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

DDGN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 174 (16 January 2024)
Division:GENERAL DIVISION
File Number(s): 2023/7821
Re:DDGN
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:16 January 2024
Date of written reasons: 12 February 2024
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 cancellation of the applicant’s bridging visa be revoked.
..........[sgnd]..............................................................
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION – mandatory cancellation of bridging visa – whether ‘another reason’ for revocation of cancellation decision – Direction 99 – serious offences involving indecent assault and arson – applicant has serious mental health conditions – no support networks in the community – substantial and real risk of failing to adhere to medicinal regime – mentally unwell person being detained in a non-therapeutic environment an unsatisfactory situation – liberty a fundamental common law right – decision set aside and revocation of cancellation decision substituted
LEGISLATION
Guardianship and Administration Act, 1993 (SA)
Mental Health Act, 2009 (SA)
Migration Act, 1958 (Cth)
CASES
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463
SECONDARY MATERIALS
Department of Foreign Affairs and Trade (Cth), Country Information Report Malaysia, 29 June 2021
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
12 February 2024

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 minor amendments.
[1] These reasons contain certain standard paragraphs, especially [7] and [25].
This is an application by ‘DDGN’, a person whose name is subject to a confidentiality requirement and to whom I shall refer in these reasons as ‘the applicant’. The applicant seeks a review of the decision of the respondent’s delegate dated 24 October 2023. By this decision, the delegate declined to revoke the cancellation of the applicant’s bridging visa that had taken place earlier under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).
The cancellation took place after the applicant had been convicted of a serious offence involving arson. This had led to the imposition of a sentence of just over one year, part of which the applicant was required to serve in jail. In these circumstances, the applicant’s visa was liable to be cancelled under the Act.[2]
[2] See s 501(3A) (in conjunction with subsections (6) and 7(c)).
The applicant made a timely application for an internal review of the cancellation decision. The internal-review delegate had two questions to address.[3] The first was whether the applicant passed the so-called ‘character test’ under section 501 of the Act. The second question, which only arose if the answer to the first question was ‘no’, was whether there was ‘another reason’ for the cancellation decision to be revoked. The delegate[4] first decided that the applicant did not pass the character test. There is no doubt that the delegate was correct in reaching this conclusion given the sentence of imprisonment to which I have just referred.[5]
[3] See s 501(CA)(4)(b)(i) and (ii).
[4] The delegate’s reasons appear at Ex R1, 17ff.
[5] See s 501(6) and (7)(c).
The delegate then addressed the second question. In this regard, the delegate was obliged to apply any direction issued under s 499 of the Act. The delegate applied Direction no 99 (‘the Direction’).[6] Having considered and weighed the various considerations required to be addressed under the Direction, the delegate decided that the cancellation decision should not be revoked. The delegate then formally found that there was no reason for the cancellation decision to be revoked under s 501CA(4)(b)(ii). The delegate declined, therefore, to revoke the cancellation.
[6] 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
The applicant has sought a review in this Tribunal.[7] Hearing the matter afresh on the evidence before me, I must address the same two questions as the delegate. I have already indicated that in my opinion the delegate correctly answered the first question. The only question of substance argued before me was whether there was ‘another reason’ for the cancellation decision to be revoked. Like the delegate, I must apply the Direction when I address this question.
[7] Ex R1, 4.
In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[8] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons 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 a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.
[8] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
At the hearing before me, the applicant was represented by Mr Lawton; Mr Chan appeared for the respondent.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and substitute a decision that the cancellation of the applicant’s bridging visa be revoked. I now set out the background facts and my reasons for this conclusion.
BACKGROUND FACTS
The applicant was not called to give evidence given his mental condition.[9] The respondent did not object to this course since it did not wish to cross-examine the applicant (given his condition). I did not hear oral evidence from any witness, except brief evidence from Mr Mamman of the Public Advocate’s office. I have taken the facts from the documentary evidence, but I do not believe they are in dispute to any significant degree.
[9] Principally, schizoaffective and bipolar disorders compounded by past alcohol and drug misuse.
The applicant is a citizen of Malaysia who was born there in October 1993. Upon arrival in Australia, the applicant began earning money as a fruit-picker, and he also worked for ‘Uber Eats’. Apparently, he soon broke up with his girlfriend who had accompanied him. She is now married and living in Melbourne.[10] The applicant entered Australia on a holiday visa apparently, and was subsequently granted a bridging visa pending consideration of a protection-visa application. I note that his claim for protection was rejected by the respondent’s Department, but he has applied for a review of that decision in this Tribunal. That application is listed to be heard in mid-February, in approximately four weeks’ time.[11] The application will be heard and determined in the Tribunal’s Migration Review Division and not by me.
[10] See Ex R2, 114.
[11] As at the date of my oral decision on 16 January 2024.
The applicant’s treating psychiatrist, Dr Spencer, notes that he is single and has no children. I understand that his biological father is dead. He has had no contact with his mother (or, I infer, his stepfather), an unfortunate situation that appears to have begun in 2019 or 2020, some years ago now.[12]
[12] Ex A2 and Ex R2, 114.
In 2019, the applicant had his first contact with mental health services. The medical-file material before me records that he was admitted to James Nash House for some three weeks.[13] He had heard voices and become paranoid according to his own description of his situation. He was started on a depot injection of Paliperidone and on Valproate tablets as well. Paliperidone is a drug that is frequently used to treat schizophrenia; Valproate assists in the management of bipolar conditions.
[13] Ex R2, 113.
It is also recorded that the applicant entered James Nash House ‘before he went into prison’[14] but there is no indication in his criminal record of an entry into the prison system in 2019. I do note, however, that there is confirmation that the applicant was in James Nash House in April 2019.[15] It would also appear that he had been arrested as a result of a Malaysian warrant having been issued. That matter, however, was not explored in submissions.
[14] Ibid.
[15] Ibid, 69.
As at 27 October 2023, the applicant is recorded as having a schizoaffective disorder with a history of cannabis and alcohol dependence as well as amphetamine abuse. It is noted that this disorder may be affecting his capacity for self-organisation.[16] The schizoaffective condition is said to have been stable and in remission as at 27 October 2023 because of prescribed medication.[17]
[16] Ibid, 114.
[17] Ex A2, “Mental Health History”.
An application was made in due course for the appointment of a guardian under the Guardianship and Administration Act 1993 (SA). A limited order was made in respect of the applicant.[18] The Public Advocate was appointed the applicant’s limited guardian so as to advocate generally for his rights, particularly in relation to all issues associated with his immigration, residency, visa status, and detention, together with those arising in connection with the hearing before me.
[18] Ex A1.
Very little appears in the documentary evidence concerning the applicant’s life history in Australia for the six years after his arrival apart from his medical history and criminal record.[19] I turn now to the criminal record. He appeared in the South Australian Magistrates Court on a number of occasions. On 12 July 2019, he was charged with estreatment of bail, which was found proven, and was required to pay $500.
[19] The criminal record appears at Ex R1, 30-31.
On 2 August 2019, he was convicted of a number of offences and was ordered to pay compensation of $1200. The offences were the possession of a bullet without a permit, unlawful possession, hindering police and damaging a building or motor vehicle. The facts are as follows in respect of these offences. On 6 April 2019, the applicant damaged a motor vehicle by smashing the windscreen with a piece of wood. He also smashed several windows and screen doors at the residence where the vehicle was parked. He resisted a police officer who was trying to arrest him. He was found in possession of three motorcycle helmets, three watches suspected of being unlawfully obtained, and a single .22 calibre bullet (without being the holder of a firearm’s licence). There was clearly some agitation and disturbance during this offending as further patrols were required to attend. A spray was also deployed before the applicant was finally arrested.[20]
[20] Ex R2, 50.
There does not appear, however, to be any further offending for some two years.
On 26 October 2022, the applicant was convicted of having indecently assaulted a person on 16 June 2021. He was convicted of this offence and received four months and seven days’ imprisonment.[21] The victim’s and a witness’s versions of events were before me and I have relied upon them.[22] The applicant was on board a houseboat. The boat pulled up near a campsite. The applicant left the houseboat and joined a group at the site. He participated in the drinking and general conviviality but became quite unsteady: the victim said the applicant was ‘really drunk’ and was ‘slurring his words’.[23] The applicant was being helped back to the houseboat and the victim was in the group helping him back. He deliberately reached out towards the victim’s chest and grabbed her breast with his hand. He was arrested on 17 October 2021, charged and then bailed.
[21] Ibid, 61ff.
[22] Ibid, 61-62.
[23] Ibid, 61.
The applicant’s final group of offences involved assaulting two police officers, setting fire to a building, and contravening a bail agreement. The sentencing remarks of the court were before me and I accept and rely on them.[24] This offending occurred in June 2022. The applicant was on bail in respect of the indecent assault charge to which I have earlier referred and which was to be dealt with on 26 October 2022. He had breached his bail by not residing at a stipulated address. He was found at another address by police, and he barricaded himself inside a house. Several officers approached the house in question. They attempted to open the door to speak with him, but he began to smash glass panels around the door. He threw heavy items at the police and struck one officer that way. He threw lengths of timber at another officer and struck him in the arm. All the while the applicant was being tasered, but without appreciable effect.
[24] Ex R1, 32ff.
The applicant then began to throw burning wood around the house, causing a fire. He continued to do this, and the fire grew. Officers of the Special Tasks and Rescue Group attended, and the applicant was ultimately subdued and taken into custody. He was detained under the Mental Health Act2009 (SA) and was under police guard until he was discharged from hospital on 15 June 2022.
The Court accepted that the applicant’s mental health provided some basis for mitigation as there was some causal connection between the offending and his mental health condition.[25] I accept that finding.
[25] Ibid, 34.
The applicant received a sentence of one year and eight days (after a 30 per cent reduction for a plea of guilty) for the offence of damaging property by fire. Two concurrent sentences of 8 months and 13 days were imposed in respect of the two assaults against the police officers in question. A non-parole period of 8 months was fixed. In respect of the charge of contravening a term or condition of a bail agreement, the applicant was convicted, but discharged without penalty having regard to the other penalties imposed. The applicant served his non-parole period and was subsequently transferred to immigration detention as his visa had been cancelled by that time. I have already indicated that s 501(3A) of the Act required the applicant’s visa to be cancelled.
REASONS
Considerations arising under the Direction
I now turn to 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. I am required to consider a number of primary considerations. The first of these is the protection of the Australian community. Paragraph 8.1(1) makes it clear that decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. 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 that they will be law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I bear that principle in mind.
Paragraph 8.1(2) requires me to give consideration to the nature and seriousness of the applicant’s conduct to date and to the risk to the Australian community should he commit further offences or engage in other serious conduct. In considering the nature and seriousness of the applicant’s criminal offending or other conduct to date, I must have regard to a number of matters set out in paragraphs (a) to (h). There is no doubt that the applicant’s offending, taken as a whole, must be regarded very seriously. Much of the offending has been violent or sexual in nature. The offending involving the damage of property comprised quite violent acts as did the assaults against the police officers. The arson attack was a prolonged episode of violent behaviour. The grabbing of the woman’s breast was both violent and sexual. I further note that some of the offending occurred while the applicant was on bail.
I need not have regard to the sentence concerning the sexual assault in accordance with the prefatory words in subparagraph (c), but I note it was a long sentence for a single offence of this type. The applicant’s behaviour must have been regarded as a serious example of its type. The other offences received long jail terms. They also mark out the seriousness of the offending. There has been quite some frequency in the applicant’s offending, and I believe there has been a trend of increasing seriousness culminating in the most recent offences. There is also a cumulative effect arising from repeated offending, and I take that into account. I also take into account that the most recent offending occurred whilst the applicant was on bail.[26]
[26] I have also taken into account the applicant’s dishonesty and property-damaging offences, and the applicant’s offence of unlawful possession of a single bullet. I have concluded that these could not constitute “tipping points” in my deliberations, and, accordingly, I shall not deal with them further.

Paragraph 8.1.2(1) requires me to bear in mind that in considering the need to protect the Australian community from harm, I should have regard to the principle 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. I bear this principle in mind.
Paragraph 8.1.2(2) states that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to several matters ‘cumulatively’. The first matter is the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct. The harm to the Australian community should the applicant repeat his misconduct is self-evidently serious. Sexual assault is a very serious matter and arson is also of great seriousness. Assaulting police officers is always a highly antisocial act. In all cases the applicant’s offending has had an unpredictable element to it. It could have led to even worse outcomes than it did. I regard the potential harm as very substantial.
I must have regard to the likelihood of the applicant engaging in that further criminal or other serious conduct. This is difficult to assess, but in my opinion it must be considered to be real and substantial. The applicant has serious mental health conditions. They are under control at the present time through medication; but the applicant has no support network in the community, and it is not difficult to imagine a situation where he would become non-compliant with prescribed medicinal regimes. A failure to take medication could well lead the applicant to engage in highly antisocial behaviours. Some of the offending has also been linked to alcohol misuse. It is clear that the applicant should not consume any alcohol or take any other stimulant given his conditions. His alcohol misuse led him, it would appear, to commit the sexual assault. If the applicant were in the community without supports, he might well revert to drinking or illicit drug use.
I believe that in my risk assessment, it is appropriate to have regard to the fact that I am concerned only with a bridging visa. A bridging visa is of its nature limited. The proceedings in this Tribunal in respect of the protection-visa application are scheduled to be heard in mid-February 2024. A decision will be reached at some point thereafter. If the applicant is granted a protection visa, the bridging visa will be superseded at that point. Equally, if the protection-visa application is rejected, the bridging visa will at some point expire after any legal processes the applicant has invoked have been exhausted. This scenario could imply, potentially, a lengthy period of time in the community under a bridging visa or visas, but not an unlimited time. It does seem to me that the degree of risk is attenuated somewhat by the fact that a bridging visa is limited by its nature and that I am not concerned with the right of the applicant to remain in the community permanently.
Nevertheless, the risk of recidivism must be said to be substantial and real for someone who has no support network in the community and who may easily find himself abusing alcohol or failing to keep to his medicinal regime.
There is no family violence for me to consider.[27] There are no best interests of minor children to consider either.[28] I regard the ‘strength, nature, and duration of ties’ consideration to be more or less irrelevant in this case.[29] The applicant has only very recently arrived in Australia and now has very few contacts.
[27] Paragraph 8.2 of the Direction.
[28] Paragraph 8.4 of the Direction.
[29] Paragraph 8.3 of the Direction.
I must also have regard to the expectations of the Australian community under paragraph 8.5 of the Direction. By paragraph 8.5(1), I note that the Australian community expects ‘as a norm’ that a non-citizen not remain in Australia where he or she has engaged in serious conduct in breach of this expectation. I am prepared to assume against the applicant that this observation extends to bridging visas although they do not give the visa holder a right to remain in Australia permanently. The applicant has engaged in serious conduct in breach of this expectation as evidenced by his criminal convictions. I do not accept that the stated expectations can be qualified in this case by reference to the applicant’s mental health conditions. First, the applicant has been convicted of various offences and so has never been held to be so unwell that he was not liable under the criminal law for his behaviour. I think the applicant has engaged, therefore, in very serious misconduct. Secondly, I am directed not to have regard to the community’s expectations in a particular case (see subparagraph (4)) but am, rather, only to have regard to the expectations as articulated in the Direction.
Moreover, I believe subparagraph (2) applies, first, because of the sexual offence and, secondly, because of the offences against the two police officers. These do give rise to serious character concerns. I note that the expectations apply regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.[30] In my opinion, the expectations consideration weighs substantially against the applicant.
[30] Paragraph 8.5(3).
I must have regard to other considerations under section 9. A non-exhaustive list of four such considerations is given. Of these four, only the consideration concerning the legal consequences of my decision is relevant. I note the delegate considered the impediments the applicant would face on being removed to Malaysia,[31] but I have concluded this is irrelevant as I am concerned with a bridging visa only. Moreover, I do not believe it is part of my task to weigh the prospects of the applicant being successful in his forthcoming proceedings in respect of his application for a protection visa. It may be that he has good grounds for protection on the basis of the poor mental health services in Malaysia and the significant stigma attached to mental illness.[32] There may also be concerns arising from the state of jails in Malaysia, and, without appropriate assistance, the applicant is likely in my opinion to commit serious offences and return to jail.[33] These are considerations, however, that I believe I should leave entirely to one side as they do not form part of my review.
[31] Ex R1, 27ff, [75]ff.
[32] See Department of Foreign Affairs and Trade, Country Information Report Malaysia, 29 June 2021 at 14, [2.26].
[33] Ibid, at 60-61, [5.19] - [5.20].
I note that the immediate consequence of affirming the decision under review would be the applicant’s continued confinement in an immigration detention centre. He might be there for some time pending the Tribunal’s decision in respect of his protection-visa application. As of my decision today, he would be there for a minimum of four more weeks if I affirmed the decision under review and for such further time as it may take the Tribunal to assess his protection-visa application and render a decision. This consideration does weigh in the applicant’s favour considerably in my opinion. I accept that the period may not appear unduly long. But I bear in mind that liberty is a fundamental human right recognised by the common law.[34]
[34] See WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463 at 494 [123].
I am concerned also by the fact that a detention centre is not an appropriate therapeutic environment for the mentally ill. I do not doubt that the staff in the centre will strive to ensure the applicant takes his medication, and the staff would also react to any episodes of mental disturbance. But the intervention of staff would be reactive only: the detention centre is not, as I have said, a therapeutic environment designed to assist the applicant to function normally and to make prosocial choices. Detention can offer a very serious imposition upon the mentally ill.
It was put to me by the respondent that the applicant would face a most uncertain future if he were released into the community. He would have nowhere to go. This is said to be a relevant factor. This submission has some force, but I would make the following points. First, I do not believe that I should reason that the applicant would be better off in detention because it is a secure environment and he requires supervision. To the contrary, I think I should give emphasis to the applicant’s right to liberty. Secondly, any force to be given to the respondent’s contention in this regard is attenuated, in my opinion, by the fact that the Public Advocate is now involved in the applicant’s case. True it is that the only order that has been made so far is one of guardianship in relation to the applicant’s legal proceedings and immigration issues. There is no general guardianship order in place. I believe, however, that the Public Advocate would not fail to respond to the ongoing difficulties this applicant would face on release into the community. If the applicant could not find appropriate accommodation, for example, that would be a matter that might lead the Public Advocate to seek an urgent order from the South Australian Civil and Administrative Tribunal for wider powers.
Weighing the considerations
I now turn to weigh the considerations I have identified. I accept the respondent’s contention that the applicant’s behaviour overall has been very antisocial and that he remains a risk to the Australian community. I accept that, generally speaking, primary considerations should be given greater weight than other considerations, but it is also the case that a strong “other” consideration may, in the circumstances of an individual case, outweigh primary considerations.
There is no doubt that the applicant’s behaviour has impacted individuals and the Australian community very significantly. There has been significant damage to property, and there have been assaults upon police officers and a further sexual assault upon a female victim. Arson can be very serious because of its unpredictable consequences in any given case, which include destruction on a wide scale.[35] There is a palpable risk of re-offending given the very poor history of alcohol and substance misuse. There is no prosocial network of family or friends in place to assist. Self-evidently, the applicant is a seriously ill man with significant mental health issues.
[35] There have been dishonesty offences as well as the unlawful possession of ammunition (albeit a single bullet).
That said, I return to the unsatisfactory situation of an unwell person being detained in a non-therapeutic environment. This places a particular burden on the applicant as a mentally ill and periodically unstable person. I take into account that the applicant has already spent some considerable time in jail ‒ since 16 June 2022, it would appear ‒ and he has spent some time also in immigration detention. I assume he entered immigration detention in October last year or thereabouts. I do not dispute, of course, that the time the applicant spent in jail was appropriate punishment; but it is nevertheless a fact that the applicant has been deprived, one way or another, of his liberty for a considerable period of time, and I must weigh any further deprivation of liberty in the detention centre against that background.
I have found this a very difficult case, but I return to the importance of liberty and to the plain fact of the matter that an immigration detention centre is not a therapeutic environment, and that it often is a special hardship for the mentally ill to be detained there. The applicant’s appreciation of his situation is limited. His capacity to maintain a balanced perspective is also impaired.
I have some confidence that the Public Advocate will move to ensure that the applicant has appropriate accommodation in the community. That falls within the Public Advocate’s remit. There are also orders that can be made under the Mental Health Act2009 (SA) that could see the applicant detained in an appropriate facility if his mental health declines. None of this can be said to eliminate risk but they constitute relevant factors in my decision-making.
All in all, having weighed the various matters required to be addressed under the Direction, I have come to the conclusion that the cancellation decision ought to be revoked. I am satisfied, therefore, that there is ‘another reason’ for the cancellation decision to be revoked (to return to the language of section 501CA(4)(b)(ii) of the Act).
FORMAL DECISION
It follows that I should set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked.
I certify that the preceding forty-seven (47)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
……[sgnd]………………………..
Associate  s
Dated: 12 February 2024
Dates of hearing:  9, 10 and 16 January 2024
Advocate for the Applicant:      Robert Lawton
Crown Solicitor’s Office (within the Public Trustee
Advocate for the Respondent:  Alex Chan
  Sparke Helmore

[2024] AATA 174

16 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Standing