FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 790

FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790 (23 March 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0233
Re:FYVY
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:23 March 2023
Date of written reasons: 18 April 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 on character grounds – substantial criminal record – Applicant owed protection obligations – whether to exercise statutory discretion to refuse visa – Direction 99 – seriousness of the applicant’s conduct – violent crime – family violence – frequent offending – cumulative effect of repeated offending – serious risk to the Australian community if applicant reoffends – childhood trauma – drug and alcohol dependence – strength, nature and duration of ties to Australia – legal consequences of decision – applicant cannot compulsorily be removed to country of origin – low likelihood that applicant will be removed to a third country – applicant has already spent five to six years in detention – prospect of continuing indefinite detention must be accorded considerable weight – WKMZ applied – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
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
18 April 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 minor amendments.
[1] These reasons contain certain standard paragraphs; in particular [7] and [30] – [33].
This is an application by ‘FYVY’, 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 a decision of the respondent’s delegate dated 3 January 2023. By this decision, the delegate exercised the power in section 501(1) of the Migration Act, 1958 (Cth) (‘the Act’) and declined to grant the applicant a Protection Class XA visa.
The delegate first found that the applicant had a ’substantial criminal record’ and that he did not satisfy the so-called ‘character test’ under section 501(6) of the Act. The applicant’s failure to satisfy the character test enlivened the delegate’s discretion under section 501(1).
In considering whether to exercise the discretion in section 501(1) of the Act, the delegate was obliged to apply any direction issued under section 499. The delegate applied Direction no. 90, then in force. The delegate weighed the various considerations required to be addressed under Direction no. 90 and decided that, on balance, the discretion to refuse the applicant a visa ought to be exercised.
TRIBUNAL’S TASK
The applicant sought a review of the delegate’s decision in this Tribunal. It was conceded by the applicant that he does not satisfy the character test and that the only question of substance concerns the exercise of the discretion in section 501(1). I agree with that concession.
Hearing the matter afresh on the evidence adduced before it, the Tribunal, like the delegate, must apply any direction issued under section 499 of the Act. On 3 March 2023, Direction no. 90 was revoked and superseded by Direction no. 99.[2] I have proceeded to apply Direction no. 99 as part of my review. I note that neither party submitted that I should apply Direction no. 90.
[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). See section 2 for the commencement date.
I note that in pursuing its review function in these matters, the Tribunal proceeds de novo. The Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[3] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review, notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons, 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, Mr Barron represented the applicant; Mr Burke, the respondent. I acknowledge their assistance.
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 gave evidence before me. I accept that he was born in Sudan at some point in 1988.[4] In 2003, when he was approximately 14 years of age, he emigrated to Australia as the holder of a Global Special Humanitarian (subclass 202) visa. He first lived in Sydney with his older brother. Before his departure for Australia, the applicant had experienced the civil war in Sudan, and it had taken a very heavy toll upon him. The applicant apparently lost his father there when he was approximately six years of age. I do not doubt that he has had extreme experiences in Sudan. There is a statement, for example, that he witnessed his father being shot and decapitated.[5] The applicant ended up being separated from his family and had to survive earning what money he could.[6] There is a reference also to government forces trying to force him into the life of a child soldier.[7] It would appear that he eventually escaped Sudan for Egypt and spent some two years there with his older brother before coming to Australia. All in all, I do not doubt that the applicant suffered extreme hardship in Sudan, and I do not doubt that his transition in Australia proved very difficult. Specifically, I accept that he struggled in school due to a lack of English and to a lack of prior schooling in Sudan.
[4] His birth date of 1 January appears to have been assigned as a matter of convenience only.
[5] Exhibit R1, 197. This fact appears to be contradicted in certain sentencing remarks (Exhibit R1, 55) but I have assumed an error in the remarks. In any event, the sentencing remarks refer (at p 56) to the applicant’s ordeals that “are beyond the comprehension of people who live in a civilised nation such as our own”.
[6] Ibid.
[7] Ibid.
I accept that applicant began drinking at some point after his arrival in Australia. Alcohol featured regularly in his life thereafter. Specifically, I accept the applicant’s statement that he began to drink not long after his arrival in Australia and that he became addicted to alcohol quickly.[8] I do not doubt that at least part of the reason for the applicant’s drinking was ‘to block the bad memories of what had happened to [him] as a kid’.[9] I accept also that alcohol had a substantially adverse effect upon him, and it led him to make very poor behavioural choices. A pattern of offending soon emerged.
[8] Ibid.
[9] Ibid.
The applicant’s criminal record was before me.[10]The offending began not long after the applicant’s arrival in Australia. His first court appearance took place on 6 August 2004 before the Cobham Children’s Court. The charge related to an assault, and the result was a bond and supervision by the Department for Juvenile Justice.
[10] Exhibit R1, 40ff.
In 2005, the applicant appeared on no fewer than four occasions before various courts. There are some antisocial offences involving driving without holding a licence and stating a false name or address to police. There are also offences involving possession of a knife in a public place, possession of prohibited drugs and equipment for administering drugs, and offences involving breaking and entering as well as aggravated assault with intention to rob and inflicting actual bodily harm, together with robbery while armed and causing wounding.
These offences are very serious. I have closely considered the sentencing remarks of the Sydney District Court delivered on 14 October 2005, which concerned some of the offending.[11] They are informative. They refer to the misuse of marijuana (starting in Sudan), the occasional use of ecstasy in Australia and the abuse of alcohol, to which I have already referred.[12]
[11] Exhibit R1, 45ff.
[12] Exhibit R1, 61.
The offending to which the sentencing Court refers in its remarks is marked by violence and intimidation, including against a woman. It involved serious assaults, including stabbing, and threats of violence. There is a detailed reference to the applicant’s background and need for rehabilitation at that stage of his life. I accept that at the time of the commission of these offences the applicant was a minor, although the Court dealt with him as if he were an adult pursuant to certain statutory discretions referred to in the remarks. The Court did refer, however, to the ‘considerable immaturity of the offender in many ways’[13] and this was relevant to the sentencing process undertaken by the Court.
[13] Exhibit R1, 68.
It is important to note that the Court imposed sentences of 18 months each in relation to the offences subject to the remarks, but proceeded to suspend them in the event.
I note that both offences were called up on 11 May 2006, and a non-parole period of six months was fixed. It would appear that the applicant was released from prison shortly thereafter as he had been taken into custody almost six months earlier.
There is a reference in the applicant’s criminal record to robbery (against the entry dated 15 May 2006) as well as to shoplifting (against the entry on 16 August 2006). Again the applicant was found to have had custody of an offensive implement in a public place on 20 December 2006 and received a bond. On 26 November 2007, the applicant was found guilty of an assault occasioning actual bodily harm and was imprisoned for six months. On the same day there was a call-up of the offence involving custody of an offensive implement in a public place and this resulted in six months’ imprisonment. The record shows that these sentences were altered in a minor way only on appeal.
The sole conviction in 2008 is a failure to hold a valid ticket for train travel. On 26 November 2009 the applicant was convicted of possession of a prohibited drug and aggravated robbery. The offence of aggravated robbery was the subject of sentencing remarks before me.[14] I have considered the remarks carefully. Again, the offending involved robbery, and intimidation and violence directed to a member of the public. It is clear that at this stage the applicant, who was only 20 or 21 at the time, had accumulated a considerable criminal history. A head sentence of three years’ imprisonment was imposed with a non-parole period of 20 months.
[14] Exhibit R1, 84ff.
In 2010 there are only minor offences relating to fare evasion. In 2011 there is only one offence (namely, the custody of a knife in a public place), which resulted in one month’s imprisonment.
In 2012, there are a large number of offences, but they are in the main minor when compared to the other offending. I note them but I need not set them out. I do note, however, a common assault which led to eight weeks’ imprisonment. I observe further that there are a number of charges referred to in the record where the applicant failed to appear. This led to a warrant being issued out of the Brisbane Magistrates Court for his arrest but the final disposition of the charges is not given in the applicant’s record.
On 19 September 2013 the applicant was sentenced for demanding property with menaces and this resulted in a two-year bond. On 12 December 2013 the applicant was convicted of being armed with intent to commit an indictable offence.[15] This involved the applicant using a Stanley knife to threaten a member of the public although the court found that the blade had been retracted. A sentence of nine months in prison was imposed.
[15] The transcript of the sentencing remarks appears at Exhibit R1, 95ff.
On 28 August 2015 the applicant was sentenced to an aggregate term of 95 days’ imprisonment to be served concurrently with another aggregate term of imprisonment of the same length for two offences. The first offence involved dealing with suspected proceeds of crime, and the second involved contravention of a family violence safety notice. This latter offence involved an unlawful assault upon his then partner and mother of his son. The applicant had punched her to the head several times causing a laceration above her right eye.
On 29 September 2015 the applicant was found guilty of the unlawful possession of a pen pistol, a prohibited firearm, and of committing robbery as well as causing criminal damage. These were serious offences and resulted in terms of imprisonment of six months and 11 months respectively, to be served cumulatively.
On 2 February 2017 there was a call-up of an earlier offence and this resulted in a term of imprisonment of some nine months which concluded, however, on the day of sentencing.
I now turn to refer briefly to the applicant’s visa history in Australia. The visa history is summarised succinctly in the respondent’s Statement of Facts Issues and Contentions (‘SOFIC’).[16] I shall not recapitulate this history but it discloses quite significant time frames in the taking of various administrative decisions in the applicant’s case. As matters presently stand, it appears that the applicant has, as at the date of my decision, spent approximately six years in immigration detention (or possibly five and a half). Either way, the time spent in detention is very considerable. I note that whilst the applicant’s applications for a protection visa have been unsuccessful, he has been found by a delegate to engage Australia’s protection obligations. This prevents his forcible removal to South Sudan.[17]
[16] Exhibit R3, [6]ff.
[17] Exhibit A1, 71ff.
So far as his conduct in immigration detention is concerned, I accept the respondent’s submission that there have been a number of instances where the applicant has been involved in violence. There have been occasions as well where the applicant has been involved in the consumption of alcoholic homebrew or the misuse of prescription drugs, both of which are readily available in immigration detention. I do not need to set these instances out but I have had regard to them.
RE-EXERCISE OF THE DISCRETION
I turn now to apply Direction no. 99 (‘the Direction’). In the past, I have often referred to certain prefatory remarks I made in the matter of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at paragraphs [32]ff. The Direction is now different to some degree, and I have recast the paragraphs as follows.
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).
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.
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.
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 turn now to consider the primary considerations. The first of these is the protection of the community from criminal or other serious conduct. When considering the protection of the Australian community, I am required by paragraph 8.1(1) to bear in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct 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 are and have been law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community. I bear this principle in mind.

By subparagraph (2), I must give consideration to the nature and seriousness of the applicant’s conduct to date and 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 conduct, I am to have regard to a number of matters which are set out in subparagraphs (a) to (h) of paragraph 8.1.1(1). I note specifically that violent crimes, crimes against women, and acts of family violence (whether or not there is a conviction for an offence or a sentence imposed) are all to be regarded very seriously. I do so. The applicant has been involved in multiple instances of violence. His height makes him particularly intimidating. He has offended against women, including a domestic partner.
I do not accept the applicant’s contention that I should proceed on the assumption that only one instance of family violence has occurred. There may be only one conviction but it is very likely that there was a strong level of discord between the couple. On the evidence before me, the applicant abused alcohol and cannabis regularly and was frequently violent in public (when other community members were present). It would be highly surprising if his violence did not extend to a private domestic setting. I note that the recorded conviction concerned events shortly after the birth of his child, where the utmost restraint needed to be shown but was not. In these circumstances, whilst I cannot, in the absence of evidence, attribute any specific range of violence to the applicant, I believe I should act on the basis that the one recorded conviction involving family violence was neither isolated nor untypical.
I note that the crimes the applicant has committed in the community have extended to the use of weapons against a woman and the use of intimidation and physical force against unsuspecting members of the public. There have been a great many instances of violence. I regard this conduct as very serious indeed. More generally, I accept what appears in the respondent’s SOFIC concerning the applicant’s offending.
I add that I regard break-and-enters and theft generally as very serious offences, noting that the instances of very serious offending given in the Direction do not limit the category. People are entitled to their possessions and, in particular, are entitled to the safe and undisturbed enjoyment of their homes. The intrusion of criminals disturbs the occupants’ sense of safety and hampers their ability to enjoy community life confidently. It is far more than a minor matter to be forcibly deprived of property at the hands of criminals.
I regard the applicant’s drug use as reprehensible. It resulted in the applicant’s disinhibition and contributed to his poor mental state and lack of self-awareness. Moreover, although the applicant was not a dealer, his participation in the drug trade as a consumer was in itself strongly antisocial as the purchase of illicit drugs assists in their further distribution in the community.
The applicant’s driving of cars while not licensed to do so was very serious, and I note that on one occasion the applicant collided with a stop sign before decamping on foot. That sort of reckless behaviour exposes the community to the threat of serious injury.
I am required to have regard to the sentences imposed by the courts, with the exception of sentences concerning crimes against women and acts of family violence, which are always to be regarded very seriously. I do so.
There has been a great frequency in offending from a very early stage. There have been many bonds broken, and the crimes have displayed, in my opinion, a trend of increasing seriousness because they have constituted consistently defiant and antisocial behaviour, despite many cautions and multiple suspended sentences. It is quite clear that the applicant’s offending was linked to his abuse of alcohol and other drugs. His ability to think clearly and make appropriate prosocial choices was substantially affected by his alcohol dependence and illicit drug abuse; but I do note that some at least of the offending must have occurred when the applicant was not immediately under the influence of alcohol or drugs.
All in all, the applicant’s offending can be accurately described as lengthy, persistent and undeterred. There is a cumulative effect of repeated offending which I must take into account, and I do so.
I also note that the applicant has offended despite formal departmental warnings given to him that his visa status was at risk. That is a serious matter. The applicant knew, or ought to have appreciated, that his behaviour had led him to a situation where he faced removal from the Australian community because of his strongly antisocial conduct. He did not heed those warnings.
I must have regard to the risk to the Australian community should the applicant commit further offences. By paragraph 8.1.2(1) of the Direction, I am to 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 repetition may be unacceptable. I acknowledge this principle.
In assessing risk, I am to have regard, cumulatively, to the matters set out in paragraphs (a), (b) and (c) of paragraph 8.1.2 (2). Paragraph (a) requires me to consider the risk that would be posed by the applicant to the Australian community on the assumption that he engages in further criminal or other serious conduct. That harm is extremely serious. For example, the applicant has stabbed a man in order to rob him. He has also stabbed a woman in order to rob her. He has punched and kicked victims in order to extort money from them. These are extremely serious instances of violence. On all occasions, the applicant had made a prior choice to arm himself. I accept the respondent’s observation that the possession of the pen pistol was not as serious as might otherwise appear, since it was not necessarily a weapon that could be fired with lethal effect (although it must have been intimidating when brandished); but be that as it may, it must be said that the applicant has shown himself willing to inflict serious harm on innocent members of the community. I do not accept the applicant’s evidence that he merely panicked in these situations. In my opinion, that explanation ignores the fact that the applicant chose to arm himself before committing the crimes. He resorted to weapons either to extricate himself from a difficult situation or to prosecute further his unlawful intention to extort property from others. He is fully responsible for his use of weapons and for all the violence inflicted on his victims.
The applicant is no longer in a domestic relationship. However, a future domestic partner would also be at risk from the applicant on the assumption that he repeats past conduct. I have already found that the applicant’s violence towards his domestic partner was neither untypical of the violence in which he had engaged nor an isolated act.
I must have regard to the likelihood of the applicant engaging in further criminal or other serious conduct. I must take into account information and evidence concerning his risk of reoffending and any evidence of rehabilitation achieved by the time of my decision. The applicant led evidence from Dr Dombrowski, a forensic psychologist.[18] Her opinion was that the applicant currently poses a high level of risk.[19] The respondent agreed with that assessment.
[18] Exhibit A2, 2ff.
[19] Ibid, 24 [39].
I must take Dr Dombrowski’s assessment into account and I do so. For my own part, however, I doubt strongly that the applicant poses a high risk of reoffending at this stage of his life. I say this because of the very important features concerning the applicant’s rehabilitation to date. In the case of this particular applicant, immigration detention has been beneficial to the extent that it has given him an extended period during which he has been able to reflect more clearly and maturely on his life. With the help of his mentor, Ms Sykes, he has begun to understand better the wrongfulness of his conduct and his need for assistance.
I do note specifically that that the applicant did not fully admit to me the extent of his offending. Accordingly, I do not give him credit for a full appreciation of the moral wrongness of his actions vis-à-vis his victims. I accept that there is always a pressure on applicants to seek to downplay their offending in order to achieve what they hope to achieve from the Tribunal; namely, a setting aside of the decision under review. That pressure is in one sense understandable. Nevertheless, I cannot give an applicant credit for moral insight where the evidence does not persuade me that he or she is being fully frank with me.
I do believe, however, that the applicant now appreciates that his conduct has been substantially influenced by alcohol and drug dependence and the resultant need to obtain money. He has also made an appropriate link between his misuse of substances and his earlier experiences in Sudan. He has acknowledged the need to change and to improve his mental outlook. He accepted frankly that he has on occasion used homebrew in immigration detention and has otherwise behaved poorly. He accepts his need for engagement with intervention authorities. These aspects of his evidence were to my mind persuasive. The applicant’s evidence reflected a developing insight into his problems on which future progress might be built.
I note that there is a plan in place if the applicant is released into the community. This will involve the applicant residing with his brother and sister-in-law and their children, with another brother and his mother visiting him. The accommodation is appropriate, and importantly, it will provide a stable family setting. It is offered through the generosity of Ms Sykes, a mature woman, who has commendably devoted a considerable amount of her time and also her financial resources to assisting this family. It would also appear that there will be an immediate job opportunity for the applicant. This will be particularly important. The applicant will also be enrolled in various programs designed to address his problems including alcohol abuse. He has shown a willingness to engage meaningfully in programs run by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors and is keen to reengage with this organisation. I accept the contents of Ms Sykes’ statutory declaration.[20]
[20] Exhibit A1, 68ff.
I believe also that there has been an extremely strong deterrent effect offered by the five to six years of immigration detention. Self-evidently, this is an extremely long period of time. The applicant understands that he has found himself, rightly or wrongly, enmeshed, so to speak, in what may well have appeared to him to be a diabolical struggle, where in his own mind he has had to fight every inch of the way to remain in Australia, and has had to do so from the confines of immigration detention over many years. He could hardly believe that he would face any better situation were he to reoffend and find his visa cancelled. That is a particularly daunting deterrent.
My understanding of Dr Dombrowski’s report and her oral evidence is that her assessment of risk did not explicitly weigh this deterrent effect as a primary factor informing her assessment of the level of risk. I certainly accept that she approached her risk assessment in a professional way and applied correctly the various assessment tools commonly used by those practising in her area of expertise. I believe, however, that the deterrent effect of any future lengthy period of detention would weigh very heavily on this particular applicant. It could hardly do otherwise. I think the deterrent effect is considerable and needs to be accorded some considerable weight.
Accordingly, I do not believe that the risk of recidivism this applicant poses is high. Nevertheless, I am prepared to proceed on the assumption that it is in fact high. I am able to decide this case in the applicant’s favour on this assumption, and I shall proceed on it.
The consideration in paragraph (c) of paragraph 8.1.2(2) of the Direction does not apply.
Paragraph 8.2 requires me to give separate consideration to family violence committed by the applicant. I have had regard to what appears in subparagraph (1) of this paragraph; namely, the Government has serious concerns about conferring the privilege of remaining in Australia on non-citizens who engage in family violence.
This concern is said to be proportionate to the violence. I accept that there has been a frequency in the violence. As I have said, I have no direct evidence of the range of instances, but I have proceeded on the basis that the violence that was the subject of the recorded conviction was not the only instance. I note that I was taken to what appears to be an address by a police prosecutor on a bail application where the alleged detail of other instances are referred to and canvassed.[21] All in all, I proceed on the basis that the family violence in this case has involved repeated punching, occasioning real harm, accompanied by serious threats. The violence has been inflicted on a woman by her tall and strong male partner. I cannot say that there has been a trend of increasing seriousness as such, but I have already said that the charged criminal conduct was neither isolated nor untypical. Such offending would clearly have had a cumulative effect upon the victim and I take that into account.
[21] Exhibit R2, 5-6.
I do not think the applicant has yet developed real insight into the impact of his behaviour on the victim. There have only been limited efforts to address the factors that contributed to his conduct, which stem largely from alcohol other drug misuse. I do not believe that the applicant demonstrated sufficient responsibility for his conduct in his evidence to me.
I must also have regard to the strength, nature, and duration of the applicant’s ties to Australia: see paragraph 8.3. I accept that a decision to affirm the decision under review would have a substantial effect on the applicant’s mother. That is an important relationship, and I believe she would be affected by his continued detention in immigration detention or his removal to a third country (which I note is an unlikely option according to the delegate whose decision I am reviewing).[22] I accept that the applicant has relatively good ties with his two brothers, but I must also accept that these relationships have undoubtedly been strained over many years because the applicant has chosen a life of crime and alienation from his family. I attach less weight to the fraternal relationships. I accept that the applicant has an interest in developing a relationship with his own child, ‘J’. That relationship is virtually non-existent at the present time as the applicant was jailed shortly after J’s birth and then entered immigration detention after jail.
[22] Exhibit R1, 34 [109].
Under paragraph 8.4, I must consider the best interests of minor children in Australia. J’s interests were accorded substantial weight by the delegate. I accept fully that J would benefit substantially from a fully functioning relationship with the applicant, provided the applicant remained sober and law-abiding. J presently lives with his mother’s parents, who have custody of him. The evidence suggests that J’s mother does not have day-to-day care of the child. J would benefit from positive contact with his biological father.
I would discount, however, the weight to be given to this factor given what I have assumed to be the applicant’s high risk of reoffending. If I assume that there is a high risk of reoffending, I must also assume that the child would be at substantial risk of being exposed to further dysfunction in the family’s life (although I fully accept that his grandparents will no doubt be very vigilant to protect J from any direct exposure to antisocial behaviour). I take into account the fact that J is presently being looked after by responsible adults who are related to him and who fulfil an important quasi-parental role. All in all, I believe this consideration should count neutrally in my assessment.
Under paragraph 8.5, I must consider the expectations of the Australian community. Subparagraph (1) indicates that the Australian community expects non-citizens to obey Australian laws. The Australian community as a norm ‒ although not as inflexible rule ‒expects the Government to refuse to allow non-citizens to remain in Australia where they have engaged in serious conduct in breach of the expectation or where there is an unacceptable risk of their so doing. Subparagraph (2) directs my attention to character concerns, and in particular serious character concerns are taken to arise from acts of family violence and serious crimes against women. These are crimes in which the applicant has engaged. The expectations of the Australian community as outlined in paragraph 8.5 apply whether or not the applicant poses a measurable risk of causing physical harm to the Australian community. I am to proceed on the basis of the Government’s views as articulated in paragraph 8.5 without independently assessing the community’s expectations in an individual case. This consideration clearly counts against the applicant.
I must also have regard to so-called ‘other’ considerations under section 9 of the Direction. A non-exhaustive list of four such considerations is given. The principal consideration that arises in this case concerns the ongoing detention of the applicant. Section 9 addresses specifically the very consequence that the delegate’s decision in this case entails; namely, that the applicant, being a person in relation to whom a protection finding has been made, may not be compulsorily removed to South Sudan. Realistically, there are only two possibilities that would see the applicant’s detention end. First, a third country willing to take the applicant may be found. I note that the delegate explicitly acknowledged that the prospects of finding another country willing to take the applicant were poor.[23] This conclusion accords with what I would see as the common sense of the situation; namely, that a third country willing to take a high-risk and antisocial offender with a lengthy criminal record will be difficult to find. The second option involves the exercise by the Minister of personal and non-compellable powers (e.g., under section 195A of the Act) to allow the applicant to remain in Australia.
[23] Exhibit R1, 34 [109].
In the respondent’s SOFIC, it is said that the respondent accepts that the administrative steps and enquiries to be undertaken in effecting the executive’s policy may take a long time and may not have any clear outcome.[24] No information was put before me as to the maximum length of further detention the applicant would face if I were to affirm the decision under review. For example, I was not provided with an assurance that if a third country willing to take the applicant had not been found by such and such a date, the respondent would then propose to grant the applicant a visa pursuant to the respondent’s personal and non-compellable powers under the Act. That information would have been helpful to me in weighing this consideration and in assessing its likely import.
[24] Exhibit R3, 13 [65].
On the evidence before me, I believe I should proceed on the basis that the likelihood of the applicant being granted a visa in the short term is low and that the likelihood of his being removed to a third country in the short term is also low (as found by the delegate). This means that I am faced with the situation where an applicant, who has already spent some five to six years in detention, will face a further indeterminate period in detention if I affirm the decision under review.

That is a powerful consideration for me to weigh in the applicant’s favour. I was referred by both parties to the full Federal Court’s decision in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463 (‘WKMZ’). The plurality’s reasons emphasise, if any emphasis were needed, the importance the common law attaches to liberty as one of our society’s most fundamental human rights.[25] It seems to me that it is largely irrelevant to inquire where the fault, if any, lies in respect of the prolonged detention to date of this applicant. As matters presently stand, it is accepted that the applicant is owed protection obligations by Australia and that his compulsory removal to Sudan would be improper. It is unfortunate that it has taken six years for this situation to be reached.
[25] See plurality’s reasons at [123].
Without attributing any fault, it can be said that the respondent’s department ought to have appreciated the urgency of finalising the applicant’s case from 27 May 2021 onwards because at that time (namely, after the Tribunal’s decision finding the applicant was not disentitled to a protection visa by virtue of section 36(1C) of the Act), it was clear that the applicant fulfilled the criteria for the grant of a protection visa (subject to its refusal on discretionary grounds). Moreover, better administrative practice would have ensured that the Tribunal in this matter was informed of the steps proposed for this applicant and the proposed timelines for progressing his departure from immigration detention (one way or another) should the Tribunal affirm the decision under review (as indeed it was being asked to do by the respondent).
As matters presently stand, it appears that if I affirmed the decision under review, the applicant would face a further prolonged period in detention while administrative processes evolved, perhaps slowly. He cannot be compulsorily removed to his country of origin. I should say that I would not impute to the respondent an intention to leave the applicant in detention on a quasi-permanent basis as this would imply a wholly unreasonable and inhumane intention. But it remains a fact that the most likely scenario in this case is a prolonged period of further immigration detention if I affirmed the decision under review. This consideration counts very substantially in the applicant’s favour.
WEIGHING THE CONSIDERATIONS
I turn now to weighing the considerations I have identified. I am conscious of the direction in paragraph 7(2) that primary considerations should generally be given greater weight than the other considerations. I am also conscious of the fact that most primary considerations in this case do not favour a decision to set aside the decision under review. That is a serious matter to weigh up.
It is also true, however, that a consideration or considerations arising under section 9 may outweigh primary considerations in an appropriate case. I would refer here to an authority on an earlier direction: FHHM v Minister for Immigration, Citizenship will, Migrant Services and Multicultural Affairs [2022] FCAFC 19. Very much will depend on how important that other consideration is in the particular circumstances required to be assessed. I must give very careful consideration to the prospect of indefinite detention, using that term in the same way that the plurality did in WKMZ. The plurality did not say that indefinite detention (in the sense of prolonged detention without an ascertainable end date) would automatically lead to a setting aside of a decision under review. I acknowledge that. But it remains a very important factor to weigh up as one of the legal consequences of the decision-maker’s or Tribunal’s decision. The striking factors here, of course, are the length that the applicant has already spent in detention and the fact that I am unable to ascertain clearly when that detention will end (one way or another) if I affirm the decision under review. I return again to the fundamental importance of liberty in the legal regulation of our society. I accept that this applicant has very strong antisocial tendencies, and I accept further that on the assumption I have made, there is a high risk of his reoffending. I am very cognisant of that. I am cognisant also of the emphasis that the Direction places on protection of the Australian community. The Direction deals specifically with cases of family violence. There is no doubt that the applicant has displayed very strongly antisocial tendencies on a wide variety of fronts that have caused great harm in the community.
That is undoubtedly true, as I say. It remains the case, however, that the applicant’s detention has already been prolonged and that at the present time there is no time-limited plan in place to bring the detention to an end (or at least none that has been advised to the Tribunal). This has left the Tribunal to grapple with the likelihood of further indefinite detention (although not detention on a quasi-permanent basis for the reasons I have earlier given). This is a case where, in my opinion, it is appropriate to give very substantial weight to the applicant’s liberty in the circumstances.
FINAL CONCLUSION AND FORMAL DECISION
Weighing all considerations, I have decided, on balance, that the correct or preferable decision on the evidence before me is not to exercise the discretion to refuse the applicant a protection visa under section 501(1) of the Act. Accordingly, I shall set aside the decision under review and substitute a decision to this effect.
I certify that the preceding seventy-four (74)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
……[sgnd]……………..
Associate
Dated: 18 April 2023
Date of hearing:  16 & 21 March 2023
Advocate for the Applicant:      Nikolas Barron,
Svenson Chambers
Advocate for the Respondent:  Cormac Burke,
Sparke Helmore