CLMF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

CLMF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3109 (6 September 2023)
Division:GENERAL DIVISION
File Number(s): 2023/4136
Re:CLMF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:6 September 2023
Date of written reasons: 4 October 2023
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the applicant’s application for a protection visa not be refused under section 501(1) of the Migration Act 1958 (Cth).
.........[sgnd]...............................................................
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION – refusal of protection visa under section 501(1) – applicant does not satisfy the character test – aggregate sentence – serious violent crime – whether to exercise statutory discretion to refuse visa – sentencing remarks closely considered – applicant is owed non-refoulement obligations – Direction no. 99 –– frequency of applicant’s offending – trend of increasing seriousness – cumulative effect of offending on the community – serious risk to the community should the applicant reoffend – low risk of reoffending – sufficient protective factors – strength, nature and duration of ties to Australia weighs in favour of not refusing visa - applicant has resided in Australia for a significant length of time – applicant’s brother and extended family reside in Australia – expectations of the Australian community weigh against applicant – legal consequences of decision – applicant cannot mandatorily be refouled to South Sudan – prospect of indefinite detention weighs substantially in applicant’s favour – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
CASES
Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member Dr N A Manetta
4 October 2023

After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.[1] These are the reasons I read out to the parties with relatively minor amendments. I note that the hearing in this matter ended just two days before the final day by which the Tribunal was required to notify its decision, without which the decision under review would have been deemed to be affirmed. This necessitated shorter oral reasons.
[1] These reasons contain certain standard paragraphs, in particular [5] and [19].
This is an application by “CLMF”, a person whose identity is subject to a confidentiality requirement and to whom I shall refer in these reasons as “the applicant”. He seeks a review in this Tribunal of a decision of the respondent’s delegate dated 7 June 2023. By this decision, the delegate, acting under section 501(1) of the Migration Act 1958 (Cth) (“the Act”), refused to grant the applicant the Protection (Class XA) visa for which he had applied. In reaching his or her decision, the delegate relied substantially on a serious crime of violence in which the applicant had been involved and which was committed against an off-duty police officer. That offending led to an aggregate sentence in relation to two charged offences of 3 years (reduced to 2 years and 10 months for time spent in custody and on home-detention bail).
The delegate first found that the applicant did not pass the so-called “character test” under section 501 and that, therefore, the discretion to refuse the visa was enlivened. That conclusion was clearly correct. The delegate then had to weigh the various considerations required to be addressed under Direction no. 99, issued under section 499 of the Act.[2] Having weighed the considerations, the delegate decided to refuse the application for a protection visa.
[2] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence before me, I must decide whether the threshold for the exercise of the discretion in section 501(1) is met in this case; and if so, I must further decide whether to exercise the discretion to refuse the visa. I have already indicated that the threshold condition is met.
In matters like these, the Tribunal conducts a de novo hearing on the merits.[3] It hears evidence and oral submissions, receives written evidence and written submissions. It does not merely review the delegate’s decision for error but is tasked with reaching the correct or preferable decision afresh on the evidence adduced before it. This means that the Tribunal may set aside the decision under review notwithstanding the absence of any discernible error in the reasoning of the delegate if that is the correct or preferable decision on the evidence before it; equally the Tribunal may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasoning if that is the correct or preferable decision on the evidence.
[3] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [98] and [141].
At the hearing before me, Ms Finegan represented the applicant; Mr Ellison, the respondent. I acknowledge their assistance to me. In particular, I was impressed by the balanced and measured advocacy of Mr Ellison, whose questioning and submissions were very fair and calculated to assist the Tribunal in its difficult task. His conduct well befitted the respondent’s model-litigant obligations.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the applicant’s application for a protection visa not be refused under section 501(1) of the Act. I now turn to set out the background facts and the reasons for this conclusion.
BACKGROUND FACTS
The applicant was born on 18 March 1993 and was, therefore, 30 at the time of the hearing. He is a citizen of South Sudan. The applicant arrived in Australia on a special humanitarian visa ‒ not a protection visa ‒ in 2008, aged 15. He came with his two brothers.
The applicant’s criminal record was before me.[4] The applicant has a number of minor criminal offences against his name. In January 2014 he was convicted of driving whilst disqualified or under suspension. He was fined $400 on that occasion. In April 2014, he was convicted of having failed to comply with breath analysis directions. According to the record, he was “sentenced” ‒ I assume this should read “convicted” ‒ and fined $1100, and he also suffered a licence disqualification for seven months. In April 2016, he was convicted and fined $800 for failing to give personal details to an officer when asked to do so and for driving whilst disqualified or under suspension. All this offending was dealt with in the Magistrates Court. The applicant accepted that at this time in his life he was drinking to excess.
[4] Ex R1, 27-28.
On 28 November 2018, the applicant pleaded guilty on the second day of his trial in the District Court of South Australia to two offences that had occurred on 1 November 2015. I had the court’s sentencing remarks before me.[5] I have read them carefully and rely on them.
[5] Ibid, 29ff.
The offending was as follows. On 1 November 2015, the applicant and two other young men were walking in Rundle Mall, which is a pedestrian-only shopping precinct in central Adelaide. The group were jumping about and hitting overhead signs. At one point, a sign fell to the pavement and was damaged. The group was being videoed by an off-duty police officer, who used his mobile phone for this purpose. When challenged by the group, he informed them that he was a police officer. The officer followed the group for a while and ended up pursuing them down a nearby street. The applicant dropped back at this point and hid himself. The police officer walked past the applicant’s hiding spot. The applicant approached the police officer from behind while his friends (who had been walking on) turned around and approached the police officer from the front. The applicant surprised the officer from behind and struck him forcefully to the back of his head. The incident was captured on CCTV footage.
The applicant’s blow caused the victim to stumble and fall to the pavement. He lost consciousness despite his physical strength. The sentencing Court records that while the victim was lying semiconscious and helpless on the pavement, all three group members proceeded to kick and stomp on his head.[6] At one point the applicant took the victim’s mobile and used the edge of it to strike him further in the head. The Court noted that the victim’s mobile has never been recovered; nor have his credit cards, his driver’s licence, and cash. The three offenders left the officer lying in the street.[7]
[6] Ibid, 30.
[7] Ibid.
The Court accepted the contents of an expert report prepared by a Dr Lim. This report was before me.[8] The Court noted that the applicant had witnessed many atrocities as a child in South Sudan and had been separated from his parents since he was about seven years of age.[9] He had lived in a refugee camp in Kenya until coming to Australia in 2008 on a humanitarian visa.[10] The applicant’s background is a very troubled one.
[8] Ibid, 106ff.
[9] Dr Lim records that in 2014 (or thereabouts) the applicant located his parents again: see Ex R1, 108.
[10] Ibid, 31.
The Court specifically found that the applicant’s assertion to Dr Lim that he was heavily drunk at the time of the offending was untrue.[11] The Court found that the CCTV footage clearly demonstrated that the applicant was not heavily drunk.[12] Dr Lim said in her report that the applicant had symptoms consistent with a post-traumatic stress disorder, but she was unable to link the criminal offending to the disorder since the applicant claimed he had no memory of the offending.[13] The Court noted that the applicant had not reoffended since 2015, that he had continued in employment and had successfully completed studies in the meantime.[14] The Court described the applicant’s attempts to rehabilitate himself from alcoholism as “somewhat limited”, however.[15]
[11] Ibid, 31.
[12] Ibid.
[13] Ibid, 114.
[14] Ibid, 31.
[15] Ibid.
The Court rejected the applicant’s claims to be remorseful noting that it had taken the applicant “just over three years to face up to the truth”[16] of his offending and that he had pleaded guilty only because the evidence against him was so strong. He received no discount for his plea of guilty in these circumstances.
[16] Ibid, 32.
The Court expressed its deprecation of the offending in very strong terms and began its sentence calculation with a term of three years’ imprisonment. This was to be an aggregate sentence imposed with respect to, first, an “aggravated cause harm” offence against a police officer and, secondly, an “aggravated dishonestly take property without consent” offence against the same victim. The sentence was reduced to two years and ten months given time spent in custody and on home-detention bail. A non-parole period of one year and six months was fixed to commence on 30 April 2019 (when the applicant was last remanded in custody).
The applicant’s humanitarian visa was subsequently cancelled mandatorily. This was required by section 501(3A) of the Act given the sentence of imprisonment imposed by the District Court. The humanitarian visa has not been reinstated. On 23 November 2020, the applicant applied for a Protection Class XA visa. For reasons that are not clear to me, just over one year elapsed before the applicant was notified in December 2021 that the responsible delegate was considering refusing the visa under section 501(1) of the Act. I note that this is a considerable period of time. The applicant is recorded as having responded on 10 December 2021.[17] Again, the final decision refusing the visa was only taken on 7 June 2023, which represents a further lengthy delay in the progressing of the applicant’s application. Since leaving jail, the applicant has been held in immigration detention where he remains.
[17] Ibid, 280.
Finally, as a matter of background, I note that the substance of the applicant’s application for a protection visa has been considered,[18] and it has been formally determined by the respondent’s officers that, first, the applicant is owed non-refoulement obligations (and that he has, therefore, satisfied that qualification for the grant of a protection visa); and, secondly, that he is not a danger to the community and, therefore, not ineligible to receive a protection visa under the Act on that account. Mr Ellison submitted, and I accept, that in these circumstances, the applicant may not be mandatorily refouled to South Sudan given section 197C of the Act.
[18] Ex R2, 155ff.
REASONS
I now turn to Direction no. 99 (“the Direction”). In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks that I repeat here:
[30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
[31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
[32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.
I now turn to apply the Direction. There are five so-called “primary considerations” for me to consider and weigh. The first primary consideration is the protection of the Australian community. Paragraph 8.1(1) requires me to bear in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by the non-citizen in question. I am to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they will not cause or threaten harm to individuals or the Australian community. I bear this in mind.
By subparagraph (2) I must give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should he or she commit further offences or engage in other serious conduct. Paragraph 8.1.1(1) sets out a number of principles that I must apply when considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date.
It is sufficient for me to note that the earlier offending[19] must be taken into account, but I am clear that it has not proved a “tipping-point” in my consideration of this matter. As it is not a tipping point, I do not need to deal with it beyond noting that drink-driving is a highly antisocial act and driving whilst under suspension is a highly defiant one. It is well appreciated that the consequences for road users of accidents caused by another’s misuse of alcohol can be devastating.
[19] Described at [9] above.
Clearly, the most serious, and recent, offending is of principal concern. The assault was a most serious one. I am required to take it very seriously under paragraph 8.1.1(1)(i). The taking of the phone and other items was also serious in that it involved, first, the deprivation of property, and secondly, an attempt to destroy evidence showing the applicant had committed a crime (namely, the video recording stored in the phone). I acknowledge that the Court specifically found that the offending was dangerous because the blow to the victim was extremely forceful. It caused a strong man to lose consciousness almost immediately so that he fell to a hard surface where he was set upon with kicks and stomps to his head. A proper assessment of the seriousness of the offending must include, in my opinion, acknowledgment of the fact that the effect of this violence can be unpredictable. It is not an exaggeration to note that this sort of offending can easily lead to very serious impairments and even death. I also take into account the fact that the applicant knew his victim was a police officer at the time of the attack. The victim had a formal responsibility to bring offenders to justice. That is an aspect of the matter that deserves very careful weighing.
I have had regard to the sentence that was imposed, and it was a long one, especially given the applicant’s relatively benign prior history and his comparative youth at the time of the offending.
There has been some frequency in the applicant’s offending when the earlier instances to which I have referred are taken into account, and there has been a trend of increasing seriousness because the most recent offending represented a marked escalation both in risk to the community and in the expression of antisocial violence.

I note in this regard that the applicant continued to drink whilst on bail awaiting trial. The link between alcohol and the most recent offending is not clear in this case. Certainly, the applicant claims alcohol was a factor in the offending; and, if that is true, it is noteworthy that the applicant did not address his drinking while on bail. As I have noted, however, the Court was satisfied that the applicant was not heavily drunk as he had claimed to be. Generally speaking, the applicant’s misuse of alcohol raises concerns. There is a cumulative effect of offending on the community and I take that into account.
I must take into account the risk to the Australian community should the applicant commit further offences or engage in other serious conduct: see paragraph 8.1.2. I note what appears in paragraph 8.1.2(1). 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 of recurrence may be unacceptable. I was also referred to what appears in paragraph 5.2 (6).
By paragraph 8.1.2(2), I must have regard to two matters “cumulatively” when assessing risk. The first matter requires me to assume that the non-citizen engages in further criminal or other serious conduct. Once again, I note that it is sufficient that I confine myself to a consideration of the most recent offending. I regard the nature of the harm that would be caused if the applicant engaged in further criminal conduct of this type as extremely serious. I have already referred to the fact that the applicant’s violence was egregious. In such circumstances, the consequences for victims are largely unpredictable. Depending on chance, the consequences can extend to extremely serious injury or even death. That is a most serious aspect of the matter. The seriousness of the consequence is exacerbated, in my view, by the fact that the victim was seeking to enforce Australia’s laws. I note further that significant items of personal property were taken and have never been recovered. Whilst it is a secondary matter, it should not be overlooked.
I must have regard to the likelihood of the applicant engaging in further criminal or other serious conduct. The respondent submitted to me here that the risk of reoffending was low. I think that submission is correct. I do not accept the applicant’s contrary submission that his risk of offending is negligible.
No psychological report was tendered that suggests the applicant has rehabilitated himself to an extent where the risk may be said to be negligible. Ms Finegan pressed me with the submission that the applicant’s behaviour in the community while on bail was impressive. He has achieved much in this regard, she said. Mr Ellison did not demur from this assessment, but did not accept that the risk of recidivism was negligible.
In my opinion, there are too many unknowns in this case for an assessment to be made that the risk of reoffending is negligible. In particular, it was a feature of the applicant’s submissions that his post-traumatic stress disorder was responsible for the offending. That has not been established on the evidence; but even if it had been, it is not clear to me that his disorder has been adequately treated and resolved. To the extent that alcohol disinhibited the applicant partially ‒ and again that is not clear on the evidence given the Court’s remarks ‒ one must ask: What caused the applicant to resort to misusing alcohol in the first place? It does seem to me that the applicant’s circumstances have not been fully analysed and addressed.
Ms Finegan pressed me with the further submission that the 2015 offending represented an aberration in the applicant’s criminal record. In one sense that is, of course, true as there is no other offending in the record which comes close to the severity of this offending. That fact, however, only invites the question: What caused this applicant to lose self-control in a group and to be the leader in inflicting such vicious and dangerous blows upon the officer in question? It is clear that the offending was not simply aimed at removing the officer’s phone and destroying it. Rather, the applicant led an extremely dangerous and violent attack upon a prostrate and semi-conscious victim. I note that I had the benefit of viewing the disturbing footage of the attack in the course of the hearing.[20] Until the applicant and competent professionals address questions like these, there can be no sufficient basis, in my view, for accepting the applicant’s submission that his risk of reoffending is negligible.
[20] Ex R4.
As I have said, I do accept the respondent’s submission that I ought to assess the risk of recidivism as low. It seems to me that there are sufficient protective factors in place, and I should give the applicant credit, so to speak, for his behaviour whilst on bail and for his determination to improve himself to a point where he can now begin a work placement (as a nurse) if the responsible regulatory authority permits him to do so.
I think that his uncle, who gave evidence before me, will exercise an appropriate and beneficial influence upon him. The applicant would live with him if he were released. The applicant’s uncle has a family home where there are young children who are apparently keen to re-establish contact with the applicant. There would be a stable environment in place for the applicant.
Furthermore, the applicant’s uncle does not drink alcohol. I believe a mistake was made in the past when the applicant’s drinking was not discouraged actively (although he was of an age to make his own choices in this regard). The applicant’s uncle ought now to insist, in my opinion, that the applicant not drink again as a precautionary measure. I accept further that the effect of prison and immigration detention has not been lost on the applicant.
Accordingly, I regard the risk of recidivism as low, but I note that this is a matter to be weighed “cumulatively” with the nature and seriousness of the harm in question.
There is no family violence need to consider.
So far as the consideration of the strength, nature, and duration of ties to Australia is concerned, it is sufficient to note that I accept the respondent’s written submissions.[21] I shall not repeat them.
[21] See Ex R3, paragraphs [47] to [52].
I am also to have regard to the best interests of minor children in Australia. I accept the applicant’s uncle’s evidence that his two minor children do have a nascent relationship with the applicant. The relationship, however, is not one of father-child. That is an important factor for me to weigh also. I must also weigh the fact that the children have not spent much time with the applicant in recent years. The applicant was released from detention, but was re-detained within a relatively short time.[22]
[22] The applicant was released following the Full Federal Court’s decision in Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177 (“Pearson”) which required the release of a number of detainees whose visas had been cancelled when they ought not to have been. The effect of Pearson was reversed by an amendment to the Act: see Migration Amendment (Aggregate Sentences) Act 2023 (Cth).
Apart from this brief period, the relationships have not been sustained by one-on-one contact for some years now (since the applicant was remanded in custody in 2019). Accordingly, I attach very limited weight to this factor.
I must weigh the expectations of the Australian community: see paragraph 8.5. I accept what appears in paragraph 8.5 (1). “As a norm” the Australian community, which expects non-citizens to obey Australian laws in Australia, would expect the Government not to allow the applicant to remain in Australia as he has engaged in serious conduct in breach of the expectation that he should obey Australian laws. Paragraph 8.5(2) is important because it cites, in subparagraph (d), the commission of crimes against officials in the performance of their duties as a case where serious character concerns arise and where the Australian community would expect the Australian Government not to grant visas to permit non-citizens to remain. By subparagraph (3), I note the expectations of the Australian community to which I have referred apply regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community. By subparagraph (4) I note that I am not to proceed to assess the community’s expectations in a particular case for myself. The expectations of the Australian community are as set out in the paragraph. They count substantially against the applicant.
I must have regard to “other” considerations. These are set out non-exhaustively in section 9 of the Direction. I am required to have regard to the legal consequences of a decision to affirm the decision under review. It was accepted by the respondent ‒ and I accept this submission ‒ that the applicant cannot be refouled to South Sudan mandatorily. He has been found to be owed protection obligations and he has been assessed internally as not being a danger to the Australian community.[23] In these circumstances, section 197C of the Act provides that he may not be removed to South Sudan compulsorily.
[23] Ex R2, 155ff.
This leaves then the question of detention on an ongoing basis as a probable consequence of my decision if I affirm the decision under review. The respondent accepts that this is a factor that counts significantly in the applicant’s favour. I accept this submission as an appropriate concession, especially given the decision of the plurality of the full Federal Court in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“WKMZ”) [2021] FCAFC 55; (2021) 285 FCR 463.
WEIGHING THE CONSIDERATIONS
I must now weigh the various considerations I have identified. I accept that as a general rule primary considerations should be accorded more weight than so-called other considerations arising under section 9. But that does not mean that in no case can another consideration outweigh even strong primary considerations. I must always have regard to the individual circumstances of the case before me.
In this case I do accept and expressly acknowledge the very serious offending of which the applicant has been convicted. As I have made clear, this sort of offending can give rise to the most serious consequences for a victim: in some cases, indeed, it can lead to a victim’s death. That is an important aspect of the matter. My concerns have been heightened by the fact that the victim’s very position required him to do what he was seeking to do on that night; namely, to protect the Australian community from unlawful behaviour. I am also very concerned by the sheer viciousness of the attack, which, as I have said, was not simply undertaken to remove the victim’s phone, but was undertaken as a prolonged and vengeful assault on a prostrate and defenceless victim. This aspect of the matter is of particular concern. I accept, however, that the risk of its recurrence is low, and this is borne out by the applicant’s behaviour whilst on bail. His criminal record does not include other instances of this violence. As I say, I accept that the risk of recurrence is low (but not negligible) in this case, but I must also bear in mind just how serious the consequences of any recurrence could be for another person. Moreover, the community-expectations consideration counts substantially against the applicant.
I must also weigh the consequences of indefinite detention, understanding that expression in the way that it was defined by the plurality in WKMZ; namely, as prolonged detention without the detainee knowing when the detention will come to an end.[24] In this case, the detention would only come to an end by the applicant being granted a personal visa by the Minister (for example, under s195A of the Act) or by a third country accepting the applicant. The respondent concedes that the chances of this latter option are low.[25] And, indeed, it does seem somewhat counterintuitive to suppose that the respondent would successfully find a third country willing to accept the applicant when the Australian Government prefers the applicant’s removal from the Australian community in the public interest. At least, there is no prospect of a third country agreeing to take the applicant in the near future.
[24] See WMKZ at [123], [132]-[133].
[25] Ex R3, [66].
I do not proceed on the basis that the responsible Minister (or a successor in office) would propose to detain the applicant on a quasi-permanent footing as this would impute a completely unreasonable intention to him or her. There must be a point where the applicant’s situation in detention would cause the Minister such serious concern that he or she would have to break the impasse by the grant of a visa. But there is no evidence before me that the Minister intends to break the impasse after the further lapse of any period of time. Mr Ellison did not have instructions in that regard, even though as a practical matter, the grant of a personal visa by the Minister would appear to be the sole way the applicant can live outside a detention facility in the absence of a third country option being secured (a possibility which as I have said the respondent acknowledges to be unlikely). So, I believe I am faced with a situation where the applicant will endure a prolonged period of indefinite detention ‒ how long I cannot say ‒ if I affirm the decision under review. That is a matter that weighs in the applicant’s favour and substantially so: the plurality In WKMZ referred to the common law right of liberty as fundamental, as indeed it is.[26] I must face squarely, I believe, the consequences of the Tribunal affirming the decision under review. If I had been assured by the respondent that there was a definite timeline beyond which the applicant would not be kept in detention, I could have factored that into my consideration of the matter; but no such information was provided to the Tribunal.
[26] See WKMZ at [123].
FINAL CONCLUSION
All in all, I have concluded that the correct or preferable decision on balance favours not refusing the applicant a protection visa under section 501(1) of the Act notwithstanding his extremely antisocial offending. These are never easy decisions to make; but it is in my opinion the correct or preferable decision on the evidence before me today. Finally, I note again that I have not canvassed in detail the applicant’s earlier offending in these reasons; but I have taken it into account in my deliberations.[27]
[27] I would also note for completeness that I did not have regard to Ex A9.
FORMAL DECISION
As a consequence of my conclusion, I should set aside the decision under review and substitute a decision that the applicant’s application for a protection visa not be refused under section 501(1) of the Act.
I certify that the preceding forty-nine (49)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
…[sgnd]…………………………..
Associate
Dated: 4 October 2023
Date of hearing:  1 & 4 September 2023
Advocate for the Applicant:      Shannon Finegan
Instructed by Hannah Dickinson,
  Asylum Seekers Resource Centre
Advocate for the Respondent:  Tom Ellison,
  Australian Government Solicitor

[2023] AATA 3109

6 September 2023

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