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

[2022] AATA 3347

QDST and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3347 (13 September 2022)

Division:GENERAL DIVISION

File Number(s):      2022/5280

Re:QDST

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:13 September 2022

Date of written reasons:        13 October 2022

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 visa be revoked.

..................[sgnd]......................................................

Senior Member Dr N A Manetta

MIGRATION –  cancellation of applicant’s bridging visa – applicant does not pass character test – primary considerations weigh against applicant – serious offending – low to medium risk of reoffending – Tribunal not tasked with assessing risk to Australia of applicant’s presence on an ongoing basis – relevance of bridging visa – relevance of ongoing detention – Federal Court decision of WKMZ considered –  decision under review set aside

Legislation

Migration Act 1958 (Cth)

Cases

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; 285 FCR 463

Secondary Materials

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member Dr N A Manetta

13 October 2022

1. After I delivered my oral reasons, I received a request for written reasons, which I now publish.  These are the reasons I read out to the parties, with minor amendments.

2. This is an application by QDST, a person whose name has been anonymised in the interests of confidentiality and to whom I shall refer as “the applicant” in these reasons.  The applicant seeks a review of a decision of the respondent’s delegate dated 21 June 2022. By this decision, the delegate declined to revoke the cancellation of the applicant’s bridging visa[1], which had been issued under the Migration Act 1958 (Cth) (“the Act”). The first decision-maker cancelled the visa because the applicant had been convicted of a sexually based offence involving a child. Furthermore, the applicant was serving the sentence he received for that offence on a full-time basis in gaol at the time of the cancellation: see the conditions for a mandatory cancellation in section 501(3A)(a)(ii) and (b).

   [1] A Class WE Subclass 050 Bridging (General) Visa.

3. The applicant made a timely application for a review of the cancellation decision. The delegate tasked with that internal review was required to address two questions under section 501CA(4)(b) of the Act. First, the delegate was required to decide whether the applicant passed the so-called “character test” as defined in section 501(6) of the Act. If the answer to this first question was “no”, the delegate had then to decide whether there was “another reason” warranting the revocation of the cancellation decision. In addressing the second of these two questions, the delegate was required to apply Direction no 90 issued under section 499 of the Act[2].  The delegate found that the applicant did not pass the character test and further decided that there was no other reason for the cancellation decision to be revoked[3].

   [2] Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

   [3] See Exhibit R1, pp 12ff.

   TRIBUNAL’S TASK

4. Hearing the matter afresh on the evidence adduced before me, I must address the same two questions.  In respect of the second question, I, too, must apply Direction no 90. I note that the Tribunal proceeds de novo in these matters, to use the Latin expression; that is, it hears evidence and receives documents, draws its own inferences, and makes its own final conclusions of fact.  Its task extends beyond reviewing the decision under review for error: indeed, it differs substantially. This implies that I 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 me; equally, I 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.

5. At the hearing before me, the applicant represented himself and gave evidence through an interpreter; Ms Wong represented the respondent.

   STATEMENT OF CONCLUSION

6. I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked.

   BACKGROUND FACTS

7. I now turn to set out the background facts and the reasons for my conclusion.

8. The applicant was born in Sri Lanka in 1993. He was 29 years old at the time of the hearing before me. Members of his family continue to live in Sri Lanka and work the land there. The applicant is of Tamil ethnicity. He travelled to Australia by boat and landed here on 23 April 2013, but he did not have a visa permitting his entry. 

9. He applied for a protection visa from the Australian authorities on arrival. He was granted a bridging visa in connection with that application.  The applicant’s protection-visa application was rejected by a delegate of the Minister on 21 November 2016.  The applicant then sought a review of that adverse decision before the Immigration Assessment Authority. The Authority reached a further adverse decision against the applicant on 19 July 2017.  I do not need to set out the grounds the applicant advanced in support of his protection-visa application; but I note they are summarised in the Protection Visa Decision Record and, on review, the Immigration Assessment Authority’s decision.  Both these decisions were in evidence before me[4]. 

   [4] Exhibit R1, pages 62ff and 77ff, respectively.

10. The applicant then sought a review of the Immigration Assessment Authority’s decision in the Federal Circuit and Family Court of Australia.  The Court rejected the review application on 19 November 2021[5].  An appeal against that Court’s decision was brought by the applicant to a single judge of the Federal Court, but the appeal was unsuccessful.  It was formally dismissed on 11 August 2022[6].   I accept the applicant’s evidence that he has given instructions to appeal the single judge’s decision to the full Federal Court.

    [5] See Exhibit R2, pp 203ff.

    [6] Ibid, at pp 306ff.

11. The applicant has held a bridging visa while the various administrative and legal processes governing his application for a protection visa progressed.  The bridging visa permitted him to reside in the community, but on a temporary basis only.  Most recently, as I understand matters, the applicant was granted a bridging visa on 18 August 2017[7], which, prior to its cancellation, permitted him to reside in the community pending his judicial review application in respect of the Immigration Assessment Authority’s decision.  It is the cancellation of this bridging visa that is in issue before me.

    [7] See the letter in Exhibit R1, p 109.

12. The applicant has committed a number of offences in Australia.  I now turn to that record. It is set out in some detail in the respondent’s Statement of Facts Issues and Contentions[8].  It is sufficient for me to confine myself to a summary only.

    [8] Exhibit R3.

13. On 16 March 2017, the applicant operated a vehicle dangerously and was found guilty of this offence on 24 May 2017 in the Toowoomba Magistrates Court. No conviction was recorded on that occasion but a fine of $600 was imposed. It is not a matter that tips the balance in my assessment, and I need not refer to it further at this point.

14. On 29 January 2020, the applicant was found guilty of common assault.   He was fined $1,500 on this occasion. There was a further assault on 18 March 2020 when the applicant was sentenced to a 12-month community correction order with supervision[9].

    [9] I note the applicant was charged in respect of certain alleged violence at a brothel.  The conduct alleged against him is described in the respondent’s Statement of Facts Issues and Contentions (Exhibit R3) at [10] and is further elaborated in the Police Facts Sheet appearing in Exhibit R2 at pp 7ff.  When I delivered my oral reasons, I had assumed that one of these two convictions concerned this alleged behaviour, but my associate subsequently received an email from the respondent noting that an offence of common assault had merely been charged in respect of the alleged behaviour: there was no conviction.  Nevertheless, when I made my decision and delivered my oral reasons, I had assumed one of these two convictions related to the alleged behaviour at the brothel.   If I am wrong in my assumption, I note that it is an error that apparently favours the respondent as the behaviour alleged at the brothel was violent and egregious.   

15. On 10 August 2020 the applicant further assaulted a person in charge of certain residential premises where the applicant had earlier been living. I shall refer to the victim as “the landlord”.  That matter was dealt with in the local Court of New South Wales in Parramatta on 29 June 2021 only.  The applicant was sentenced on that day to an aggregate term of imprisonment of 22 months with a non-parole period of 11 months. He had been in the company of another person and had assaulted the landlord while the latter slept.  He had also stolen a necklace from the landlord and destroyed or damaged the landlord’s property.

16. I had before me the remarks on appeal[10] in the District Court of New South Wales. I adopt them for the purposes of my review.  It is clear that the landlord was assaulted severely as detailed in the remarks. I note in particular that the assault occurred while the applicant was on conditional liberty in three different ways as specified by the Court[11].

    [10] Exhibit R1, pp 35ff.  The applicant had brought an appeal against the sentence on the grounds of severity.

    [11] Ibid, at p 39.

17. The Court observed that the applicant had been exposed to a level of violence in Sri Lanka that “made him subject to the identified features of mental health, disruption and PTSD, anxiety and depression and at times suicidal ideation”[12]. The Court was prepared to find, on balance, that there were mental-health issues that required treatment[13]. The Court also specifically found that the applicant’s “alcohol use appeared to be his significant criminogenic issue”[14]. 

    [12] Ibid, at pp 39-40.

    [13] Ibid, at p 40.

    [14] Ibid.

18. The trial Court had sentenced the applicant to a period of imprisonment of 22 months with a non-parole period of 11 months, and on appeal the District Court found this sentence generous to the applicant: it would have imposed a more severe sentence[15].

    [15] Ibid, at p 42.

19. Returning to the applicant’s criminal record, I note that on 11 November 2020, the applicant  was found guilty of sexually touching a 15-year-old female child on 19 April 2020. This offending occurred while the applicant was on conditional release. Again, the remarks on appeal were before me[16].

    [16] Ibid, at pp 43ff.

20. The applicant was on a bus at about 9:15 pm. He was apparently alone on that bus with the 15-year-old girl. He struck up a conversation with her and moved to sit directly next to her. He made advances towards her which she rejected, and she informed him she was only 15 when he offered her alcohol. The applicant then placed his arm around her shoulder and he touched her upper chest area in close proximity to her right breast over approximately three minutes. He also placed his left hand on her thigh in close proximity to her private parts although he did not actually touch them. He kissed her twice without consent. On the agreed facts that were before the court on sentencing, the applicant was intoxicated.

21. The applicant was re-sentenced on appeal to a term of imprisonment of eight months with a non-parole period of four months. That resentencing occurred on 30 November 2020.  The initial sentence had been 15 months, but this was found on appeal to be manifestly excessive.

22. The final factual matter to which I would refer is the applicant’s application for an internal review of the mandatory cancellation decision.  This application was made on 30 December 2020.  I note that the applicant was released from gaol and immediately transferred to immigration detention in August or September of 2021.  The delegate’s decision was only finalised in June 2022. There has been, therefore, a considerable period of time in which the applicant has been detained in immigration detention, with no opportunity to seek a review in this Tribunal before the delegate had finalised his or her decision.

23. I note, but shall not set out, the various incidents of misconduct that have occurred either in gaol or in immigration detention. These are detailed and analysed in the delegate’s reasons[17]. I have taken these into account in my review.

    [17] See Exhibit R1, at pp 23-24 (paragraphs [68]ff).

    REASONS

24. The first decision-maker found that the applicant had been convicted of a sexually based offence against a child and been sentenced to a term of imprisonment which he was required to serve on a full-time basis in gaol. The mandatory cancellation of the applicant’s visa was required in these circumstances: see section 501(3A)(a)(ii) and (b) of the Act. When the matter came before the delegate on internal review, the delegate decided that the applicant did not pass the “character test”, which was the relevant statutory criterion he or she had to address under section 501CA(4)(b). By that time, the applicant had had a further sentence imposed, namely, the lengthy sentence in relation to the assault on his landlord.

25. As part of my review, I must first address the question of whether the applicant passes the character test. I believe I should address the situation as at the date of my decision. On the information before me, the applicant fails the character test in a number of ways. First, as at the date of my decision, he has been convicted of an offence for which he has received a sentence of imprisonment of 12 months or more (the offending involving the assault upon the landlord). This means the applicant has a substantial criminal record: see section 501(6)(a) and (7)(c). Moreover, he has been convicted of a sexually based offence involving a child (see section 501(6)(e)(i)), and, in any event, I would not regard him as a person “of good character” given his past criminal conduct (see section 501(6)(c)(i)).

26. I find, therefore, that the applicant does not pass the character test as at the date of my decision.

27. Having reached this conclusion, I must address the second question, viz, whether there is “another reason” for the cancellation decision to be revoked: section 501CA(4)(b)(ii). Like the delegate, I must apply Direction no 90. I turn now to consider the application of the Direction. In the matter of Re Rai and Minister for Immigration, Citizenship, Migrant services and Multicultural Affairs (Migration) [2021] AATA 2119 I set out, at paragraphs [32]ff, certain prefatory observations in relation to the Direction. I customarily set these paragraphs out, and I do so again here:

    32. I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

    33.  I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

    34.  First, remaining in Australia is a privilege conferred on noncitizens 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, noncitizens 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 where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen 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 noncitizens 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. Fifthly, the nature of the noncitizen’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 insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

    35.  I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

    36.  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 section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight “generally” to primary considerations over other considerations.

28. Paragraph 8 of the Direction requires me to address certain so-called primary considerations. The first of these considerations is the protection of the Australian community.  I shall not set out the principles that appear in paragraph 8.1(1) but I have had regard to them and apply them. Under subparagraph (2), I must give consideration to the nature and seriousness of the applicant’s conduct to date (paragraph (a)) and to the risks to the Australian community should he commit further offences or engage in other serious conduct (paragraph (b)).

29. I turn now to consider the nature and seriousness of the applicant’s criminal and other conduct to date. There are a number of matters specified in paragraphs (a) to (g) of paragraph 8.1.1(1) that I must consider. I regard the applicant’s offending in relation to his landlord and his underage female victim as very serious. Self-evidently, the offending against the landlord was of a very serious kind.  It was violent and it was accompanied by other offending including theft and damage to property. The head sentence of 22 months was a long one. I note that the appeal court thought that an even longer sentence ought to have been imposed. A sentence of that length is a very clear indicator of how serious the offending was, and a crime involving violence is required to be viewed very seriously: see paragraph (a)(i).

1. The crime involving the 15-year-old child was of a sexual nature and is required to be taken very seriously under the Direction: see paragraph (a)(i). It was not a violent crime as such, but the assault was clearly sexual.  The sentence of eight months is not especially long, but it is nevertheless a serious one. The victim was young and alone on a bus at night. As a community member, she had every right to expect that her safety and wellbeing would not be compromised by another passenger for his own gratification.  

2. I must also take into account all the other offending that appears in the applicant’s criminal record, and I do note this has included other assaults[18].  I also take into account the reported incidents in gaol and immigration detention as I have earlier said I would.  Overall, the applicant’s record discloses multiple offences, and, I would say, a trend of increasing seriousness (cf paragraph (d)) in that he has progressed to crimes against children as well as to a more violent form of assault against the landlord (who was asleep in his bed and at home when the assault occurred late at night).

   [18] This includes, on my assumption, an assault against the female receptionist at a brothel, which is an instance of violence against a woman which is required to be taken very seriously irrespective of the sentence imposed.

3. I am required to bear in mind the cumulative effect of repeated offending (under paragraph (d)) and I do so. All in all, therefore, the nature and seriousness of the applicant’s conduct must be assessed to be very serious.  That is quite clear under the Direction.

4. I must have regard to the risk to the Australian community.  I bear in mind what appears in subparagraph (1) of paragraph 8.1.2 without setting that principle out. I must also have regard to two matters “cumulatively” as specified in paragraphs (a) and (b) of paragraph 8.1.2(2).  

5. Under paragraph (a), I must have regard to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct.  I regard the physical assaults as posing a very serious type of harm. The assault against the landlord was clearly premeditated, occurred in a private home, was prolonged, and was accompanied by a threat of further physical violence in the future. The Court’s remarks advert to the serious pain the victim suffered. I note there have been other assaults although not as serious as this one. All in all, assaults of this nature are very serious because they impinge directly on a person’s safety.

6. The sexual touching of the 15-year-old girl is also, in my opinion, a serious invasion of a female adolescent’s right to feel safe and free from molestation in a public place. It must have been a very confronting and intimidating episode for her.  I think the harm here is both to the individual and also to the wider Australian community in that these offences cause women in particular to fear for their safety in public places. They pose a risk of serious harm.  Offences of this type do cause victims, especially females, psychological harm and engender ongoing fear because victims may no longer feel comfortable using public spaces.  The offending was particularly serious because it involved a girl who had clearly resisted and explained her age.   

7. I add that the applicant’s dangerous operation of a vehicle would also pose some risk to the community if repeated.

8. I must have regard, “cumulatively”, to the risk of the applicant re-engaging in these types of offending.  It has not been easy to assess this matter. In my opinion, the risk assessment is low to medium but probably more on the low side.

9. First, I have had regard to the fact that the applicant actively denied his offending before me.  I do not accept his evidence. I accept and rely on the judicial remarks as an accurate summary of all offending.  The applicant professed remorse for his offending before me, but he did so while simultaneously denying the occurrence of the events in question. Accordingly, I do not regard that expression of remorse as meaningful.  Many applicants to the Tribunal make the mistake of downplaying, or denying, their offending in the hope of persuading the Tribunal to set aside the decision under review. I well understand that pressure, but in the absence of genuine remorse I am unable to proceed on the basis that an applicant feels moral guilt in relation to his or her offending and is on that account less likely to commit the same type of offences again.

10. I am required, however, by the Direction to have regard to the risk of recidivism and not to remorse as such.  There are a number of matters that I would mention in this regard.  First, the judicial remarks that I have before me do advert to external factors.

11. So far as the sexual-touching offence is concerned, the applicant was intoxicated at the time. As for the very serious offence against the landlord, the appeal Court found that there were mental health issues that caused the applicant to be unstable.  And I also accept the Court’s finding that alcohol use appeared to be the applicant’s “significant criminogenic issue” at the time.  In this regard, I accept that the applicant has not drunk for some considerable time now and has in fact made efforts to improve his general health and wellbeing. If the applicant stays away from alcohol, he is less likely to reoffend.

12. I further find that Dr Jegasothy will assist in the applicant’s rehabilitation.  Dr Jegasothy was called by the applicant to give evidence[19] and was an impressive witness.  He has considerable experience in assisting the resettlement of Tamil refugees in the community.  He made it clear that he is able to offer assistance to the applicant, including the arrangement of appropriate accommodation and links into the community.  That will be a very important stabilising factor for the applicant, and it does tend in my opinion substantially to lower his risk of recidivism.  Dr Jegasothy is of Tamil ethnicity himself, has suffered persecution in Sri Lanka, and is able to communicate with the applicant in his first language.  

    [19] And he provided a letter of support reproduced in Exhibit A2, pp 44ff.

13. Furthermore, the applicant has now had an experience of prolonged incarceration followed by immigration detention. These experiences are likely to have made a profound impact upon him.  He will know that any further offending will simply lead him back to gaol and to a further lengthy period of immigration detention.  I genuinely believe that this applicant will seek to avoid anything that will place his future in Australia at risk.  He believes – and correctly so –  that he has a very uncertain status at the present time.

14. I note that the applicant’s appeal to the full Federal Court, if successful, will result in a reconsideration only of his protection-visa application.  The full Federal Court will not grant the applicant a protection visa; and a protection visa might yet be refused on character grounds, especially in circumstances where there is further offending.  While his status is so precarious, the applicant would be foolish beyond words to engage in further misconduct or to resort again to alcohol, a disinhibiting drug for him. 

15. All in all, I rate the risk of the applicant re-offending as somewhere between low and medium but more likely low.  I bear in mind, however, that this is a matter I must have regard to “cumulatively” under the Direction.

16. The second and third of the primary considerations do not apply here and so I may leave them to one side.

17. The fourth primary consideration is the expectations of the Australian community, elaborated in paragraph 8.4. I note what appears in subparagraph (1) without setting it out. I also note that subparagraph (2) has particular application in this case because the applicant has been found guilty of a sexual offence against a child. This sort of offence is treated expressly as raising very serious character concerns under subparagraph (2) and it must count against the applicant strongly.  I note that the Direction requires me to have regard to the community expectations as described whether or not the applicant poses a measurable risk of causing physical harm to the Australian community[20]. I am not to engage, moreover, in any assessment for myself of the community’s expectations[21].

    [20] Paragraph 8.4(3).

    [21] Paragraph 8.4(4).

18. All in all, therefore, it may be said that all relevant primary considerations do weigh substantially against the applicant.

19. I must have regard to “other” considerations: see paragraph 9 of the Direction. There is a non-exhaustive list of four such considerations: see paragraph 9.1.

20. I do not believe I should have regard to either international non-refoulement obligations or the extent of any impediments on removal.  I say this because I am concerned only with the cancellation of a bridging visa.  If I affirmed the decision under review, my decision would not cause the applicant to be removed to Sri Lanka.  He would stay in detention.  He would only be removed to Sri Lanka (or another country) if at the end of all his legal and administrative processes, he did not receive a substantive visa. The applicant’s right to a substantive visa permitting him to remain in Australia on a long-term basis is not before me and is not affected by my decision. Accordingly, I do not believe either of these two considerations is relevant.

21. I have no information before me concerning the impact, if any, of my decision on victims.  In these circumstances, I believe it should be treated as a neutral consideration.

22. I do not find that the applicant has established strong bonds or connections in the Australian community as such. Again, I note that my decision concerns the applicant’s bridging visa and not the substantive visa.  I would mention here, however, the contribution he has made to the welfare of Aboriginal Australians, which was the subject of evidence given by Mr Nathan Deaves.  I give the applicant some limited credit in this regard.

23. The “other” considerations are expressed merely to include the four considerations to which I have referred. The Direction provides that they are not limited to these four.

24. I do believe there is another consideration to which I ought to have regard.  The applicant’s overall future risk to the community is attenuated, in my opinion, by the fact that the visa he seeks to have reinstated is one with a limited duration only (namely, a bridging visa). I am not tasked with weighing up the risk to the community of the applicant’s long-term presence in Australia (for the reasons I have given). On the other hand, if I affirm the decision under review, the applicant’s legal appeal will continue, and he will not be removed pending its finalisation. This implies that the applicant will continue to be held in immigration detention. I believe I ought to take into account the fact that the result of a decision to affirm the decision under review is a prolongation of immigration detention, while the result of setting it aside is to permit the applicant to reside in the community for a limited period only while his legal appeal is finalised.

25. I should add that it is not possible for me to estimate how long it will be before the applicant’s appeal is finalised. I do not believe it is appropriate for me to seek to assess the likelihood of the appeal being successful (or of any future application he may make to the Minister for a special visa). These are matters that I feel are simply beyond the information that I presently have before me even assuming it were appropriate for me to engage in such an exercise.

26. All in all, I believe I should give substantial weight to the fact that the applicant will continue in immigration detention as a result of a decision by me to affirm whereas setting aside the decision under review would not result in my giving the applicant a permanent right to reside in Australia.  That is a matter I believe I should take into account in his favour.  The period of detention would not be unlimited, it is true, but it would be prolonged and somewhat uncertain in the sense that the applicant would not know for certain how long he will be detained.  I would also note here that the applicant has indicated, and I think reasonably, that he has a dual concern in this regard.  First, he has the obvious interest in his liberty now that his prison sentences have been served to the extent required by law and given the lengthy time he has already spent in detention; and, secondly, he would wish to engage with his legal advisers from a position within the community, and therefore more easily, in respect of his appeal.  Engaging effectively with one’s lawyers is a reasonable concern.

    WEIGHING THE CONSIDERATIONS

27. I turn now to weighing the various considerations. This has proved to be a most difficult exercise. All the primary considerations count against the applicant. I acknowledge the express indication in the Direction that, generally, primary considerations ought to prevail over the so-called “other” considerations[22].  But there is no doubt that as a matter of law, other considerations may in an individual case prevail over the primary considerations.

    [22] Paragraph 7(2).

28. In this case, as I have said, a decision by me to set aside the decision under review would not result in the applicant having a permanent right to remain in Australia.  Responsibility for a decision concerning the applicant’s permanent status lies elsewhere.  I must face squarely, I believe, the ongoing detention that the applicant would face were I to affirm the decision under review[23].  That period cannot be said to be trivial as the applicant’s appeal to the full Federal Court has only just been initiated (or is shortly to be initiated).  The plurality in the full Federal Court decision of WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463 highlighted, if highlighting is necessary, the great premium the law generally places upon individual liberty. Individual liberty is the most basic human right and fundamental freedom known to the common law[24]. I do believe it is also appropriate to take into account the fact that the applicant has been in detention since August or September of 2021. He made his representations to have the cancellation of his visa revoked on 30 December 2020.  It took 18 months for the decision to be finalised, and, as I say, the applicant entered immigration detention in either August or September of 2021.  That is some time ago.  If I affirm the decision under review, a further period of time in detention is inevitably implied whilst the court processes take their course.  I am not in a position to conclude that the applicant’s appeal to the full Court is unmeritorious.  That is, I am not in a position to say that the applicant is simply wasting time.

    [23] See WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463 at [120].

    [24] See [2021] FCAFC 55; 285 FCR 463 at [123].

29. The applicant will only be entitled to live in the community for a limited period of time as a result of any decision I make to set aside the decision under review, although it is unlikely to be a short period.  The risk of exposure to harm that the community would face as a result of my decision is lower than the risk the community would face if the applicant were to remain in the community permanently as a result of my decision.  I need to weigh that in my opinion, but I need also to bear in mind that some risk to the community would still exist while the bridging visa remained in force.

30. In all the circumstances of this more unusual case ‒ and I say “unusual” because I am concerned not with a permanent visa but with a bridging visa ‒ I believe that the correct or preferable decision on balance favours revocation of the cancellation decision.  I would refer again to the protective factors here so far as the risk of recidivism is concerned.  I believe the support that Dr Jegasothy will offer to the applicant is important in this regard. I have already referred to the strong deterrent jail and further immigration detention will pose for this applicant although I do note that some of his offending in the past has occurred, worryingly, whilst his liberty was conditional.

31. Returning to the language of the relevant provision, having identified and weighed the various considerations under the Direction, I have decided on balance that there is “another reason” for the cancellation decision to be revoked: see section 501CA(4)(b)(ii).

    DECISION

32. Accordingly, I shall set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked. 

    …………[sgnd]…………….

    Associate

    Dated: 13 October 2022

Dates of hearing:	29 August 2022 30 August 2022 5 September 2022
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Ada Wong Mills Oakley Lawyers