government can arrange for the non-citizen to be received by a third country. In other words, while the applicant cannot be removed to Afghanistan, he may still be detained and removed at some future time if granted a third country visa.
17. In August 2025, the Australian and Nauruan governments formalised a Memorandum of Understanding (MoU) regarding these arrangements, which included assurances and funding commitments. Under MoU, Nauru agreed to grant long term residence visas to certain non-citizens who are subject to removal from Australia. Pursuant to s 76AAA, a BVR ceases automatically when the holder is notified of the grant of a visa for another country that is party to third country reception arrangement, such as Nauru, allowing for their detention and subsequent removal.[146]
18. Neither party made substantive submissions regarding the likelihood of the applicant's removal to Nauru and its likely consequences. In opening submissions at the hearing, Mr Murray acknowledged the MoU and the related legislative developments but submitted that, in the applicant's case, removal remains no more than a theoretical possibility. He argued that if removal were to occur, it would protect the Australian community, but also accepted that the very existence of this possibility creates uncertainty for the applicant, particularly in relation to his need for stable and continuing medical and psychiatric treatment. The Ministers further submitted that the speculative nature of this possibility reduces the weight that should be given to it. In closing submissions, Mr Murray referred to the enactment of the Home Affairs Legislation Amendment (2025 Measures No. 1) Act, submitting that the amendments concern procedural fairness obligations only and have no bearing on the present case.
19. I respectfully disagree with the Minister's submission that removal remains only a theoretical prospect. In my view, the legislative and diplomatic developments outlined above, particularly the MoU concluded with Nauru and the enactment of the amendments, have brought the prospect of third-country removal for persons in similar position to the applicant closer and it can no longer be characterised as merely speculative. This conclusion carries two significant consequences for the present case. First, the applicant's continued residence on a BVR, knowing that the possibility of removal to Nauru is now more real, is itself likely to create an ongoing stressor that will exacerbate the anxiety and instability already identified by his treating clinicians and materially impede his rehabilitation. Secondly, if the applicant were in fact removed to Nauru, it is highly likely that he would be unable to access the level of psychiatric treatment, clinical oversight and structured support currently provided in Australia. Such a disruption would likely have serious adverse effect on his mental health and risk management. I find that the possibility of the applicant's removal to Nauru is itself a matter of substantial significance and that this consideration attracts significant weight against refusing the visa.
20. Taking these matters together, I find that the legal consequences of the decision attract very substantial weight in favour of granting the visa.

1. Paragraph 9.2 of Direction No. 110 provides that taking into account the matters identified in paragraphs 9.2(1)(a), (b) and (c) of Direction No. 110, the Tribunal must consider the extent of any impediments that the applicant may face if removed from Australia to their home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under paragraph 9.2(1)(a) to (c) of Direction No. 110 are:

(2) The applicant's age and health;

(3) Whether there are substantial language or cultural barriers; and

(4) Any social, medical and/or economic support available to the applicant in their country.

1. As already noted, a protection finding has been made in relation to the applicant with respect to Afghanistan and, therefore, he cannot be removed to Afghanistan unless he asks the Minister, in writing, to be removed to that country. At no point has the applicant indicated or expressed the wish to make such a request. Therefore, I give this consideration neutral weight in relation to Afghanistan.

1. There is no evidence before me that the refusal of the visa would impact Australian business interests in the manner contemplated by Direction No. 110. I give this consideration neutral weight.

1. Weighing the considerations arising under the Direction involves a complex and finely balanced evaluative exercise. As noted by the Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs:[147]

The balancing process is directed to determining whether there is "another reason" why the visa cancellation should be revoked. It requires an identification of the matters that may constitute "another reason" and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute "another reason" capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.[148]

2. I have found that the applicant does not pass the character test under s 501 of the Act. In considering whether the visa should be refused, I have had regard to the specific circumstances relating to the applicant. I have also had regard to the considerations referred to in Direction No. 110. The evaluative exercise of weighing up the factors in the Direction is not subject of some ritualistic formula.[149]
3. Direction No. 110 identifies the protection of the Australian community as the Government's highest priority. Paragraph 7(2) expressly states that primary consideration 1 (protection of the Australian community) is generally to be given greater weight than other primary considerations and primary considerations should generally be given greater weight than the other considerations. However, the direction does not prescribe a mechanical hierarchy. It requires that appropriate weight ultimately be given to both primary and other considerations.
4. In this matter I have found that the protection of the Australian community carries a mild to moderate weight against granting the visa. While the applicant's conduct in 2013 was very serious, it was an isolated and illness driven event, and that applicant's moral culpability was significantly diminished. His remorse is genuine and sustained, he has remained clinically stable for a number of years, and he now presents with a low risk of violence supported by multiple protective factors. Although the conduct satisfied the definition of family violence, the applicant's lack of capacity at the time to understand the moral quality of his actions, together with the absence of frequency or cumulative effect and the rehabilitation achieved, has led me to give primary consideration 2 only slight weight against granting the visa. I consider, however, that the expectations of the Australian community (primary consideration 5) weigh strongly against the grant of the visa as a matter of normative expectation.
5. Balanced against these considerations are the strength, nature and duration of the applicant's ties to Australia (primary consideration 3), which I consider to weigh slightly in favour of granting the visa. However, I have found that the other considerations, in particular the legal consequences of the decision, attract very substantial weight in favour of granting the visa. I have found that the applicant's continued stay in Australia on a BVR, with its associated conditions and uncertainty, weighs strongly against refusal. I have also found that the possibility of removal to a third country, notably Nauru, is itself a matter of substantial significance, given the likelihood of serious detriment to the applicant's mental health and the probable reduction in the level of appropriate treatment, care and supervision that would result. All other considerations attract neutral weight.
6. Having regard to all of the primary considerations and the relevant other considerations, I conclude that the factors weighing in favour of the applicant outweigh all other considerations, including primary considerations 1, 2 and 5, that individually or cumulatively, weigh against not granting the SHEV. I have, therefore, decided that the discretion to grant the visa should be exercised.

1. The Tribunal sets aside the decision under review and in substitution decides to not exercise the discretion under s 501(1) to refuse the grant of a SHEV.

[57] Exhibit R3 (HB2 - A-D), HB 378 - 409

[69] [2014] NSWCA 466 at [168].

[88] [2025] FCA 192.

[89] CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [49].

[94] [2018] FCAFC 68; (2018) 260 FCR 523.

[103] See for example Dr Kwek's report of September 2024 (The Forensic Hospital-10/04/2017 to 09/12/2019).

[113] Confidential Psych reports 2020 onwards.

[119] [2008] NSWCCA 128.

[120] [2020] AATA 4238 (23 October 2020).

[121] [2021] AATA 4309 (19 November 2021).

[122] [2021] AATA 3090 (27 August 2021).

[125] [2019] FCAFC 185.

[126] [2024] FCA 1483.

[127] [2025] FCA 876.

[128] [2023] HCA 37.

[130] QLTM and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1214 (20 May 2025).

[131] See FYBR v MHA [2019] FCAFC 185 at [75], [96].

[132] See ibid at [69]-[72], [75], [95]-[96], [100]-[101].

[133] QLTM and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1214 (20 May 2025).

[134] [2024] FCA 876.

[135] RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 at [52].

[137] [2024] HCA 2.

[139] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [52].

[140] See s 197C(3)(b) Migration Act 1958 (Cth).

[141] NZYQ v MICMA [2023] HCA 37 at [54].

[142] See s 5(1) Migration Act 1958 (Cth).

[143] See s 199C Migration Act 1958 (Cth).

[144] See ss 199B, 199C and 199E Migration Act 1958 (Cth).

[145] See 199B(3) Migration Act 1958 (Cth).

[146] See Parliamentary Library, Bills Digest No. 13, 2025-26.

[147] [2023] FCAFC 138.

[149] Howells v MIMIA [2004] FCAFC 327; (2004) 139 FCR 580 at 127.