CGNN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 1252

CGNN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1252 (7 May 2020)

Division:GENERAL DIVISION

File Number(s):  2020/0849

Re:CGNN

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:7 May 2020

Date of written reasons:        8 May 2020

Place:Sydney

The Tribunal decides that the decision under review is set aside and that in substitution, the cancellation of the Applicant’s visa is revoked.

.................................[sgd].......................................

Deputy President B W Rayment OAM QC

CATCHWORDS

MIGRATION - cancellation of visa on character grounds under s 501(3A) – where applicant was involved in robbery in company – where applicant was violent when committing the offence – whether to exercise discretion under Direction No. 79 – protection and expectations of the Australian community – where applicant was affected by alcohol and gambling addiction – where applicant breached bail – where applicant has rehabilitated – where applicant was allowed on work release – expectations of the Australian community – non-refoulement obligations – where applicant owed protection obligations – where not revoking cancellation would result in prolonged or indefinite detention – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) s 195A, 197C

CASES

Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562

DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576
FYBR v Minister for Home Affairs [2019] FCAFC 185

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 307 ALR 49; (2014) 138 ALD 495

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

8 May 2020

1. The applicant, who was given a pseudonym of CGNN, was born in Tehran in January 1993, so that today he is 27 years old.

2. When he was 20 years old, he committed four offences of robbery in company, for which he was subsequently convicted in the District Court of New South Wales. The offences were all committed over a period of 16 days in December 2013 and January 2014.

3. The convictions led to the mandatory cancellation of his visa, and a delegate decided note to revoke the cancellation. The applicant applied to the Tribunal for review of that decision.

4. It is necessary to discuss the detail of the offences of which he was convicted because of the provisions of Direction No. 79 (‘the Direction’), published by the Minister’s predecessor, under s 499 of the Migration Act 1958 (Cth) (‘the Act’). That Direction has, speaking generally, a binding effect on decision-makers, including the Administrative Appeals Tribunal, in relation to questions including whether a visa granted to a person which has been the subject of mandatory cancellation under the Act, ought to be made the subject of an order revoking amounts to a cancellation, so that the visa continues in the course.

   DIRECTION NO. 79

5. The Direction is a key part of the decision-making in this Tribunal, just as it was for the delegate. The Direction has been published and I do not repeat its terms, except that I summarise certain parts of it and refer to its relevant provisions.

6. The Direction, in its early provisions, sets out objectives which affect the Direction itself in cl 6.1 and I will not set them out in these reasons.

7. Clause 6.1(3) sets out the background matters which affect these proceedings and deals with the question of mandatory cancellation. Clause 6.2 gives general guidance to decision-makers 6.3 sets out the principles stated by the Minister which are to guide decision-makers.

   PRIMARY CONSIDERATIONS

8. Prominent among the considerations which affect this matter is the first of the primary considerations, the protection of the Australian community, set out in cl13.1 of the Direction. Clause 13.1 sets out applicable principles which, in many ways, repeat those mentioned in cls 6.2 and 6.3 of the Direction.

9. In cl 13.1.1, the Direction describes the nature and seriousness of the conduct which must be considered by the decision-maker. Within cl 13.1.1 there are a number of particular matters mentioned, including, relevantly for the present case, sub-cls (a), (c), (d), (e) and (f).

10. In cl 13.1.2, the Direction makes it clear that a decision-maker must have regard cumulatively to the nature of the harm to individuals, or the Australian community, should the non-citizen engage in further criminal or other serious conduct and to the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.

11. The evidence shows from about the age of eight years, the applicant, then living in Iran with his family, was physically abused by his father and had a troubled childhood. He was, at about the age of 17, dismissed from his school in Iran after he refused to attend a protest organised by the government. When he was 18, he was required to serve military service and elected to leave Iran by himself at that time. He travelled to Australia, through various countries in 2011, and was taken into immigration detention on Christmas Island for some 10 months commencing in 2011.

12. He was moved to the mainland, at first to Darwin and then to Canberra, and did some work in the construction industry at that time. He was granted a protection visa by this country in July 2012, and it is that visa which is the subject matter of the present review.

13. In 2013, he went to a school in Bankstown where he received tuition for about six months. He had limited income provided by the government, amounting to some $420 per fortnight, and most of that money went towards his rent in shared accommodation. While he was at school, he worked weekends and otherwise worked part-time outside school hours. He did painting work in the latter part of 2013.

14. From his teenage years, he had begun to drink alcohol and by late 2013, he was drinking heavily. He also became addicted to gambling on poker machines. At the end of 2013, a friend introduced him to several persons from Afghanistan who were living in the area. At the end of December 2013, he drank heavily with those persons. He drank Jack Daniels whiskey in large quantities, and at the instigation of one of the Afghan persons, he agreed to participate with them in robbing people in the street nearby.

15. He participated in four robberies in company: first in December 2013; twice on a day in January 2014; and finally, in mid-January 2014. It is those offences of which he was subsequently convicted.

16. All his offending took place over a 16-day period. He said that at the time he was depressed, a relationship of his had broken up, and he was heavily affected by his drinking and gambling. It can be seen from that history, that for at least three years, he had been without family guidance and living in very unfortunate circumstances, alone. He was 20 when he committed all the offences in question. There was nothing in his record prior to the first offence.

17. On the first three of the four offences, he told the Tribunal that he was drunk, and he was in no condition to dispute any aspect of the facts sheet tendered before the sentencing Judge for those first three incidents. The fourth incident, he told me, he was not affected by any alcohol. Each of the incidents was in company with one or more of the persons with whom he came into contact in late December 2013. Some of those persons had a criminal record, and at least one of them was on bail for criminal offences of a similar nature at the time of the applicant’s offending.

18. Each of the offences involved violence on the part of the applicant. The Fact Sheet[1] sets out that in the first incident, the applicant kneed the victim, who was walking home from the Lidcombe railway station, in the forehead. In company, he subdued the man who ran away, and they took his wristwatch and his bag. The victim suffered a cut to the knee at this point.

    [1] Respondent’s Tender Bundle, TB2.

19. In January 2014, another person, was walking home from Lidcombe railway station at night and, in company, the applicant put that person in a headlock and punched him. The applicant’s companion went through his pockets while the applicant stood nearby. The victim was robbed of a wallet and a mobile telephone.

20. Later in the same evening, another person was walking home in Lidcombe at about midnight, and was attacked by the same persons, including the applicant. The victim felt one of the men wrap his arm around his neck and push something hard into his back. The other two men patted him down, taking property including his wallet and mobile telephone. All three attackers then ran off. The victim’s clothing was later analysed, and the DNA on the victim’s shirt included that of the applicant, showing that the applicant was the man who wrapped his arm around the victim’s neck.

21. On the fourth day of offending, a person was again attacked in Lidcombe at night.[2] The applicant dragged the victim to the ground and tried to kick him in the face, the victim blocking the kick by raising his arms in front of his face. The other attacker took his mobile phone and bag and the applicant then released his grip and the attackers ran off. Subsequently, the applicant was restrained by passers-by and taken into police custody.

    [2] Respondent’s Tender Bundle, TB2, p 84.

22. Part Sentencing Remarks reveal the Judge’s description of the events and his attitude to them.[3] Having described the role which the applicant played in the four offences, the judge described the applicant as directly responsible for violence but said that all the principals were responsible for all the things that happened. His Sentencing Remarks related not only to the applicant, but also to the co-offenders.

    [3] G-Documents, G7, pp 32–34.

23. The Sentencing Judge described that the victims were vulnerable walking home late at night and attacked by three men.[4] Actual violence was administered by the applicant, who was involved in the taking of the property. He described it as a ‘thuggish cowardly attack’ and ‘a serious example of robbery in company’, ‘involving significant violence’.

    [4] G-Documents, G7, p 33.

24. His Honour’s remarks included that there was considerable violence involved, with the applicant administering the violence.[5] He described it as a ‘typical street robbery’ and a serious example of the type of offence involved.

    [5] G-Documents, G7, p 34.

25. The Judge sentenced the applicant to a term of imprisonment of five years commencing on in October 2014, with a non-parole period until October 2019. That is, the Judge required the applicant to be imprisoned for at least five years, unless then granted parole. The non‑parole period expired after the five-year period where he was then eligible for parole.

26. Prior to the term of imprisonment ordered by the Judge, the applicant had been on remand for an additional period, between the date of his arrest, which involved his imprisonment in January 2014, until bail was granted to him in about May 2014. Subsequently, one of the conditions of bail was that he should abide by a curfew.

27. The applicant was taken into custody by police officers because he breached the hours of curfew later in 2014 and was taken back into custody. The circumstance that he breached the curfew which, on the evidence before me, was a deliberate act, is one of the circumstances of the case which must be taken into account.

28. The breach of bail conditions was the applicant’s only offending while he was at liberty on bail.

29. The gaol sentence subsequently imposed by the Judge commenced in October 2014, when his bail was terminated.

30. I will return to the significance of the sentence imposed by the District Court Judge later in these reasons, which has particular importance for another purpose.

31. The evidence before me extends from the period of time of the applicant’s imprisonment, extending over the period of incarceration for five years. It consists, to some extent, of his own evidence, but also evidence which has been collected by the applicant with the assistance of his counsel, Ms Phillips, who appeared pro bono, and is well-summarised in an affidavit of the applicant dated 19 April 2020. There is a useful summary of what occurred in prison in relation to the applicant.[6]

    [6] Affidavit of Applicant dated 19 April 2020, [34] –[37].

32. At paragraph 34 of his affidavit, on which he was not significantly cross-examined by the respondent, he said that he took advantage of every work and educational opportunity he could. He said that after he recovered from the shock of being in gaol, he thought about what to do to improve his life. He correctly says that he had been through so much to get to Australia, he realised he wanted to be in the best position that he could be when he got out of gaol.

33. His schooling had been interrupted and incomplete. In gaol, he undertook a good bit of education, including vocational education. He obtained a number of job qualifications while in prison. In November 2016, he obtained a Statement of Attainment in Food Safety Supervision, involving the use of hygienic practices for food safety, and he participated in safe food handling practices. In April 2017, he obtained a licence to operate a forklift truck. In May 2017, he completed the Gurnang Life Challenge intake while in prison. He was given a certificate for most consistent effort. In the same month he was awarded by the Western Institute of TAFE New South Wales an achievement award for money management, and an achievement award for job preparation skills. In the same month, he received a Statement of Attainment for the construction of several construction excavator operations.

34. In 2017, he completed the EQUIPS course while in gaol. Three programmes were completed: the foundation programme completed in May 2017; the aggression programme completed in June 2017; and the addiction programme which he completed in July 2017. Those courses, in particular, enabled him carefully to consider both his gambling habit and his alcohol addiction, neither of which was available to him in the gaol or later on in immigration detention. The effect of the intervening period is that he has formed the determination no longer to take alcohol and no longer to gamble on poker machines, and the addiction programme in the EQUIPS course has been helpful to him. To continue the courses which he undertook in prison, he participated in a programme of prisoner fellowship called Prisoners Journey and successfully graduated from it. He obtained a New South Wales national licence to perform high risk work in June 2017 and in January 2018, obtained a Statement of Attainment from the BSI Learning Institute in hospitality, fitting him to prepare and present sandwiches and use hygienic practices for food safety.

35. The remarks made about him by case managers and prison officers, in the period of time from 2015 onwards, speak very well of him. In February 2016, a prison officer recorded he showed a great work ethic, was polite to all officers, and willing to help where it is possible. Later in the same month, another prison officer said that he was courteous and always polite to staff and other officers. In September 2016, a prison officer recorded that he works very hard and is a dedicated worker, always working as directed and to a high standard. It was said that he has ‘a good work rapport with his work peers and industrial staff.’

36. In October 2016, a prison officer recorded that he works well and turns up every day, he is always willing to learn, has no issues. In December of the same year, a prison officer recorded that he works well in the print shop. He is currently training to be a store-person and on the guillotine machine and has great attitude to work and is constantly asking for things to do. He said that the applicant has nil issues.

37. In April 2017, a prison officer recorded that he attended and completed all components of the GMEQF programme. He was an active participant to all sessions. He observed that the applicant wants to start a new life away from drugs and gambling and his old friends. The applicant deposed that he has not ever been a drug taker. The report continued that he is determined to resume his painting as a business on release and has set realistic goals for himself in order not to re-offend.

38. Another prison officer, in April 2017, recorded a positive remark about the applicant. He says that the applicant was called down to the office and asked to do a clean-up in the visitors’ area. He performed the task very thoroughly and in ‘good time with no hesitation on any of the tasks.’ Later in the same month, a prison officer recorded that the applicant was ‘currently working in visits as a sweeper with excellent work reports, has completed forklift excavator and EQUIPS foundation courses.’

39. A prison officer recorded in May 2017, that he was ‘called to the visit area to complete a special work task. The removal of a very smelly dead rat. [He] did excellent work with no complaint.’ His efforts were appreciated.

40. Again in 2017, another prison officer remarked that he has been a great help with painting as this has been his trade, and that he found him easy to get along with and trustworthy. He works well with other inmates he said and he’s happy to work alone if need be. He was described by another prison officer as keen to work and often volunteers for extra offers to assist other inmates.

41. Similar remarks were made about the applicant and his work ethic in August 2017 and that from October 2017 there was a change in the work which the applicant did from his prison accommodation. He began to work under the supervision of Taronga Park Zoo employees at the Wildlife Care Centre, connected to the Windsor Correctional Centre.

42. In October 2017, a prison officer recorded that every time he had an interaction with the applicant, he was ‘quiet, polite and well respectful towards staff.’ He was described as hard-working and loves working at Wildlife. More reports about his work under the supervision of the Taronga Park staff have continued throughout the balance of 2017.

43. In August 2018, the authorities at Windsor allowed him to work in a work-release programme with an organisation building pallets. In order to leave the prison premises, he wore an ankle bracelet so that the authorities knew where he was. He would rise well before 5 am, when he was driven to work and would work until about 3 pm each day. A prison officer spoke to employees of the pallet organisation and reported that all comments made to him were of a positive nature regarding the offender’s work performance and work ethic.

44. His work release continued for several months until the mandatory cancellation of his visa occurred, when, as a consequence of the cancellation, his work release was brought to an end.

45. Working unsupervised by any corrections officer at the pallet organisation, and the trust placed in him, demonstrates that the applicant made a very good impression on the corrective officers and case managers.

46. The applicant says in his affidavit that he has learnt much from all the things that have happened in the last six years. He says, ‘I think all these lessons make me a much better person.’[7] He also says he has grown up and now understands what it was that made him offend even though he says there was no excuse for the offending. He says he will ‘always be ashamed of the part he played and the harm that was done on the four young men whose watches and wallets’ were stolen during his offending.

    [7] Affidavit of Applicant dated 19 April 2020, [47].

47. The applicant has taken a lot of benefit from the courses and work which he did and from the trust placed in him while he was with the Corrective Services. There are no adverse reports about his behaviour during the five years of his imprisonment. Similarly, there are no adverse reports about his behaviour at Villawood since he was taken to immigration detention last October, immediately upon the grant of his parole.

1. The circumstances under which he was granted parole are displayed in documents included in the Respondent’s Tender Bundle.[8] Significantly, there is a report made for the purposes of consideration by those who granted him parole. A senior community corrections officer, in his report of 31 July 2019[9] said that the applicant appears to display motivation for change and has demonstrated this through successful participation in numerous programmes and registrational courses whilst in custody.

   [8] Respondent’s Tender Bundle, TB5, p 217–221.

   [9] I have corrected the date which appears at page 221, from 2017 to 2019, because it is clearly a 2019 document.

2. The corrections officer says that the applicant has expressed a willingness to undertake further intervention as required in the community and says that he has not incurred any internal discipline charges while in custody. He has received positive reports concerning his behaviour from services and programme staff, who reported that he always presents as pleasant and well-mannered. The applicant may have some language problems, but otherwise has complied with his instructions.

3. Reference was made to him obtaining a C3 classification which enabled him to work outside the prison for the pallet organisation. There is a summary of his completion of the EQUIPS programme and the various work qualifications which he obtained while incarcerated. The document says that he has been assessed as a low-medium risk of re-offending according to a service inventory and therefore recommends that he be granted parole forthwith. In accordance with the usual procedures, he was required to have weekly face-to-face contact with the community corrections officer for the first six weeks, including a home visit in the first two weeks. After the first six weeks, the community corrections officer would supervise the applicant and the applicant would be required to report to the officer every six weeks with home visits not being required. If the community correction officer identifies any concerns, the officer may revise the risk assessment and supervision level as required.

4. Under the heading of the Overall Assessment, the officer commented that the applicant ‘displays a commitment to changing his behaviour and appears to have realistic and achievable goals for the future.’ As to the conditions of the parole, it was recommended that four conditions be included in his parole if he was granted parole:

   (a)The first was that he must abstain from alcohol and undertake and maintain AOD, that is alcohol or drug addiction programmes or counselling if directed to do so.

   (b)The second condition was that he was refrain entirely from gambling and must, if so directed by his officer, seek assistance or counselling in controlling his gambling.

   (c)The third condition was that he must not contact, communicate with, stalk, harass, or intimidate the victims or the victims’ family.

   (d)The fourth condition was that he must not contact, communicate or associate with the co-offenders without the express prior approval of the officer.

5. The applicant told me that he has no intention of communicating with those persons who were co‑accused.

6. The Windsor Community Corrections officer reviewed the report and supported the recommendation for parole.

7. All of those matters, including the proposed parole order, have been unnecessary to take into account in considering whether the protection of the community requires the continued detention of the applicant.

8. In addition to the assistance which the applicant would have from a community protections officer for the period of his parole, which will not expire until October 2022, the evidence shows that Mr Kwon, who runs an organisation which supports former prisoners will, together with other persons working for his association, be giving the necessary support to the applicant to enable him to obtain employment and to encourage him not to re-offend. I have heard evidence from Mr Kwon that shows that he and others in his association, are likely to be able to provide any necessary support which the applicant will require if released into the community.

9. More generally, the thing which has changed particularly since the time of his offending just prior to his 21^st birthday, seems to me to be that he has matured substantially. He has had guidance in the last six years which has been important for his maturation and for his general education. He has demonstrated during his period of imprisonment that he has impressed those with whom he came in contact in the prison system, who considered that he was fit for release into the community subject to the conditions of parole to which I have referred.

   Expectations of the Australia Community

10. This part of the Direction has been the subject of Federal Court authority, including the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185. It was explained by the Full Federal Court in that the factor of the expectations of the Australian community is one which, in most cases, would of itself favour the refusal or cancellation of a visa of a person who failed the character test, where the non-citizen has breached and where there is an unacceptable risk that they will breach the law. The Court laid down that in applying the consideration, it is not for the delegate or the tribunal to assess for itself what community expectations are, either in general or in the particular case.

11. The consideration is one amongst other matters and the wright to be given to it, like all such considerations, is a matter for the decision maker, to be put into the balance together with all other relevant considerations, to decide how the discretion should be exercised in all of the circumstances of the case.

    OTHER CONSIDERATIONS

12. I turn to other considerations in and stemming from the Direction. The first of the express other considerations is the question of non-refoulement obligations owed in respect of the applicant.

    Non-Refoulement Obligations

13. It is conceded by the respondent that non-refoulement obligations are owed by this country under its treaty obligations in respect of the applicant so that his return to his country of origin, that is Iran, would at this point be in breach of its treaty obligations. Presently, the applicant is detained at Villawood and I have been informed in this case, as I have been informed in a number of other cases, that the policy of the government which is uniform and has no exceptions, is that this country will not refoul a non-citizen in breach of its treaty obligations.

14. It is then necessary to look at the statutory and other background of the matter. The starting point is the decision of the High Court of Australia in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (‘Al-Kateb’). That decision of the High Court still binds in this country, and notwithstanding subsequent High Court authority. It was determined in Al-Kateb that the effect of ss 189, 196, 198 and 199 of the Act was that a person who could not be removed from this country, could lawfully be detained indefinitely in immigration detention. That conclusion was reached by the High Court, and both as a matter of construction of the sections to which I have referred, and on the basis that such legislation was within the power of the Commonwealth Parliament to enact.

15. It is important to note about Al-Kateb, that the High Court was concerned only to construe the sections of the Act to which I have referred to. It was not concerned with the prior circumstances of Al-Kateb. Those prior circumstances which were not before the High Court for review included that he had been refused a visa and that review had been sought of the refusal in the then Refugee Review Tribunal.

16. In considering the import of the Al-Kateb decision, it is important to consider the subsequent Full Federal Court decision in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 307 ALR 49; (2014) 138 ALD 495 (‘NBMZ’). That case was decided by the Full Federal Court at a time when the same provisions of the Act as were considered in the High Court were in force. The Full Federal Court was asked to consider whether the refusal by the Minister to grant a protection visa to NBMZ was legally unreasonable. The Court concluded that the refusal to grant the visa for the reasons mentioned by the Minister was legally unreasonable. That was because the Minister failed to consider in his deliberations as to whether a visa should be granted to NBMZ, the consequence that NBMZ would, unless the visa was granted, be indefinitely detained by reason of the legal effect of the Act. The Court set aside the refusal of the Minister to grant a visa to NBMZ and required the Minister to take account of the indefinite detention consequence of refusal of the visa.

17. It seems to me that the present circumstances are very similar to those which were considered in NBMZ.

18. The effect of granting the visa is that the applicant would no longer be an unlawful non‑citizen and no longer subject to detention at all. A last chance, as it were, for a person faced with indefinite or prolonged detention is for him or her to obtain or retain a visa. Not to take that matter into account in deciding whether to grant a visa or to revoke its cancellation would be legally unreasonable.

19. In the present case, what is the exercise of discretion essentially involves is the weight to be given to the factor of protection of the Australian community (together with the expectations of the Australian community as explained above) against the weight to be given to the circumstance that CCGN’s detention will be very prolonged, if not indefinite if the visa cancellation is not revoked.

20. It is next necessary to mention that since various provisions of the Act considered in Al‑Kateb and in NBMZ that were given, the Act has been amended by adding s 197C which was in turn discussed by North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576. North ACJ decided that s 197C produces a legal obligation of removal notwithstanding the existence of non-refoulement obligations under treaties to which this country is subject. The case was once cited in a decision of the Full Court of the Federal Court, which did not rule upon its correctness, but described its significance as a large question.

21. I am bound by the decision of North ACJ, but nevertheless I am informed in this case, and as I have said have been informed in a number of earlier proceedings, that the policy of the government which is uniform and without exceptions, is that Australia will not refoul a non‑citizen in breach of its international treaty obligations. I must act upon that information. It is, in any event, information which is confirmed in the Direction. In cl 14.1(2) the Direction states that:

    Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which a non-refoulement obligation exists.

22. Similarly, cl 14.1(6) states that:

    Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations.

23. Thus, independently of any question of the proper construction of s 197C of the Act, the Tribunal is to act on the basis that Australia will not refoul the applicant. Failing to take into account the consequence of refusal of the visa in the present case, would be legally unreasonable for substantially the same reason as was held to be the case by the Full Federal Court in NBMZ. Unless the cancellation of the applicant’s visa is revoked, he will remain in immigration detention.

24. In any event, I add that there are two independent reasons why the question of continuing detention must be considered in the present case. In the first place, one of the representations made by the applicant in the course of these proceedings is the prospect that he may be detained for a prolonged or indefinite period. Secondly, in any event, it is one of the circumstances of the case that continued prolonged or indefinite detention of the applicant will deprive him of his liberty and thereby cause him harm.

25. The sentencing judge in fixing a sentence for the applicant had regard, as a material matter, to the protection of the Australian community. That circumstance was made clear by the considerations adverted to by the High Court in Veen v The Queen (No 2).[10]

    [10] (1988) 164 CLR 465, 476.

26. That judgment was referred to by Gummow J in Al-Kateb. His Honour said:

    This coincidence of punitive and non-punitive purposes is not uncommon. In Veen v The Queen (No 2), this Court recognised that among the purposes which inform a criminal sentence are not only the punitive purposes of deterrence, retribution and reform, but also what may be seen as the non-punitive purpose of protection of society.[11]

    [11] Al-Kateb [136].

27. The sentence must be proportionate to the crime and the protection of society is a material factor in fixing its length.

28. One factor, and the factor of importance in my opinion, which ought to be taken into account by a decision-maker, including this Tribunal, in considering the protection of the community, is that the District Court in this case has fixed the sentence which the applicant is given, taking into account the protection of the community as a material factor.

29. Moreover, since the sentencing judge fixed that sentence, the various changes of position to which I have referred in these reasons, including education of the applicant and the favourable impression which he has given to those with whom he came into contact in the prison and those who recommended his release on parole, all tend to confirm that substantial steps have already been taken after the District Court proceedings and sentence including the parole period which is yet to expire, for the protection of the community.

30. The respondent in its Statement of Facts, Issues and Contentions and in oral argument, has sought to refer to several possibilities under which the applicant might be released early. In the first place, the respondent has referred to the possibility that the Minister himself might exercise his power (a non-compellable power) to issue a visa to the applicant under s 195A of the Act. Similarly, the respondent has referred to the possibility that the Minister might choose to make a residential determination entitling the applicant to be removed from Villawood and to move elsewhere.

31. There is no evidence before the Tribunal that the Minister proposes to consider any such thing or that he will do so. In NBMZ there was no evidence that the Minister would consider any such step being taken and the Full Court expressed their agreement with the proposition that the applicant is entitled to have the proceeding before the Full Court dealt with on the hypothesis that he will be indefinitely detained and that any question of a visa under s 195A is, at best, a matter of speculation. The same is true of any possible residential determination.

32. Similarly, the respondent referred to the possibility that a third country might be found which will accept the applicant. No such country is identified. The Direction itself requires consideration to be given to the extent of impediment if the applicant is removed. While no such country is identified, consideration cannot be given to that aspect of the Direction because the impediments are unknown. In any event, at the present time, the coronavirus pandemic is within most countries of the world. Moreover, there is no reason to think that any third country would accept the applicant.

33. The other matter referred to by the Minister suggesting that Iran might alter its current practice of committing a homosexual, such as the applicant is, to death or to corporal punishment, is similarly a matter that ought not count against the grant of a visa because the prospect that Iran might do so is a matter on which the evidence is entirely silent.

    EXERCISE OF DISCRETION

34. The interests of the protection of the community and the other factor of the expectations of the Australian community do not, in my opinion, require the prolonged or indefinite detention of the applicant in immigration detention.

35. I conclude that the correct or preferable decision in this case is to revoke the cancellation of the applicant’s visa with the consequence that his protection visa is restored in force.

I certify that the preceding 82 (eighty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

....................................[sgd]....................................

Associate

Dated: 8 May 2020

Date(s) of hearing:	4, 5 & 7 May 2020
Counsel for the Applicant:	Ms S B Phillips
Solicitors for the Respondent:	Sparke Helmore Lawyers