1. Under s 501(2) of the Act, the Minister may cancel a non-citizen's visa if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person satisfies the character test.
2. The character test is set out at s 501(6) of the Act and includes at s 501(6)(a) that a person does not pass the character test if they have a substantial criminal record as defined in s 501(7) of the Act.
3. A person has a substantial criminal record in circumstances which include at s 501(7)(e) and (f) that:

(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; or

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

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

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

1. If the person does not satisfy the Minister that they meet the character test, a decision maker must then decide if the visa should be cancelled.
2. Under s 499 of the Act, the Minister may give written directions to a person or body having functions or power under the Act about the performance of those functions or the exercise of those powers and a person or body must comply with these directions.
3. The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA ('the Direction'). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction in making a decision under s 501 of the Act.
4. The issues before the Tribunal are:
   • Is there reason to suspect that the Applicant does not meet the character test;
   • Has the Applicant satisfied the Tribunal that she meets the character test; and
   • If not, should her visa be cancelled, taking into account the matters specified in the Direction.

Is there a reason to suspect the Applicant does not pass the character test?

1. Both the notice of intention to consider cancellation and the decision of the delegate state that the delegate suspected that the Applicant did not pass the character test 'with reference to subsection 501(7)(f) of the Act.' It is common ground that the Applicant was found fit to plead and s 501(7)(f) does not apply.
2. The Respondent raised this in opening and submitted that the correct ground on which the Applicant did not meet the character test was in s 501(7)(e) of the Act. It was further submitted that the Tribunal could consider a different basis on which the Applicant did not meet the character test, relying on Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652 ('Smith').
3. The Applicant initially did not dispute that she does not meet the character test, however later contended that because the delegate used an incorrect basis to find that she did not meet the character test, the cancellation of her visa does not arise. It was contended that as Smith was set aside by the Full Federal Court in Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 78, albeit on a different issue, this left the principles in Minister for Immigration, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 ('CPJ16') in place. It is argued CPJ16 confines the Tribunal to considering the same basis on which the delegate found the Applicant had a substantial criminal record and an incorrect provision was cited, the cancellation of her visa does not arise. Despite this argument, it was also pressed that the Tribunal should continue to consider the discretion to cancel the Applicant's visa.
4. Under s 54 of the Administrative Review Tribunal Act 2024 (Cth), for the purposes of reviewing a reviewable decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by an Act. Section 500(1)(b) of the Act provides that an application can be made for review of decisions of the Minister under s 501 of the Act.
5. In considering the nearly identical terms of s 43(1) the Administrative Appeals Tribunal Act 1975 (Cth) the High Court stated that the Tribunal must 'address the same question as the original decision-maker was required to address.'[1] The Tribunal is required to 'stand in the shoes of the original decision maker but having regard to the state of affairs as it stood at the time of the Tribunal's decision,' and is 'required to ensure that the appellant was given a reasonable opportunity to present his case.'[2]
6. The questions posed by s 501(2) of the Act are whether at the time of its decision, the Tribunal reasonably suspects that the Applicant does not meet the character test and if there is a reasonable suspicion she does not meet the character test, whether the Applicant satisfies the Tribunal that she meets the character test. If she does not meet the character test the Tribunal must proceed to consider whether her visa should be cancelled.
7. This is different to the test to s 501(1) and 501CA(4) of the Act.
8. CPJ16 considered the operation of s 501(1) of the Act, which provides for a visa application to be refused if the person does not satisfy the Minister that the person passes the character test. Rares J found the Tribunal could not consider a different basis on which the application did not meet the character test to that relied on by the delegate.
9. The Full Federal Court declined to hear an appeal and cross-appeal against this decision[3] as appeals were moot following a decision being made on CPJ16's protection visa resulting in the Tribunal decision no longer being operative. In coming to this decision, the Full Court states that while it did not consider the decision of the primary judge to be self-evidently correct, on balance it was not appropriate to determine correctness on appeal.[4]
10. The test to be applied under s 501(1) is a single step requiring a visa applicant to satisfy a decision maker that they pass the character test before considering the discretion to refuse the visa. This is different to the two-step process in s 501(2) which requires a decision maker to first form a reasonable suspicion that the person does not meet the character test, and after that has been formed allows the person to satisfy the decision maker that they meet the character test, and CPJ16 is of limited assistance.
11. The test in 501CA(4) relates to the revocation of the cancellation of a visa under s 501(3A) of the Act, with mandatory cancellation under s 501(3A) of the Act not capable of review by the Tribunal.[5] As the mandatory cancellation is not reviewable, the decision under review is then whether the Applicant meets the character test at the time of the decision.
12. In Smith, in considering whether a different basis for not meeting the character test for s 501CA(4) of the Act, Shariff J found CPJ16 should not be followed, even by analogy, as the conclusions were formed by the specific decision-making process in that case.[6] While Smith was overturned on appeal, this was on a different basis, and there was no consideration on appeal about whether a decision maker is limited to that part of the character test considered by the delegate.
13. As the test in s 501(2) is different from the test in s 501(1) and 501CA(4) both CPJ16 and Smith provide limited assistance.
14. The test in s 501(2)(a) of the Act requires that the Minister, and on review the Tribunal in the place of the Minister, to reasonably suspect that the person does not pass the character test. It does not require the person to fail to meet the character test for a reason specified in s 501(6) of the Act or that a specified limb of s 501(7) of the Act applies.
15. Section 501(2) of the Act is not a provision that requires procedural steps to be taken prior to exercising the power to cancel a visa unlike, for example, s 109 of the Act which requires consideration of non-compliance in the way specified in a notice issued under s 107 of the Act. Considered in context there is no indication the test in s 501(2) is to be applied at the time the delegate made the decision to cancel the Applicant's visa rather than at the time of this review.
16. Principles of procedural fairness dictate that if the basis on which the Tribunal reasonably suspects the Applicant did not meet the character is different to the basis on which the delegate formed this view, the Applicant is provided with the opportunity to respond to this and provide an opportunity to respond.
17. The Applicant, who is represented by counsel, was provided notice in the Minister's statement of facts, issues and contentions that it was contended that she did not meet the character test because she had a substantial criminal record as specified in s 501(7)(e) of the Act. This was again raised in opening submissions. The Applicant's statement of facts issues and contention agrees that she has a substantial criminal record as defined in s 501(7)(e) of the Act, and no submissions to the contrary were provided at the hearing. The Applicant was placed on notice of an alternate basis on which she did not meet the character test and was provided the opportunity to show she met that aspect of the character test.
18. The decision entered by the Supreme Court of New South Wales included the following orders:

(1) Enter special verdicts with respect to Counts 1 and 2, pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), namely that the acts are proven but the accused is not criminally responsible.

(2) Pursuant to section 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) [the Applicant] is to be detained at the Forensic Hospital, or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.

(3) ...

On 12 August 2024, the accused was arraigned in this Court on an indictment for two offences against her infant child:

(1) that on 19 March 2023, at Westleigh, in New South Wales, she attempted to drown him with intent to murder him; and

(2) that on 23 March 2023, at Westmead, in New South Wales, she murdered him.

1. The charges of attempted murder and murder were found proven, but the Applicant was held not criminally responsible. This verdict is sufficient for the Tribunal to reasonably suspect the Applicant does not pass the character test.

Has the Applicant satisfied the Tribunal that she meets the character test?

1. The next step is whether the person satisfies the Minister that she does pass the character test. The Applicant does not submit, nor did she submit in her response to the notice of intention to cancel her visa, that she meets the character test, and conceded that she has a substantial criminal record as defined in s 501(7)(e) of the Act.
2. The Applicant does not meet the character test set out in s 501(6)(a) of the Act because she has a substantial criminal record as defined in s 501(7)(e) of the Act.

1. The final step is considering if the Applicant's visa should be cancelled. In deciding if the Applicant's visa should be cancelled, the Tribunal is required by s 499 of the Act to apply the Direction.

1. Paragraph 5.2 of the Direction provides principles which provide a framework to approach the task of decision making. These are:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

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

(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.[7]

1. The Direction also sets out matters to be considered in making a decision. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:

(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 ... (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.[8]

1. The Direction contains five primary considerations, which are:

(1) The protection of the Australian community from criminal or other serious conduct; > > (2) Whether the conduct engaged in constituted family violence; > > (3) The strength, nature and duration of ties to Australia; > > (4) The best interests of minor children in Australia; > > (5) The expectations of the Australian community.[9]

2. The Direction contains three other considerations, which are the legal consequences of the decision, the extent of impediments if removed, and the impact on Australian business interests.
3. The primary and other considerations have been considered in turn.

1. The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision makers should have regard to the principle that entering or remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding, respect important institutions and will not cause or threaten harm to individuals or the Australian community.[10]
2. Decision-makers should also consider the nature and seriousness of the conduct to date and the risk to the community if the Applicant commits further offences or engages in other serious conduct.[11]

1. The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[12]
2. The Applicant's conduct of attempted murder and murder have been found proven. As conduct involving violence against a child, this is viewed very seriously by the Australian Government and the Australian community. The sentence imposed for this conduct is not a consideration given the gravity of the conduct. It is, however, important to keep in mind that the Applicant has not been convicted of a crime, or found guilty of an offence. She has been found not to be criminally responsible for her actions and while her conduct is very serious, considerations that relate to 'offending' and 'convictions' do not apply.
3. The impact of this offending on A's other family members including his father and grandparents, while undoubtably grave, is not the subject of evidence before the Tribunal and does not fall to be considered under paragraph 8.1.1(1)(d).
4. The Applicant's conduct is infrequent, with the events resulting in the charge of attempted murder occurring four days before the events giving rise to the charge of murder. She does not have a record of criminal offending, or of conduct giving rise to acts of a criminal nature. The progress from conduct resulting in a charge of attempted murder to murder does show increasing severity but given the proximity of these events to each other, this is given limited weight.
5. The remaining considerations in paragraph 8.1.1(1) do not apply.
6. The nature and seriousness of the conduct weigh in favour of cancelling the Applicant's visa.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

1. In considering the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, the Direction sets out that:

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.[13]

1. The Applicant's conduct is very serious and resulted in the death of her child. It follows that regard must be given to the Australian Government's view that the Australian community's tolerance for any risk of this being repeated is low. Weight should be attributed to the gravity of the conduct leading to the death of a child as being so serious that any risk of it being repeated is unacceptable.
2. Paragraph 8.1.2 of the Direction states, in part:[14]

(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:

1. information and evidence on the risk of the non­citizen re-offending; and
2. 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). ...

1. This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[15] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[16]

1. To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[17]
2. The nature of the harm involved if the Applicant should engage in similar conduct involves the death of a child. This is a grave harm and must be weighed accordingly.

Likelihood of the Applicant engaging in further criminal or other serious conduct

1. This likelihood is to be assessed taking into account information and evidence of the risk of reoffending and evidence of rehabilitation achieved by the time of the decision.[18]

Information and evidence on the risk of the Applicant engaging in further criminal or serious conduct

1. Before the Court entered a verdict, the Applicant was assessed by three forensic psychiatrists; Dr Furst, Professor Greenberg and Dr Korbel. Dr Korbel's report was a disposition report requested by the Court.
2. Dr Furst and Professor Greenberg concur in stating the Applicant was fit to plead and stand trial and that a defence of mental impairment was available to her.
3. Dr Furst's opinion was that the Applicant's facilities and perceptions of reality were deranged at the time of the attempted murder and murder and that at the time she thought she was doing the right thing, and did not know her acts were wrong.
4. Dr Furst considered the Applicant has schizoaffective disorder and was suffering psychotic symptoms at the time of A's death. Dr Furst advises that:

Fortunately, most others who kill their children in the context of a psychotic illness and/or severe disturbance of mood do well in the forensic system and rarely reoffend. The primary risk, over the longer term, is towards themselves via suicide, rather than to others. The main focus of long-term psychiatric care is ensuring medication compliance and provision of appropriate psychiatric help/treatment if future episodes of severe depression, mania, and/or psychosis emerge, including early admission to a mental health unit and appropriate adjustment of medication.[19]

1. Professor Greenberg considered that at the time of the attempted murder and murder the Applicant was suffering from a psychotic illness which impaired her capacity to judge whether her actions were wrong and to control herself. Professor Greenberg considers she was not able to reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.[20]
2. Professor Greenberg considered the Applicant's prognosis to be dependent on numerous factors including the degree of compliance with medication and treatment interventions, her response to treatment, her available psychological and social supports in the community, psychosocial factors such as suitable accommodation, lifelong cessation of illicit substances and alcohol and her level of insight into her mental illness and need for psychiatric treatment.[21] Professor Greenberg provided an updated report in August 2024 recording her treatment on monthly intramuscular antipsychotic medication and remaining relatively stable on this medication with no relapse of psychotic symptoms. At this time, Professor Greenberg considered the Applicant was a low to moderate risk of reoffending, and reports she remains highly compliant with her treatment team. Professor Greenberg said her overall risk would be elevated if she experienced a deterioration in her mental state and in the context of a pregnancy or other stressful life situation.[22]
3. Professor Greenberg considers the Applicant would need ongoing mental health treatment and psychiatric monitoring, psychoeducation into her mental illness, compliance with medication, psychological intervention about her coping skills and managing anxiety, indefinite cessation of illicit substances and alcohol use, drug and alcohol treatment and random urine drug screens.
4. Professor Greenberg states his views about risk are provisional as he did not undertake a recent psychiatric assessment, however considered the Applicant was a low-moderate risk category of future violence in the short term.
5. A third opinion from Dr Korbel was obtained at the request of the Court under s 33(2) of the Mental Health and Cognitive Impairment Provisions Act 2020 (NSW). Dr Korbel was requested to provide a risk assessment and recommendations for the Applicant's safe treatment and care.
6. Dr Korbel's opinion in late September 2024 was that the Applicant is a low-moderate risk of future reactive aggression. Dr Korbel states the Applicant is compliant with treatment and engages well with her mental health team which has been effective in treating her psychosis and mood instability. Dr Korbel states:

She will likely experience ongoing concerns in relation to psychosocial functioning on the background of trauma and grief, dysfunctional relationships and limited coping skills. Her overall risk will be elevated should she experience a deterioration in her mental state and in the context of another pregnancy.[23]

1. Following the verdict of the Court and her detention in forensic mental health services, further assessments have been conducted for the Mental Health Review Tribunal.
2. In a report of March 2025, forensic psychiatrist Dr Ellis stated that the Applicant has responded well to psychiatric treatment and rehabilitation with no current symptoms of acute mental illness. Dr Ellis notes no evidence of any underlying antisocial or violent beliefs with her history of violent behaviour being restricted to the index offending in the context of untreated psychosis. Dr Ellis states:

[the Applicant] falls into a group of people who are at low risk of engaging in future violence to others. It is expected that any violence perpetrated would be in the context of supervision of children. This risk has the potential to increase significantly in the post-natal period if [the Applicant] has another child. She has a moderate loading of historical factors and a low- moderate rating of clinical and future factors associated with violence.

In the context of her current mental and emotional state, abstinence from illicit substances, and level of treatment and psychosocial support [the Applicant] is at low risk of imminent violence to others.[24]

1. Dr Ellis recommends transfer to a low secure unit to engage in rehabilitation, robust discharge planning and progress towards transition to the community through the recovery pathway.
2. On 7 March 2025, the Mental Health Review Tribunal cited with approval Dr Ellis' report that:

[The Applicant] has consistently demonstrated a positive attitude and a strong commitment to her recovery. She has adapted well to the structured environment, engaging cooperatively with the treating team and her peers. Throughout her stay, she has maintained a stable mental state, with no evidence of psychosis, delusions, hallucinations, or mood instability. Her affect has remained euthymic and appropriate, and their interactions have been consistently polite, constructive, and reflective of her willingness to participate actively in her care and recovery journey. She continues to adhere to her treatment and management plan effectively. She has reported no side effects from antipsychotic medication and has expressed confidence in the effectiveness of her medication regime. Her insight into her diagnosis of schizoaffective disorder is evident, as she appreciates the importance of compliance with treatment to sustain her stability and reduce the risk of relapse.[25]

[the Applicant] has shown respect for unit routines and boundaries, consistently adhering to guidelines without any reported incidents. She has maintained positive and supportive relationships with both staff and her peers. contributing to a collaborative and the harmonious environment. She has enrolled in a further education course. She is engaged with the ward psychologist for supportive psychotherapy. Currently [the Applicant] has supervised day leave with friends and partner. This has been used without incident.[26]

1. The Mental Health Review Tribunal found the Applicant was a low risk of engaging in future violence to others and made orders for her transfer to the low secure unit, escorted and supervised day leave, and unsupervised day leave on hospital grounds.
2. The Applicant's current treating forensic psychiatrist Dr McGregor, provided a report and gave oral evidence.
3. In her report, Dr McGregor states the Applicant is a low risk for future violence, with the only concerning scenario being a future pregnancy. Dr McGregor reports that at the last Mental Health Review Tribunal the Applicant was granted unsupervised outside day leave, which she had been using for up to three hours mainly to attend the gym. At hearing Dr McGregor said this has increased to four hours without incident. Dr McGregor concludes that in her opinion the Applicant does not pose significant risk to any member of the community. In cross-examination, Dr McGregor said she would be more concerned about the Applicant being a risk to herself than to others.
4. The Applicant provided clear and detailed evidence about her warning signs for relapse without hesitation or the need for reflection. The warning signs she identified were specific to her circumstances and consistent with the symptoms observed in the pre-sentence psychiatry reports. This reflects her engagement with her treating team and the work she undertaken in her rehabilitation. The Applicant's awareness of her illness and the warning signs of relapse result in a greater degree of confidence that any signs of relapse will be identified early before her conditions deteriorates to the extent that her conduct may pose a risk to others.
5. Overall, the risk assessments show that the Applicant's level of risk is low and decreasing with her compliance to medication and engagement with her treating team.

1. Early reports, particularly that of Professor Greenberg refer to the Applicant's use of illicit substances and alcohol.
2. The Applicant was asked about her drug use and acknowledged that prior to the charges she used illicit substances as a coping mechanism. She said she is now clearer than she has been for years and no longer needs to take drugs.
3. Dr McGregor said that it is a condition of leave that the Applicant has urine drugs tests on returning from leave, including after each of the current periods of unsupervised leave in the community. All her results have been negative, and Dr McGregor considers she has not used substances since her incarceration.
4. Even if released to the community the Applicant will remain supervised until she achieves an unconditional release, as outlined below. The prospect of her using illicit substances or alcohol in the medium to long term are very low given the level of supervision and her consistent negative drug urine tests following periods of leave in the community.

1. The other risk factor raised is potential pregnancy. This remains a real possibility which neither the Applicant nor her current partner rule out.
2. Dr McGregor said that post-partum is high risk for psychosis, however considered that the Applicant was now aware of the early warning signs for her illness. Dr McGregor said post-partum infanticide has a low risk of recurrence, which is supported by international studies on the subject.
3. The Applicant gave clear and comprehensive evidence about the risk factors she has and how she would manage these risk factors. She is clearly aware of the risks posed by pregnancy and childbirth. She said she would need to be stable and in a stable relationship to consider a pregnancy and it would need to be safe for her to become pregnant. She said she would rely on the advice of her psychiatrist and therapists about whether pregnancy was safe.
4. The Applicant said she would access specialist mother and baby units and that she would have a lot of people around her to make sure she and the baby were safe should she have another child. This is consistent with the ongoing supervision she will have by the Mental Health Tribunal until her unconditional release.
5. Future pregnancy does pose a risk, however this is well known and understood by the Applicant and treating team and will feature in her ongoing supervision.

1. The psychiatry reports record that the Applicant has responded well to antipsychotic medication and is considered stabilised on her current medication, which is a depot injection delivered once a month.
2. In response to the question of whether she wants to be in a position to not take the medication, she said she 'would not say she would never take medication.' This question puts a proposition about what the Applicant would like rather than what she will do and is of limited application in the medium to longer term during which she will be subject to a forensic order and does not get to choose whether she has medication.
3. Dr McGregor reports the Applicant has engaged well with weekly psychology sessions and has had reliable attendance. Dr McGregor reports that she complies with treatment and notes that she will be compelled to comply while on a forensic order so does not anticipate any problems with compliance.

1. The Applicant's ongoing management will be determined by the Mental Health Tribunal. Her treating forensic psychiatrist, Dr McGregor, states that release to the community is slow and progressive. Dr McGregor said that the Applicant has progressed relatively quickly and is now permitted four hours of unsupervised leave out of the hospital grounds per day.
2. Dr McGregor set out the steps that would be required for the Applicant's release to the community, and said these steps are monitored carefully. Progress is determined by the person's mental state, compliance with the terms of the leave including urine drug screens and compliance with general ward rules. In looking at supporting leave, the observations of nursing staff on personal interactions and the ability to undertake daily tasks are considered.
3. Progress for the Applicant lies in incrementally increasing periods of leave, working towards day leave to attend TAFE or develop skills for living in the community. Patients are assisted to find accommodation and may request approval for overnight leave. If the progressive leave is successful, the next step is conditional release ordered by the Mental Health Tribunal. This requires an opinion that the person is not a risk to the community from the treating psychiatrist and an independent forensic psychiatrist. Other aspects required in recommending conditional release include stable accommodation and access to community mental health services. Each step in the process must be successful for eventual unconditional release, and people who obtain an unconditional release are often then on a community treatment order for ongoing treatment for their mental illness. Some patients do not progress to any periods of unsupervised leave or to conditional or unconditional release.
4. Ongoing supervision with each stage of progression requiring a decision by the Mental Health Tribunal provides a substantial protective factor against the risk of relapse of the Applicant's mental illness and early detection of any drug or alcohol use.
5. Other protective factors in the Applicant's life are supportive friends who have continued their support after the verdict of the Court. There is no indication her friends are other than pro-social, with several being assessed as suitable to supervise her leave in the community.

Conclusion on the protection of the Australian community

1. The opinion of at least four forensic psychiatrists is that the Applicant's conduct resulted from a mental illness. Psychiatrists who have provided treatment since the verdict of the Court have concurred in their assessment that her illness has responded to treatment, and this is supported by Mental Health Tribunal orders allowing her increasing and unsupervised leave. The Applicant has had ongoing weekly psychology sessions, and readily identifies warning signs and risk factors for a relapse of her condition.
2. The Applicant will continue to be the subject of supervision and review by psychiatrists and the Mental Health Tribunal for the reasonably foreseeable future. Conditional release requires the support of two forensic psychiatrists, one of whom is not her treating psychiatrist. Any drug use will be detected early given the ongoing drug urine tests conducted as part of her supervision. There is an increased risk should the Applicant become pregnant, however this will be managed under the terms of her supervision. She has a number of supportive friends.
3. Overall, there is little risk of the Applicant presenting a risk to the Australian community. Nevertheless, the gravity of her conduct and any risk of it being repeated results in this consideration weighing in favour of cancelling her visa.

1. Paragraph 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether the Applicant's visa should remain cancelled.
2. The definition of family violence in paragraph 4(1) of the Direction is violent or threatening behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful.
3. This is relevant where the Applicant has been convicted of an offence, found guilty of an offence or had charges proven that involve family violence or there is evidence from independent and authoritative sources that she is, or has been, involved in the perpetration of family violence, and procedural fairness has been accorded (paragraph 8.2(2) of the Directions.
4. The Applicant's conduct was of a violent nature against family member. The definition of family violence in the Direction requires the violence to have a particular effect, in that it coerces or controls the family member or causes the family member to be fearful. There is no information to show that A was coerced or controlled.
5. It may be inferred the events leading to the charge of attempted murder and the events leading to the charge of murder caused A to be fearful. There is no information before me about the Applicant's conduct towards A other than in the three days leading to his death and I could not conclude this was frequent. The initial event was serious and led to A's hospitalisation and the latter event caused his death.
6. The Applicant was found not criminally responsible for her actions and is now treated for her illness. This factor weighs somewhat in favour of cancelling her visa.

THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

1. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant's ties to Australia. Paragraph 8.3 of the Direction requires a consideration of the person's immediate family members who are Australian citizens, permanent residents or who have a right to remain indefinitely in Australia.
2. Paragraph 8.3 of the Direction 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:

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

2. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

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

1. The Applicant separated from her previous partner and has now been in a relationship with Mr A for approximately six months. They regard this as a committed relationship. Mr A said that if the Applicant is removed from Australia, he will travel with her. He considers the separation from his ties to Australian and establishing himself with the Applicant in the United Kingdom will be difficult, and there is a significant impact on her current partner if her visa is cancelled.
2. The remainder of the Applicant's immediate family is in the United Kingdom.

1. The Applicant has been in Australia for eight years, and prior to the deterioration in her mental state had contributed positively to the Australian community through her employment, including as a disability care worker for a person who provided a statement in support of the Applicant prior to her visa being cancelled.
2. She has a large circle of friends who have remained supportive following A's death and provide statements from ten friends. Their continued support including providing supervision for periods of leave from the hospital shows strong ties to this group of people.

Bests interest of minor children in Australia affected by the decision

1. Paragraph 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision.
2. It was not submitted there are minor children in Australia who are affected by this decision, and the consideration does not apply.

1. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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) 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 the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns that include serious crimes against vulnerable members of the community.[27]
3. In this case there is no doubt the Applicant has engaged in serious conduct against a vulnerable child, who was ten months old at the time he died. However, she was found not to be criminally responsible and absent the mental element, her conduct was not a crime.[28]
4. Regardless of the criminality of the Applicant's conduct, I must have regard to her conduct as serious. This results in the expectation of the community, as expressed in the Direction, is that she would not remain in Australia. Given this expectation, this consideration provides some weight in favour of cancelling her visa.

(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):

Legal consequences of decision under s 501 or 501CA

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.[29]
2. In general, if a person is an unlawful non-citizen, the person must be detained under s 189 of the Act and removed from Australia in accordance with s 198 of the Act.
3. If her visa is cancelled, the Applicant will be prevented by s 501E of the Act from applying for visas other than a protection visa or a Bridging Visa R (Removal Pending) while in the migration zone. She will also be subject to special return criteria that provides for permanent exclusion from some types of visas should she apply for those visas.[30]
4. The permanent exclusion provisions do not apply to a Subclass 309 offshore partner visa, and the Applicant is currently partnered with an Australia citizen. Public Interest criterion 4001 does apply to offshore partner visa applications and provides for the character test in relation to this visa. The Minister may decide not to refuse to grant the visa despite the person not meeting the character test.[31] This means the Applicant could apply for a partner visa offshore, however the outcome is speculative at this stage.
5. The Applicant does not claim, nor is there information to indicate, that Australia has non-refoulement obligations in respect of her.
6. There is, however, a curious question about the legal consequences of a decision to cancel her visa. It became apparent during the hearing that the Applicant does not currently hold a visa. If her visa is cancelled, she is detained under state law, however a Commonwealth law will require her detention and removal from Australia. Neither party provided submissions on the practical legal consequences for the Applicant if her visa is cancelled, although the Minister submitted that generally a person in the Applicant's situation is granted a criminal justice stay visa.
7. The Tribunal must give genuine consideration to the human consequences of the decision.[32] The human consequences for the Applicant of detention and removal of the Applicant from Australia are quite different from the consequences of a visa cancellation where the Applicant will continue to be in Australia until unconditionally released by the Mental Health Tribunal.
8. At present, she does not hold a visa and the Commonwealth legislation prevails to the extent of any inconsistency.[33] This is a far larger question than consideration of a time limited review permits, even with the benefit of argument on the issue. While not having the benefit of argument, there is no intention on the face of the provisions in ss 189 and 198 of the Act that the requirement to detain and remove an unlawful non-citizen is subject to State laws to the contrary, as the State law otherwise precludes the operation of the Commonwealth law.[34]
9. Given the stated need for the Applicant to continue to receive specialist forensic mental health supervision and treatment, the legal consequences of detention and removal from Australia is a very significant detriment and weighs heavily in favour of not cancelling visa.

1. The Tribunal must consider the extent to which the Applicant would face an impediment or impediments if removed from Australia to their home country, in establishing themselves and maintaining basic living standards taking into account the Applicant's:
   • Age and health;
   • Whether there are substantial language or cultural barriers; and
   • Any social, medical and/or economic support available to them in that country.
2. The Applicant is 33 years of age and came to Australia as an adult. She will not face language or cultural barriers. She will be able to access the same social, medical and economic supports that are available to citizens of the United Kingdom.
3. There is no information before the Tribunal about whether forensic mental health services are available to her in the United Kingdom, the process that would be undertaken for any removal from Australia, or her circumstances on return given the verdict of the Court.
4. The deterioration of the Applicant's mental state arose in the context of returning to the United Kingdom, which was to occur a matter of days after the death of A. The Applicant said her imminent return to the United Kingdom was a key trigger in her psychosis and in the deterioration of her mental health as it revisited some of the trauma suffered from the sexual abuse she experienced in the United Kingdom.
5. The Applicant's sister states that return would place her back in an environment where she suffers trauma and would undo the progress she has made. Her previous partner also stated removing her from Australia will cause her harm and undo the progress she has made.
6. The Applicant states that if she is removed from Australia to the United Kingdom she will want to live close to her sisters, however this also involves being in the proximity to where she suffered sexual abuse and witnessed family violence.
7. The Applicant's mental illness and the risk to her health involved in moving to another country where the extent of specialist forensic mental health services available to her is unknown is a significant impediment and weighs heavily in favour of not cancelling her visa.

1. Paragraph 9.3 provides that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
2. There is no information to show that the removal of the Applicant from Australia has an impact on Australian business interests, and this factor does not weigh for or against cancelling her visa.

1. The Applicant's conduct has led to the death of a child who was ten months old. The gravity of this conduct means any risk of this being repeated will not be tolerated by the Australian community, and the Government has expressed the expectation of the Australian community is that the visa of a person where such serious conduct is present is cancelled.
2. However, the Applicant was found not to be criminally responsible for her actions due to a mental illness. She has responded well to treatment and her progress has been impressive. She has no history of violent conduct prior to her illness and the prospect of this conduct recurring is low given the current success of her treatment and the level of supervision she will experience for many years to come. There is a low risk of harm to the Australian community. She has a partner and supportive friends in Australia. The extent of impediments in returning to the United Kingdom are high, and significant in the context of her experience of sexual abuse in the location where she would live.
3. In these circumstances, while the Applicant does not meet the character test, her visa should not be cancelled. As a result, the decision under review is set aside and substituted with a decision not to cancel her visa.

1. The decision under review is set aside and substituted with a decision not to exercise the power to cancel the Applicant's visa under s 501(2) of the Migration Act 1958 (Cth).

[1] Shi v Migration Agents Registration Authority [2008] HCA 31 ('Shi').

[2] Nathanson v Minister for Home Affairs [2022] HCA 26 at [7] citing Frugtniet v Australian Securities and Investment Commission [2019] HCA 16 and Shi.

[3] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2020] FCAFC 87.

[5] Section 500(4A)(c) of the Migration Act 1958 (Cth) ('the Act').

[6] Smith at [34]. See also [35] - 3[39].

[7] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) paragraph 5.2 ('the Direction').

[14] See also the Direction, paragraph 8.1(2)(b).

[15] The Direction, paragraph 8.1.2(2)(a).

[17] The Direction, paragraph 8.1.2(2)(a).

[28] Crimes Act 1900 (NSW) s 18 and 22.

[30] See Special Return Criterion 5001(c), Schedule 5, Migration Regulations 1994.

[31] Clause 309.225 of Schedule 2 to the Migration Regulations 1994, Schedule 4 item 4001 to the Migration regulations 1994.

[32] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 per Allsop CJ at [3].

[33] The Commonwealth of Australia Constitution Act.

[34] P v P [1994] HCA 20 at [18], [21].