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

[2022] AATA 4442

SCDZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4442 (22 December 2022)

Division:GENERAL DIVISION

File Number(s):      2022/8445

Re:SCDZ

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President J.L. Redfern PSM

Date:22 December 2022

Place:Sydney

I set aside the decision under review and substitute it with a decision that the cancellation of the applicant’s protection visa is revoked.

................................[SGD]........................................

Deputy President J.L. Redfern PSM

CATCHWORDS

MIGRATION – mandatory visa cancellation – where the applicant does not satisfy the character test – whether there is another reason to revoke the mandatory cancellation – Ministerial Direction 90 – protection of the Australian community – expectations of the Australian community – international non-refoulement obligations – extent of impediments if removed – links to the Australian community – prolonged or indefinite immigration detention – potential breach of Australia’s international obligations – reviewable decision set aside and substituted.

LEGISLATION

Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311
BKTS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2733
BNGP v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
ENT19 v Minister for Home Affairs [2021] FCAFC 217
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536

FYBR v Minister for Home Affairs [2019] FCA 500

FYBR v Minister for Home Affairs [2019] FCAFC 185
LGLH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3613
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection [2018] FCA 584

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

1901883 (Refugee) [2021] AATA 3216

SECONDARY MATERIALS

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

International Covenant on Civil and Political Rights

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

REASONS FOR DECISION

Deputy President J.L. Redfern PSM

22 December 2022

INTRODUCTION AND BACKGROUND

1. The applicant is a 47-year-old national of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 2 October 2009. He is of Tamil ethnicity and was born and lived in the Batticaloa region of Sri Lanka. The applicant claimed to be a refugee fleeing persecution from the government. His claims were assessed and accepted by the Department of Immigration and Citizenship (as it then was) and on 30 November 2011 he was granted a protection visa. The applicant’s father passed away while the applicant was in prison. His mother passed away in 1997 in reportedly tragic circumstances which the applicant claims related to the Sri Lankan civil war. His five siblings are still alive. Two of his brothers live in Kuwait and his two sisters and other brother live in Sri Lanka. After leaving immigration detention, the applicant settled in Sydney and on 11 July 2015, he committed serious criminal offences of violence against two men, for which he was convicted on 11 August 2017. The applicant was sentenced to a term of imprisonment of seven years and six months, with a non-parole period of four years and nine months.

2. The applicant was arrested in September 2015 and remained in prison pending his trial and conviction. The applicant was due for release on 8 June 2020, but his visa was cancelled on 18 April 2019, at which time the applicant became unlawful. He was transferred to immigration detention following his release from prison, where he has been ever since. 

   The application for review

3. As already noted, on 18 Aril 2019, a delegate of the Minister mandatorily cancelled the applicant’s visa under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that the applicant did not pass the character test and was serving a full-time custodial sentence.[1] On 17 May 2019, the applicant made written representations to the respondent requesting revocation of the cancellation of the visa.[2] Following the consideration of the representations, the respondent decided not to revoke the cancellation, as recorded in the written decision dated 1 October 2022.[3]  

   [1] Exhibit R1, G13.

   [2] Ibid, G14.

   [3] Ibid, G3.

4. The applicant lodged an application for review of the decision on 12 October 2022.[4] I am satisfied that the Tribunal has jurisdiction to review that decision pursuant to paragraph 500(1)(ba) of the Act.

   [4] Ibid, G1.

5. On 24 October 2022 and 8 November 2022, the Tribunal made directions about the filing of evidence and submissions. The applicant, through his representatives, filed and served evidence comprising a statement from the applicant, letters of support from third parties, treatment summaries from the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS), medical records from International Health and Medical Services (IHMS), being the medical service providers in immigration detention, a psychological assessment report from Mr Tim Watson-Munro, consultant psychologist, and documents produced under summons, including a psychological assessment report dated 11 April 2017, the parole order from the District Court and documents from NSW Corrective Services. The respondent lodged documents under section 501G of the Act, being those documents in the delegate’s possession or under the delegate’s control that was relevant to the making of the decision, and filed evidence on 5 December 2022, which included a bundle of supplementary documents comprising documents produced under summons relating to the applicant’s criminal offending and his incarceration.

   The hearing

6. The matter was listed for hearing on 14 and 15 December 2022. The applicant, Mr Tim Watson-Munro and a witness in support of the applicant, Reverend John Jegasothy, gave evidence at the hearing. The parties provided lengthy oral submissions.

   LEGISLATIVE FRAMEWORK

7. Revocation of the mandatory cancellation of visas is governed by subsection 501CA(4) of the Act. Relevantly, this provides that:

   (4)       The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

8. We are satisfied that the applicant made the representations required by paragraph 501CA(4)(a).

9. Accordingly, there are two issues before the Tribunal:

   ·whether the applicant passes the character test; and if not

   ·whether there is another reason why the decision to cancel the applicant’s visa should be revoked.

   Does the applicant pass the character test?

10. The character test is defined in subsection 501(6) of the Act. Under paragraph 501(6)(a), a person will not pass the character test if they have ‘a substantial criminal record’. This phrase is relevantly defined in paragraph 501(7)(c), which provides that a person will have a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’.

11. The applicant was sentenced to a term of imprisonment of seven years and six months, expiring 8 March 2023. His visa was cancelled before his non-parole period expired and he was transferred into immigration detention at the end of his parole period.

12. I therefore find that the applicant has a ‘substantial criminal record’ and does not pass the character test. As such, the mandatory cancellation of the applicant’s visa cannot be revoked on the basis of subparagraph 501CA(4)(b)(i) of the Act.

    Is there another reason why the cancellation of the applicant’s visa should be revoked?

13. In considering subparagraph 501CA(4)(b)(ii) of the Act, the Tribunal is bound by subsection 499(2A) to comply with any directions made under the Act. In this case, Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90) applies.[5]

    [5] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

14. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.

15. The principles in paragraph 5.2 of the Direction are as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

16. Paragraph 6 of the Direction provides:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

17. Paragraph 8 of the Direction provides that the following ‘primary considerations’ must be taken into account:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

18. The Direction provides further guidance as to how each of these primary considerations are to be assessed at paragraphs 8.1 to 8.4.

19. Paragraph 9 of the Direction also provides that, where relevant, the following (non-exhaustive) ‘other considerations’ must be taken into account:

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)links to the Australian community, including:

    (i)strength, nature and duration of ties to Australia; and

    (ii)impact on Australian business interests.

20. Paragraph 7 of the Direction provides that in applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight, that primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. However, as observed by Colvin J in Suleiman v Minister for Immigration and Border Protection (Suleiman) in relation to Direction 65, which is now Direction 90:

    … Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[6]

    [6] [2018] FCA 594 at [23].

21. Having regard to Suleiman it is clear that the other considerations referred to in Direction 90 ‘may be afforded equal or greater weight than primary considerations in an appropriate case’ (Colvin J at [26]).

    OUTLINE OF THE EVIDENCE

    The applicant’s evidence

22. The applicant was born in Kattankudy, Batticaloa in the eastern province of Sri Lanka. He fled in 2009 because of fears of persecution from the Sri Lankan army as a Tamil, a person who is imputed to be a member or supporter of the Liberation Tigers of Tamil Eelam (LTTE) and because of his political support for Joseph Parasingham and the Tamil National Alliance. In his application for a protection visa, the applicant gave detailed accounts of his experiences in Sri Lanka during the Civil War and of his association with various political parties and in politics. He recounted several experiences where he was arrested by the police, interrogated and beaten and, on one occasion, allegedly threatened by members of a paramilitary group that supported the government. According to the applicant, in the period leading up to his decision to leave Sri Lanka, the applicant was threatened and attacked by police in Colombo. He tried to leave Sri Lanka on a number of occasions then found the opportunity to travel to Australia by boat which he said was a ‘terrifying trip’. The applicant was interviewed on his entry into Australia and after two years of his claim being assessed, he was granted a protection visa.

23. In a statement provided to this Tribunal dated 21 November 2022, the applicant referred to his statutory declaration in support of his protection application and confirmed that all statements made in that statutory declaration were true. The applicant further stated that his mother died in 1997 and that he was subsequently told by his aunt that his mother had been deliberately poisoned. He was concerned that if it became known by authorities that the family found out about poisoning, the family would be harmed. The applicant referred concerns he had about these matters in discussions with his STARTTS psychologist in April 2021. The applicant believes that his mother had suffered in trying to keep him and his siblings safe during the Civil War and this was an issue that was distressing for him.

24. After the applicant was granted a permanent protection visa in November 2011, he went to live in Sydney. He originally found it difficult to adjust but attended English classes and completed classes in housekeeping and cleaning. His first job was as an office mover and he then undertook a series of casual jobs in lawn mowing, painting, hospitality and construction. He believed that employers took advantage of him and wanted to start his own business but did not have the capital to do so. In 2015 he found a job as an installer for the NBN.

25. He lived in a unit that he shared with four other Tamil men. The applicant is a Christian and attended church. The services were in English but he found a church in Lidcombe that had a Tamil service. He attended these services weekly and sometimes fortnightly. He became a part of Tamil prayer meetings where the group met in each other’s homes. He sometimes hosted the meeting. The applicant stated that he played soccer in a tournament organised for refugees from different countries once or twice a year. He also took part in Tamil community events.

26. In July 2015 the applicant attended a party with some other Tamil men. He pleaded guilty to wounding two men, NA and B, and was sentenced to seven years and six months imprisonment, with a non-parole period of four years and nine months. According to the applicant, on that particular day he was drinking heavily out of a sense of frustration from being cheated by an employer while working for the NBN. He was working under a subcontractor. He did not believe that he was being paid properly by the subcontractor. When the applicant complained, the subcontractor changed the form of payments but still did not pay the applicant properly and then told the applicant he did not have any work for him. The applicant was concerned because he told his father and sisters to take a loan to build a house and he hoped he would be able to assist in financing repayments by remitting money to them regularly.

27. According to the applicant, he started drinking at 2.00 pm on the day of the incident and by the time of the fight that led to the offending, he was so drunk that he was unable to walk properly. The applicant described the fight arising from trouble between Tamil men where the party was and a neighbouring house. There was often mistrust between Tamils in the northern and the eastern provinces in Sri Lanka. It was in the context of this dispute between the two houses, being two rival parties, that the applicant attempted to intervene to sort out the problem. He states that he was called a ‘motherfxxxer’ and this upset him so much that he reacted badly. The applicant stated that he pleaded guilty because he was the person with the knife and he stabbed NA. He further states that he does not remember the incident involving B, that he did not purposely stab him and does not know how he got injured.

1. According to the applicant’s statement, not all of the details in the agreed facts are true but he accepted that he was guilty. What he did on that night would have had a huge impact. It would have had a huge physical and mental impact on NA and he would be worried for his future at his family’s future. The applicant stated that NA must have suffered ‘tremendously’ and would be concerned about whether he could work again. The applicant also stated that B would have been impacted a lot given that he was a tradesperson and had an injury to his hand, he would be concerned about his future and ability to work. The applicant disagreed with the contents of the pre-release report for parole which stated that he said the victims would be ‘fine’. The interview was short and there was no interpreter for the interview. He is concerned that the author of the report may not have properly understood what he was saying and that he may not have understood the questions being asked.

2. When he was in prison, the applicant attended and the EQUIPS Aggression course. He states that at the start he did not speak much English and experienced a lot of racism. The applicant described an incident where another inmate put something in the lock of his handcuffs to try and get him into trouble. When the applicant was working as a bin sweeper, someone told him that there was an attack planned on that day that he would be stabbed and thrown in the bin. He therefore refused to go to work but did not tell the officers the reason for fear that there will be reprisal from inmates if it was discovered he had disclosed this. The applicant stated that he was sexually assaulted by several men when he was in prison and was extremely upset talking about this. He said that this brought back memories from his childhood in Sri Lanka where he was also assaulted. After this sexual assault in prison, the applicant stated that he attempted to commit suicide. He was subsequently taken for treatment.

3. According to the applicant, there is an incident report in February 2019 recording that when he asked for Panadol and he was not given more Panadol, he became angry and said he would burn down his cell. The applicant stated that he did not intend to burn down the cell but he was in a lot of pain and felt desperate. The applicant further recounted an incident in which he was charged in March 2019 for having a sharpened screw and syringe in his cell. The applicant states these did not belong to him.

4. His father passed away and he was in prison and he grieved a lot of this time. This was a very difficult time because it was expensive to make calls to Sri Lanka and he was not able to speak to his family very much this time.

5. The applicant was released on parole in June 2020 and he has been in Villawood Immigration Detention Centre since that time. While he has been in detention, the applicant has undertaken courses in stress management, anger management and aged care. He found immigration detention far more difficult when he had been in detention in 2009. There was a lot of violence and he did not feel safe there. On 23 August 2021, some men set the immigration centre building on fire in front of his room. It was difficult for him to leave the room because of the smoke but he was able to contact a friend on his telephone who contacted detention centre officers. He was rescued after 15 minutes by firemen and was taken to hospital. He was taken in handcuffs and felt very embarrassed about this. On his return, he was placed in quarantine which was badly set up. According to the applicant, he was treated badly was very upset because of this. The applicant stated he complained to the Human Rights Commission about his treatment.

6. The applicant states that he had other problems in detention, including problems arising out of allowing a detainee to use his phone. The applicant has been in detention for two and a half years and he is scared while he is in there. However, he is even more scared of being returned to Sri Lanka where he believes he would be interrogated and harmed.

7. The applicant states that if he is released from detention, he will continue living in Australia. He wants to keep on improving himself, get married and have children. He also wants to continue with his counselling with STARTTS. His STARTTS counsellor speaks Tamil and she advises and helps him. The applicant states it is important to him to keep working on himself. He knows that he is on parole until March 2023 and if he is released, he will go to Liverpool Community Corrections Office to report immediately. The applicant states that he has not drunk alcohol for seven years and that it is a condition of his parole that he does not drink alcohol. He will keep to that. The applicant further states as follows:

   I never want to drink heavily again in the future. After my parole ends, if professionals advised me it is better not to drink anything at all, I will follow that. I want to go and work, earn money and support my family. I have social responsibilities. I consider my family above myself – I wanted to benefit them, above my own needs.

8. The applicant states he would like to start his own business to work in construction or as a handyman. A member of the Tamil community who he first met when he was in prison was Father John Jegasothy, who told him he would be able to stay with him if he was released until we found a place of his own to rent. According to the applicant, he will continue to go regularly to church and now he could understand English, he has plans to attend St Andrews Anglican church near Town Hall. He hopes that he will be given another chance to live safely in Australia.

9. In his supplementary statement dated 7 December 2022, the applicant stated that when he was in prison, he did not get the opportunity to undertake any rehabilitation course about alcohol. He requested to participate in such a course but was told he was not suitable and could do the EQUIPS course. The applicant further stated that he had not drunk any alcohol for more than seven years and that if he wanted to drink alcohol in the detention centre he could have because many people in the centre made homebrew. He stated that he decided he did not need it. The applicant further stated that alcohol had caused him to go through very a difficult time and he had lost many years of his life. He wanted to concentrate on work and having a family and that he accepted he cannot afford to make a mistake.

10. In his oral evidence at the hearing, the applicant confirmed that matters set out in his statements and expanded on some issues arising from the documents tendered. He said that he was a Christian and liked being part of the Church because it relaxed his mind. He said the injuries inflicted on his two victims was a big mistake. When questioned about how the victims would feel, he said they would feel very angry with him because they would be concerned about how they would be able to look after their family and work as a result of their injuries. He had prayed for their recovery.

11. The applicant also said that he had found his experience in prison to be very painful and that he had experienced harassment and racism and ‘certain types of harassment’ that he had explained to his lawyer and was included in his statement, but he did not want to explain in the hearing. He explained that he had completed a number of courses while he was in prison but there were some that he could not complete because he had been subjected to harassment by other inmates during the course. He said that he had been in immigration detention for two and a half years and had found this very different from his previous immigration detention. He felt less safe than when he was in prison, and this was exacerbated by an experience in detention where detainees had deliberately set fire to the detention centre near his room. He was trapped in the room, had to be rescued by the fire officers and was treated in emergency.

12. The applicant said that he found the counselling he had received to be very helpful, particularly the STARTTS counselling. He said that he would not voluntarily return to Sri Lanka because he was very scared of what may happen to him. The applicant said he would not be involved in violence in the future. He had gone through such hardship as a result of a ‘small incident’. When asked what he meant by this the applicant said that he made a big mistake. When asked whether the time spent in prison had changed his attitude, he said that he had found how violence could be such a critical thing. Violence can cause danger to life and his experiences in prison had helped him to understand the gravity of it.

13. In cross-examination, the applicant was questioned about the things he said to his STARTTS counsellor about the incident. It was recorded in the STARTTS report dated 22 May 2021 that the applicant told the counsellor the person he attacked had said a bad name about his mother and he got so angry and shouted but did not deliberately attack anyone. It was recorded that the applicant said he had pleaded guilty on the advice of his lawyer. The applicant agreed that he may have discussed this with his counsellor.

14. The applicant was cross-examined at length about his version of events in relation to the criminal offending. When he was asked why he had a knife, the applicant went into some detail about how he went into the house, found a knife near some watermelon on the table and took the knife in case he needed it for self-defence. The applicant said that he stabbed one of the victimless in the back because the victim was holding him by the neck. The applicant was challenged about trying to justify his actions on the night by ‘expanding’ on his evidence about the events. The applicant said that his actions on the night were not a deliberate act by him, he was not himself. He said that he had the knife in self-defence but what happened was as he described. This answer suggested the applicant was not actually saying he used the knife in self-defence but this is why he had the knife.

15. The applicant was cross-examined about his explanation why he was drinking that day and in particular, the statement made that he had been drinking because of a dispute with his employer. The applicant accepted that he was not working at that time because his employer was not working for NBN during Ramadan but he expected to be working after this time. He said that he had a dispute with his employer over his pay but agreed this was not the only reason he was drinking.

16. The applicant said that the co-accused was his cousin and that between 15 and 20 people were involved in the fight. The applicant was questioned about information included in the pre-release report. On examination, the applicant said the interview was only about 15 minutes and he was interviewed without the use of an interpreter. He was concerned that the interviewer may have misunderstood various aspects of his interview.

17. The applicant said that he did not believe he had a problem with aggression and violent behaviour and said that he liked counselling with the STARTTS counsellor, who was Tamil speaking. When asked whether he had a problem with alcohol abuse, the applicant said that he accepted the incident had been caused by this, but he wanted to assure the Tribunal that this would not happen again. The applicant was asked whether he needed help with managing his alcohol consumption and he said that he did not feel he would get addicted to alcohol and did not need that help.

18. The applicant was questioned why he said to the IHMS counsellors he no longer needed support but told the STARTTS counsellor a different story. The applicant said that he did not want to give IHMS counsellors the impression that he had problems because he did not want to be transferred to Christmas Island. He also said he did not want to share everything with the IHMS counsellor.

19. The applicant was questioned about some incidents recorded while he was in prison. He explained that one of the incidents related to an injury arising from a small fight where he was injured by the inmate. He explained (on re-examination) why he had refused to work in a certain role. He said that he had been warned that some inmates would attack him so he decided not to work to avoid the situation but did not tell authorities because this would cause further problems with inmates. He also explained about an incident where he was reported to have been aggressive with prison officers who refused to give him more Panadol. He said he was in considerable pain because he had been assaulted by an inmate but did not wish to disclose this. It was also noted in the case records that the applicant had later apologised for his behaviour.

20. The applicant’s evidence was credible and largely consistent with documentary evidence provided and statements previously made by him. It is relevant to note that the applicant’s communication with others, including his evidence at the hearing, was somewhat imprecise and in some cases confusing but this is to be expected where English is not the applicant’s first language. In my view, caution should be exercised when making findings of fact based on inconsistencies in cases such as this.

21. While I accept that the applicant was attempting to explain and, in some cases, justify the action he had taken on the night, I am also satisfied that he accepts his actions were not justified, caused serious injury and he is remorseful. In this regard, I consider that there is considerable force in the evidence given by Mr Tim Watson-Munro (referred to below) that remorse and evidence of insight is best assessed by reference to actions taken by the offender rather than the words of remorse expressed.

    The applicant’s criminal history

22. As noted, the applicant was convicted of two criminal offences on 11 August 2017, being wound person with intent to cause grievous bodily harm and reckless wounding in company. He was sentenced to imprisonment for seven years and six months. He pleaded guilty to the indictments on the day the matter was listed for trial, although the agreed statement of facts was signed by the applicant and on behalf the Director of Public Prosecutions on 28 February 2017. The agreed statement of facts recorded following matters.

23. In relation to the charge of reckless wounding, which relates to the victim B, it is stated the applicant, and another (who was apparently the applicant’s cousin) came towards B, who tried to defend himself by reaching out to block the knife held by the applicant. In so doing, B was stabbed twice with a wound below his wrist and the other on the medial part of his arm.

24. In relation to the charge of wounding with intent to cause grievous bodily harm, it is stated that a person with the applicant first stabbed NA and following this, the applicant also stabbed him. NA tried to push the applicant away, but the applicant stabbed him in the back multiple times. The applicant and the other offender left the scene and both victims were taken to hospital. The injuries they sustained were set out in the agreed statement of facts but as these injuries were explained in some detail in the sentencing remarks of Judge Pickering SC, I will not repeat them.

25. The sentencing remarks of Judge Pickering are detailed and insightful and provide a useful background in understanding the nature and seriousness of the offending and the prospects for rehabilitation.

26. After citing the events as recorded in the agreed facts, Judge Pickering noted that B was admitted to Westmead emergency following the assault where he was found to have two deep stab wounds to the left arm. X-rays also revealed that he had an open fracture of the ulna. B underwent surgery and an operative fixation of the ulna fracture with a plate and screws. His tendons were found to be ruptured and they were repaired by plastic surgeons. It was noted that as of January 2016, B was on waiting lists for surgery to release scar tissue around his tendon to improve his range of motion. Antony suffered seven stab wounds, not all by the applicant, but was stabbed multiple times by the applicant, by the applicant’s cousin and a third unknown man who had not been apprehended. He was taken to Westmead emergency where his wounds were washed and sutured. All wounds reached the dermis and epidermis. The stabbing injury to his chest wall was a serious injury which caused extensive bleeding in the chest cavity. He spent two days in ICU and nine days in hospital.

27. Judge Pickering made findings about the objective seriousness of the offending. He found there was some aspect of planning because the applicant was armed with a knife and it followed some level of aggravation between the parties earlier in the evening, even though the aggravation seems to have been ‘utterly trivial’. Alcohol played a role in the affliction of this offence and while the offence was spontaneous in nature, the fact that they were armed suggested there was some discussion between the parties. The injuries to NA were clearly serious and were potentially life threatening. He had made a reasonably good recovery but the Judge observed that this was from ‘sheer luck’. According to the victim’s impact statement of NA, he still suffered from physical pain, he has trouble bending and lifting and still has to take medication to manage his pain. At the time of the offence, NA’s wife was four months pregnant and his son was 15 months old. He was unable to attend to his regular job. This put great financial stress on the family, loss of income and he had to take out loans to pay for medical and other bills, which he was struggling to repay. NA also suffered great emotional and psychological distress and was not able to assist his wife through her pregnancy once the baby was born which damaged their relationship. He struggles with being able to sleep and is fearful and anxious.

28. In his victim impact statement, B also expressed that he had suffered physically and psychologically. His hand and thigh do not function properly, he has had to depend on Centrelink benefits and the attack is still fresh in his mind.

29. In considering the subjective factors in relation to the offending, Judge Pickering observed that the applicant’s case was ‘utterly baffling’ and there was ‘very little to assist in understanding why this offence occurred except perhaps the important background of how the offender came to Australia’. Judge Pickering referred to the applicant’s background as a refugee and noted that he began drinking when he was about 25 years old. This alcohol consumption increased when he came to Australia, which he said he used to deal with the death of his mother and to help him cope with the difficulty he had in adjusting to Australia. The Judge noted that the applicant had been diagnosed with post-traumatic stress disorder (PTSD). The Judge also observed that it was important to note that prior to this offending the applicant had no prior criminal history and, as such, he was to be dealt with as a person of good character. It was also observed that the applicant’s custodial history prior to sentencing was reflective of him not having problems.

30. While the Judge observed that the verbal insult of his mother that reportedly made the applicant very angry could not be used as any form of mitigation, the applicant’s background and aspects of the trauma and the linkage to his family could give some insight into why he would act so irrationally on this evening. The Judge accepted that there was a degree of remorse from the applicant. He noted that in terms of rehabilitation, it was clear the applicant would need assistance in relation to his drinking problems, his mental health issues (in particular to his PTSD), aspects of social integration, English speaking skills and that specific deterrence was not an important feature in sentencing in this particular case because the applicant was a person of prior good character and, in his view, has somewhat good prospects of rehabilitation. Notably, the Judge found as follows:

    Whilst this is a first time offence these circumstances are troubling and the offender in my view will require a longer period of supervision in this matter and is a person to which there are strong reasons to find special circumstances in this matter.

1. The Judge found there were special circumstances, including the applicant’s background, his mental health issues and the potential impact of a custodial sentence that needed to be weighed against a more severe sentence for such extreme conduct. The Judge observed that he had ‘confidence’, in light of the applicant’s admissions and his acknowledgement of guilt, of his prospects in the future. This was in contrast to the Judge’s observations in relation to the applicant’s co-offender, in respective of whom the Judge expressed less confidence about his reoffending.

2. The sentencing remarks of Judge Pickering are highly relevant and provide the Tribunal with important insights about the applicant’s offending and how it should be assessed. The Judge had the advantage of reviewing all of the evidence about these matters and his considerable experience and judgement to the sentencing exercise.

3. Prior to this offending, the applicant had no criminal history and, as noted by Judge Pickering, his conduct while in custody up to the time of sentencing did not reveal any problems. For the reasons outlined below, I also find that this was the case in relation to both during his criminal incarceration and his immigration detention.

   Documentary evidence

4. Documents from New South Wales Corrective Services relating to the applicant were summonsed and extracts of case notes and incident reports were tendered by both parties. In summary, those documents reveal that the applicant made some early complaints about fears for his safety in prison and there is a report about self-harm in June 2016. There are some isolated reports of incidents involving the applicant but overall, the case notes record that the applicant was polite and compliant and had actively participated in various recommended courses. There was a reference to the applicant refusing to work in a particular role and, as outlined above, he gave evidence about the reasons the reasons for this. Given the applicant was in custody for nearly five years, his records reveal a relatively uneventful period in detention.

5. NSW Corrective Services records also record the courses attended by the applicant, including a course described as ‘Level I – Dig Lit’ over the period between March and June 2020, a course described as ‘Level 1- LLN’ over the period June to August 2019 (although a number of these courses had to be cancelled) and the ‘Level 2 – LLN’ course over the period August to November 2019, with the program being completed and the relevant certificate issued in April 2020. He attended English language classes from June to December 2018 and a General Education, Certificate I-II course, from October 2015 to September 2017. The records relating to the last courses note that the applicant either attended or was excused from attending all available sessions of which there were over 170 over the two-year period. The applicant also attended vocational courses, such as work readiness, barista and building and construction courses, over the period November 2015 to October 2017.

6. At the beginning of the referral to STARTTS, a psychological assessment report for the applicant was prepared by Tajana Bogicevic dated 6 October 2020. Ms Bogicevic outlined the applicant’s history and noted that the assessment indicated the applicant was experiencing clinically significant symptoms associated with anxiety as well as symptoms associated with depression. It was recommended that the applicant be provided with ongoing psychological treatment.

7. The applicant’s treatment summaries from STARTTS for the period December 20 to September 2022 were produced. There were 19 reports recording 69 counselling sessions. With the exception of a small number of cancellations, the applicant attended these sessions on a weekly basis. He attended these sessions with the same counsellor, who spoke Tamil. The early reports (from March 2021) referred to the applicant’s depression and feeling of hopelessness, recommending ongoing therapeutic treatments and his release into the community. In the report of 22 May 2021, it was noted that the applicant reported chronic passive suicidal thoughts with no plan or attempt. This was consistently repeated in subsequent reports, including the last report provided dated 20 September 2022. In this report the applicant’s feelings of being overwhelmed were noted following an incident where he was trapped in a fire that was deliberately lit by inmates in the detention centre. It was noted that the applicant was fearful and constantly worried about his future because all his continued detention. The counsellor again strongly recommended the applicant’s release into the community and further recommended that the applicant undertake uninterrupted ongoing psychological treatment with the same counsellor at STARTTS into the future.

8. Various IHMS clinical records were provided for the period June 2020 to May 2022. These records reveal that IHMS referred the applicant to STARTTS. The records note an early assessment by a psychiatrist and record that the applicant was receiving ongoing counselling, initially with the use of an interpreter, and thereafter without the use of an interpreter because of the challenges experienced in using the telephone interpreter. In a report dated 31 May 2021, the IHMS psychologist noted that the applicant stated he was expressing low-grade suicidal ideations with no intent or plan. Notably, it was also reported by the applicant to the psychologist that he was constantly thinking about the events that led up to being incarcerated. In the session of 21 June 2021, it is recorded that the applicant did not wish to engage in ongoing psychological support through IHMS and that his mood had improved. However, two days later there was an appointment with a psychiatrist because of concerns raised by the counsellor about the applicant’s worsening mood. Counselling continued after this and in the report dated 16 May 2022, it was noted that some of the applicant’s flashbacks have been reducing after the previous week’s counselling session.

9. In a psychological assessment report dated 11 April 2017 provided by Danielle Hopkins for the court on sentencing, she outlined the difficult and traumatic experiences reported to her by the applicant about the Sri Lankan Civil War. She also noted that the applicant told her he had made a ‘big mistake’ and that he had never done anything like that in his life. He expressed regret. Ms Hopkins made reference to the applicant’s alcohol consumption as a means of coping and noted his trauma symptoms. She recommended that the applicant would benefit from treatment, in his native language, to better manage his PTSD, his anger management together with alcohol psychoeducation. She suggested a referral to STARTTS.

10. In a pre-release report dated 19 March 2020 prepared by Vanessa Gregg (Community Corrections Officer), Ms Gregg referred to the applicant’s disruptive life in Sri Lanka, noted the applicant had not incurred any criminal convictions and appeared to have generally maintained a productive and prosocial lifestyle but stated that, in her view, the applicant’s participation in an offence-related program has had limited impact on improving his insight into his criminal offending. She also stated that the applicant had demonstrated no insight into the issues associated with his alcohol use and demonstrated no insight into the impact of the victims, stating that they would be ‘fine’.

11. Ms Gregg reported that the applicant did not believe he required any further offence-related intervention. She noted that the applicant had completed the EQUIPs aggression program and that he had been subject to regular psychological review while in custody. She also noted that the applicant had satisfactorily achieved a number of competencies towards a Certificate II in Skills for Work and Vocational Pathways. He was assessed at a low – medium risk of reoffending.

12. In summary, Ms Gregg stated that the applicant was ‘yet to demonstrate’ any insight into his serious violent offending or the impact on his victims. She stated the applicant had been exposed to significant chronic violence and it was suggested that this had served to normalise violence as a means of conflict resolution. She noted that the applicant would have access to appropriate intervention in the community and his released on parole was recommended.

13. It should be noted, as outlined in the applicant’s evidence above, that he disputes a number of statements made, and conclusions drawn, in this report. My findings in relation to this is set out later in these reasons.

    Evidence of Reverend Dr John Jegasothy and letter from Ravi Emmanuel

14. Reverend Jegasothy provided a letter in support of the applicant’s review dated 17 November 2022 and gave oral evidence at the hearing. In summary, Reverend Jegasothy stated that he is a Tamil community leader in Australia and he came to know the applicant as part of this role. He visited him in prison and was present at his sentencing hearing in 2017. He has visited the applicant in prison and they regularly talk over the telephone. Reverend Jegasothy states that he has worked with the Department of Home Affairs and the Immigration Department for over 20 years as a Tamil community leader. He states that he was recently invited to attend a roundtable meeting with the Minister to speak about Tamil asylum seekers, refugees and those who need to be considered to be settled in Australia. He retired from active ministry in the Uniting Church two years ago after 33 years as a minister. He has been helping hundreds of asylum seekers and refugees to settle into the community from Sri Lanka since 1996.

15. In his letter Reverend Jegasothy explained that, while he did not know the applicant before he went to prison, he had heard reports from others about the applicant’s involvement in prayer groups and with his community, including doing charity work at Goat Island as a volunteer from the Blue Mountains Refugee Support Group. When he spoke with the applicant about his offending, he said that he had gotten himself into a ‘terrible’ situation. He was worried about his family and his cousin and had discussed with Reverend Jegasothy all the courses that he had undertaken to ensure that he was ready when he was released from prison and detention. Reverend Jegasothy had the impression that the applicant was a caring person because he would raise issues about other inmates and often asked the Reverend how he was going. The applicant was motivated to work and Reverend Jegasothy was prepared to offer him accommodation until he could find somewhere to rent. He was also prepared to assist him with finding employment and he had recently been able to do this for two people in Melbourne. Reverend Jegasothy was optimistic about the applicant integrating into the community with his assistance. He had been doing this sort of work in assisting refugees for over 27 years.

16. Ravi Emmanuel provided a letter of support dated 22 November 2022 but did not attend the hearing to give evidence. Mr Emmanuel stated that he had known the applicant for over nine years. He met him in the early years of his arrival in Australia while working as the program manager at Settlement Services International helping refugees and asylum seekers in the settlement process. He stated that the applicant had been an extremely helpful, honest and kind person who helped the organisation and was one of the most honest and humble persons he had come across during his tenure at Settlement Services International. It is apparent Mr Emmanuel was not clear about the applicant’s criminal offending because he stated that ‘[w]hatever happened’, he knew that the applicant felt ‘very [remorseful] about it’.

    Evidence of Mr Tim Watson-Munro

17. Mr Tim Watson-Munro provided a report dated 23 November 2022. Annexed to his report was a summary of his curriculum vitae. Mr Watson-Munro is a consultant psychologist. He is registered with AHPRA and has held several leadership and advisory roles, including as the National Chair of the College of Forensic Psychologists, Australian Psychological Society and Adjunct Professor, Bond University and Advisory Board Member of the School Criminology and Applied Psychology. He has held many appointments since 1978 as a psychologist and consultant psychologist working in the prison system, providing expert opinion and as a lecturer and academic. He has been working in psychology for more than 40 years and is undisputedly an expert in his field.

18. In the preparation of his report, Mr Watson-Munro was provided with extracts of the section 501G documents, statements of the applicant, IHMS clinical records regarding consultations with the applicant between 2020 and 2022, NSW Corrective Services case notes and incident reports, a report from Danielle Hopkins, clinical psychologist, dated 11 April 2017, a pre-release report dated 19 March 2020, a summary of the psychological treatment prepared by STARTTS counsellor Ms Sivaharani Mayuran dated 22 December 2020 and psychological programs and progress notes of Cathy Yu, provisional psychologist.

19. Mr Watson-Munro was asked for his opinion regarding the applicant’s psychological conditions and, attendant to this, an assessment of risk of reoffending. He was also asked for recommendations preferable to strategies or support to reduce the risk of the applicant reoffending and the impact, if any, which prolonged detention could be expected to have on the applicant’s mental state and the expected effect of removal to  Sri Lanka on  his conditions.

20. In summary, Mr Watson-Munro opined there are a number of protective factors in place, should the applicant be released into the community, including his motivation for work, his desire for continuing treatment and, in general terms, the ongoing maturation which has occurred during his period of imprisonment and immigration detention. He believed the risk of the applicant reoffending is now trending from moderate to low.

21. Mr Watson-Munro noted a broad spectrum of symptoms reflective of PTSD also noting that the applicant’s anxiety and depression have been compounded by his current circumstances and, attendant to this, the protracted period of time custody and immigration detention. In closer history taking, the applicant reported that there were further episodes of trauma referable to sexual slurs and abuse. The applicant’s sense of anticipatory anxiety has been further, bounded by genuine fear returning to Sri Lanka. The applicant acknowledged that he had been well supported through his involvement with STARTTS, in addition to IHMS. Mr Watson-Munro noted that the applicant’s commitment to treatment in this regard is well evidenced it also noted that he had minimal treatment in the community prior to his incarceration. According to Mr Watson-Munro the dynamic of feeling overwhelmed is relevant to the applicant’s judgement and behaviour at the time of the offending which led to his incarceration. The applicant now ‘appears to have some insight to this process, which reflects his progress in treatment, in addition to general maturation’.

22. Mr Watson-Munro reviewed the various reports and documentation to focus on the applicant’s involvement with treatment and his attendant progress. He opined, addressing the issues raised in the letter of instruction, as follows:

    ·The applicant suffers a range of diagnosable conditions, inclusive of PTSD, and, integral to that diagnosis, severe and recurring depression, anxiety disorder and features of an adjustment disorder. The origins of this can be traced back to his formative years in Sri Lanka. His symptoms have included hypervigilance to danger, flashbacks, anticipatory anxiety and a sense of despair regarding the future. The applicant’s background and mental conditions may have caused a ‘fight or flight’ response and it is apparent his offending conduct was impulsive. On examination the applicant expressed deep regret and concern about what had occurred and it is apparent that he now has clear insight to this particular aspect of his functioning. Alcohol was previously a problem when he was in the community because the applicant tended to self-medicate against his symptoms.

    ·The applicant has no prior forensic history and a considerable period of time has now lapsed since the offending. The applicant has been in custody and immigration detention for seven years and he has matured and reflected on the issues which led to the offending. He has actively engaged with treatment through both STARTTS and IHMS where he has utilised a combination of cognitive behaviour therapy and supportive and motivational psychotherapy. The applicant may also benefit from eye movement desensitisation and reprocessing (EMDR) which has been demonstrated to be highly successful in treating PTSD. In addition to treatment, the applicant has a number of protective factors in place, which include his expressions of remorse, his continued abstinence from alcohol over seven years coupled to his intention to remain alcohol free, his maturation, his desire to undertake further education with a view to improving his employment prospects and his desire to establish himself, to commence a family with a view to being pro-    social and contributing as a member of the community. Taking these factors into account, Mr Watson-Munro believes that the applicant’s risk of reoffending is trending from moderate to low.

    ·Strategies or supports to reduce the risk of reoffending would be ongoing treatment in the community, including EMDR, reconnecting with the community through employment and further education.

    ·The applicant’s sense of despair regarding the future has been well described in the material reviewed by Mr Watson-Munro. If the applicant remains in Australia on an indefinite basis immigration detention, the symptoms which have been described by practitioners who have treated the applicant will prevail and inevitably escalate. If the applicant is removed, he will face significant escalation of his symptomology and the likelihood of the Applicant receiving treatment in Sri Lanka, Mr Watson-Munro is advocating, is ‘at best remote if not bleak’.

23. When giving evidence in chief, Mr Watson-Munro confirmed his written opinion that the applicant’s risk of reoffending was trending moderate to low. He noted that the applicant had undertaken anger management courses when he was in detention, he was no longer drinking alcohol, although it was accepted that more work would need to be done and the applicant would need to be supported in the community through treatment. Mr Watson-Munro observed that the applicant’s offending was situational. He was well supported by STARTTS and the counselling provided was comprehensive and well regarded. It is important that the counselling had been ongoing for two years on a weekly basis. The applicant had a lot of treatment and, in Mr Watson-Munro’s view, this speaks to his motivation and needs for counselling. Mr Watson-Munro did not consider it uncommon for the applicant to cease treatment through IHMS given that he was already receiving trauma counselling through STARTTS.

24. Mr Watson-Munro was asked whether he was concerned that the applicant had not completed alcohol rehabilitation while he was in prison or detention, he responded that he was not because there was evidence that the applicant had received treatment for the underlying issues that led to the alcohol abuse, namely self-medication. Unfortunately use of alcohol often exacerbated the problem rather than resolved it. The fact that the applicant had not had alcohol for seven years indicated to Mr Watson-Munro that while the applicant had an alcohol abuse disorder he was now in remission.

25. According to Mr Watson-Munro, relevant to risk is the fact that the applicant had expressed remorse. The expression of remorse was not itself the most significant factor, Mr Watson-Munro had heard many offenders express remorse. The real question was whether there was an expression of empathy and whether the offender had taken steps to demonstrate that remorse. In this case, the applicant had undertaken treatment and expressed a desire to be pro-social and work to get back into the community.

1. Indefinite detention for the applicant would increase his sense of hopelessness. The applicant is not currently suicidal but if he remained in immigration detention for an extended period or returned to Sri Lanka, he would need to be monitored.

2. Mr Watson-Munro was cross-examined about by what he meant by ‘significant others’. According to Mr Watson-Munro, significant others can include people in the community who are prepared to support the applicant, it was not confined to family and friends and could include work mates, counsellors and someone like Reverend Jegasothy. He was also questioned about whether the fact that the applicant had previously had a range of casual jobs and did not have a history of stable employment would be a cause for concern. Mr Watson-Munro said that the lack of stable employment would feed into depression as employment was an important protective factor, although it would not necessarily increase the risk of reoffending. Much will depend on the treatment. He was also asked whether the lack of family and friends in the community would increase the risk. Mr Watson-Munro acknowledged that if the applicant remained unemployed and had no friends or connections in the community, his anxieties could increase. However, continuing treatment was important. It was also important to note that the applicant was more mature than when he had committed the offences. Mr Watson-Munro’s assessment of risk trending moderate to low was based on the treatment the applicant had received from STARTTS, the fact that he had not consumed alcohol for seven years and the other protective measures in place, including the supports in the community.

3. Mr Watson-Munro said that he would recommend the applicant does not drink in the future, although he could drink occasionally.

4. In re-examination, Mr Watson-Munro explained the process of EMDR and noted that this was a specialised treatment that would not have been available in immigration detention.

5. For the reasons outlined in more detail below, I find Mr Watson-Munro’s evidence to be cogent and persuasive.

   CONTENTIONS OF THE PARTIES

   Applicant’s contentions

6. The applicant accepts, through submissions made by his representatives, that he does not pass the character test because he has a substantial criminal record but contends there are other reasons why the mandatory cancellation should be revoked. The applicant accepts that his offending was very serious, in that it involved violence being a type of crime identified in paragraph 8.1.1(1)(a) of the Direction, and as such it should be viewed very seriously. The applicant acknowledges the effect of his actions on victims and that the lengthy term of imprisonment imposed by the District Court is indicative of the seriousness of his offending. Despite this, it is submitted that the applicant has no previous criminal history, there is no cumulative effect of repeat offending, and the applicant has not failed to disclose criminal offending or reoffended after being warned.

7. The applicant accepts that further offending of the nature in which he engaged and was convicted would cause harm to individuals or the community if repeated, but it is contended that it is unlikely the applicant will engage in further criminal conduct in the future. It is submitted that the applicant is recognised to be a person who is otherwise of good character and witnesses who have known the applicant attest to his good character. The applicant has accepted responsibility for his offending and is remorseful and he acknowledges the role his heavy intoxication contributed towards his offending. There is evidence that the applicant has undertaken appropriate rehabilitation and treatment, he has received extensive psychological treatment from STARTTS and IHMS, he has not used alcohol for over seven years and Tim Watson-Munro, the consultant psychologist who has undertaken an assessment of the applicant for the purposes of these proceedings, assesses the risk of the applicant re-offending is now trending from moderate to low. There is evidence the applicant has appropriate practical supports in place if he is released into the community and he will be on parole upon his release, which will provide him with access to additional supports and supervision in his transition period.

8. The applicant accepts that there is a deemed expectation of the Australian community that non-citizens will obey the law and that the failure to obey the law will be held against them. However, it is also contended that the weight to be given to the deemed expectations of the community should be significantly moderated in circumstances where the applicant’s offending occurred on one occasion, he has otherwise abided by the laws, he is a refugee with a background of significant trauma, he faces a consequence of indefinite detention if the visa cancellation is not revoked and there was not an unacceptable risk that he will breach the trust of the Australian community again by committing further offences.

9. The applicant suffered persecution in Sri Lanka and there is no dispute that he has been recognised as a person who engages Australia’s non-refoulement obligations under the Convention Relating to the Status of Refugees (the Refugee Convention). It was on this basis that he was granted a permanent protection visa in 2011. The consideration of non-refoulement obligations weighs very heavily in favour of revocation and this weight is warranted notwithstanding that the Act does not require the applicant’s removal to Sri Lanka. Following the passage of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021, section 198 does not require the voluntary removal of the applicant because of a ‘protection finding’ has been made in the course of determining his protection visa application. It is therefore accepted the prospect of the applicant being refouled is not likely and, as such, this matter does not of itself weigh in favour of revocation.

10. However, the legal and practical consequence of non-revocation of the cancellation decision is that the applicant would be indefinitely detained. There is no evidence to suggest that the applicant could be removed to any other country. Nor is there evidence that the Minister has any intention to grant another visa or to consider exercising his personal non-compellable powers to release the applicant into the community. Indefinite detention is a serious consequence and there is research that establishes that immigration detention has severe mental health consequences, exacerbating the impact of trauma and existing psychological conditions. In the applicant’s case, these consequences carry particular gravity because he is a person who has experienced significant trauma in custodial settings, both in Sri Lanka and Australia.

11. It is submitted that the legal consequence of revocation would be indefinite detention and this is a matter that weighs very heavily in favour of revocation.

12. It is further contended that the prospect of indefinite detention engages international obligations under Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which provides that no one shall be subjected to arbitrary arrest or detention. Article 7 further provides that no one should be subject to torture or to cruel, inhuman or degrading treatment or punishment. It is contended that the consequences of indefinite detention of the applicant would or may breach these obligations and that this ‘carries consequences for Australia’s reputational interests and standing in the global community’. While it is accepted that these are ‘unenacted international obligations’ and thus they are not mandatory relevant considerations in discretionary administrative decision-making, the Tribunal is nonetheless permitted to consider this matter because it is relevant to its considerations. It is submitted that the consequences of indefinite detention are, or at least may be, in breach of these obligations and it is appropriate for the Tribunal to make findings on these matters as this is an additional matter that weighs heavily favour of revoking the cancellation of the applicant’s protection visa.[7]

    [7] Refer Applicant's Statement of Facts Issues And Contentions [74]–[80], referring to ENT19 v Minister for Home Affairs [2021] FCAFC 217 and Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17, as expanded in oral submissions referring in particular to EPU19 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (no 2) [2021] FCA 1536.

13. It is also submitted that, if removed to Sri Lanka, the applicant faces substantial impediments in re-establishing himself and maintaining a basic standard of living, particularly as a result of his severe symptoms of post-traumatic stress disorder, which caused him severe stress and difficulty in his overall functioning. It is contended that there is not adequate medical support is available to him in Sri Lanka and, having regard to the current economic crisis in Sri Lanka, there have been devastating consequences for the public health care system which it is submitted is on the verge of collapse. In oral submissions, it was accepted that while this was a consideration to which decision-makers were directed to have regard under the Direction, it had limited application in circumstances of the case because the applicant would not be involuntarily removed to Sri Lanka. This issue would only arise if the applicant decided to voluntarily return, which he has said he would not, or if the Minister subsequently made a decision under section 197D the Act that the applicant is no longer a person in respect of whom a protection finding would be made. For the reasons set out in more detail below, it is accepted by both parties that this is theoretically possible but, at this stage, speculative.

14. The applicant contends that he became involved in the Australian community following his release from detention in 2011 and held various jobs, joined a church congregation and was involved in voluntary community activities. It is submitted that the applicant is strongly motivated to re-establish his community links and to continue contributing to the Australian community. This consideration is said to weigh in favour of revoking the visa cancellation, although it is accepted that the applicant’s links are not significant as he only lived in the community for about three and a half years.

15. In summary, it is submitted that, while the primary considerations of the protection of the Australian community and expectations of the Australian community necessarily weigh against the applicant, they are not decisive and the other considerations, and in particular the non-refoulement obligations and consequential indefinite detention, should be afforded the greatest weight in the circumstances this case, outweighing the countervailing considerations. As such, the Tribunal should be satisfied that there is ‘another reason’ why the cancellation should be revoked.

    Respondent’s contentions

16. The respondent contends that the nature and seriousness of the applicant’s offending weigh very heavily against revocation. The applicant has been convicted of two offences of a violent nature, being ‘wound person with intent to cause grievous bodily harm’ and ‘reckless wounding in company’. The Tribunal should have regard to the sentencing remarks made by Judge Pickering in the District Court, which described the offending and injuries sustained by both victim in detail. Notably, the court remarked that the offending was very much in the mid-range of objective seriousness, and this was reflected in the applicant’s sentence. It is also submitted that there were a series of aggravating factors in the applicant’s offending compounding the seriousness of his conduct, namely the use of the knife against unarmed victims, an aspect of planning in the offending and the fact that the applicant fled the scene after the offending leaving one of his victims with serious wounds. The applicant was sentenced to an aggregate term of imprisonment of seven years and six months and, as previously noted by the Tribunal in PNLB and Minister of Immigration and Border Protection (Migration) [2018] AATA 162 at [22], terms of imprisonment are a ‘last resort in the sentencing hierarchy’ and in this case reflect the objective seriousness of the applicant’s offending.

17. The respondent contends that in assessing the risk to the Australian community, the Tribunal should consider the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the likelihood of the applicant engaging in such conduct. The likelihood should be assessed taking into account available information and evidence about the risk of reoffending and evidence of the rehabilitation achieved by the time of the decision, giving weight to time spent in the community. In this case, the applicant has not been tested in the community because he has been immigration detention since his release from prison. However, it is submitted that the applicant has demonstrated little meaningful rehabilitation or remorse.

18. While it is accepted the applicant has undertaken the EQUIPS Aggression Course run by Corrective Services while he was in prison, it is submitted that he has not taken sufficient steps to address his problems with alcohol abuse and has not faced up to his problems. This is a serious concern given the acknowledged link between the applicant’s intoxication and the offending in July 2015. The applicant has not expressed genuine remorse for his offending and in his evidence to the Tribunal he attempted to justify or minimise his actions in referring to his criminal offending as a ‘small incident’. His evidence about the incident is inconsistent with his guilty plea and the Agreed Statement of Facts in his criminal case. The applicant’s categorisation of his role as a ‘peacemaker’ is incongruent with the agreed facts and the sentencing remarks in the District Court. The applicant has demonstrated a lack of insight and does not accept responsibility for his violent behaviour. This raises concerns about the risk of the applicant reoffending because of his inability to manage those matters that have been a trigger for him in the past.

19. The applicant has engaged ‘to some extent’ with STARTTS and IHMS but needs further treatment before the Tribunal can have confidence that the risk will be properly mitigated and this is recognised by Tim Watson-Munro. Tim Watson-Munro opines that the applicant’s risk reoffended was trending moderate to low this was based on certain preconditions, such as the applicant remaining alcohol free, continuing with appropriate treatment and having the support of significant others. Based on the available evidence, the Tribunal may be confident about these matters. Considering the very serious and nature of the applicant’s offending and the significant harm that might arise if he reoffends, the risk is ‘unacceptable’ and, as such, the protection of the Australian community weighs very heavily against revocation.

20. Having regard to these matters, including the very serious nature of the applicant’s offending and the lack of meaningful rehabilitation, the Australian community would expect that the applicant should not hold a visa and this weighs heavily against revocation. Notably, this is not a case where the applicant has lived in Australia all his life or from a very young age where the Australian community would be prepared to afford higher tolerance.

21. The respondent accepts that the applicant is a person in respect of whom Australia has non- refoulement obligations and that, by virtue paragraph 197C(3)(b) the Tribunal should find that the applicant will not be liable for removal from Australia if his visa remains cancelled. It is submitted that the consequence of a decision not to revoke the cancellation will be that the applicant remains in immigration detention until such time as the Minister’s not compellable powers under sections 195A or 197AB are exercised, the applicant is resettled in a safe third country or until one of the circumstances set out in paragraph 197C(3)(c) apply. Those circumstances are that the protection finding is quashed, the Minister decides a protection finding would no longer be made or the applicant requests voluntary removal. It is therefore contended that the consequence of this is the applicant’s detention would be prolonged for a period while such process of consideration is carried out. It is further contended that there is no evidentiary basis to say that the Minister would not exercise those discretionary non-compellable powers to effect release into the community.

22. This submission highlights a fundamental difference between the parties. The applicant characterises immigration detention as a result of the now ‘clarified’ non-refoulment obligations as ‘indefinite’. In contrast, the respondent submits that immigration detention may be prolonged until such an administrative process is carried out. Such a characterisation infers an end point to the detention through an event or process that can be defined and will inevitably lead to some outcome. This issue is, and remains in these matters, one of the most contentious and difficult questions for determination in revocation decision-making where the visa cancelled is a protection visa.

23. On the one hand, the decision-maker is faced with serious concerns about the protection of the Australian community and the understandable desire for Australia to exercise its sovereign right to determine whether non-citizens who are of character concern should be allowed to remain in Australia. On the other, decision-makers must balance those concerns against the rights and expectations of those non-citizens as to how they should be treated based on domestic laws, their existing contributions and links with the Australian community and, most importantly, international obligations being the best interests of the child and non-refoulement under the Refugee Convention and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 

24. In this case, the respondent contends that the serious circumstances arising out of the applicant’s offending and the nature of the potential risk make the applicant an unacceptable risk and this outweighs the consideration of the impact of continued detention, albeit for a prolonged period, on the applicant.

25. In relation to the submissions made by the applicant that indefinite (or prolonged detention) breaches international obligations under the ICCPR, it is contended these international obligations have not been enacted in Australia and therefore cannot be relied on as a source of rights and obligations under domestic law. As such, any obligations of the ICCPR are not mandatory relevant considerations in this case. Even if it was permissible for the Tribunal to take into account international obligations under the ICCPR, it is submitted that the Tribunal it should not make any findings in relation to these matters because the question of whether prolonged detention is in breach of these obligations is highly contestable. Any finding that prolonged detention may be a breach should be approached with caution. The question of whether immigration detention in these circumstances is or may be a breach of international obligations is a complicated factual and legal question. There is little value in finding that obligations may be breached as equally, it may be found that they may not be breached. This is of little utility in a case such as this.

26. The respondent contends that if the applicant is removed from Australia to Sri Lanka there would be few impediments because he has spent most of his life living there, he speaks Tamil, he is unlikely to face cultural barriers and retains familial connection with Sri Lanka through his siblings. The real impediments faced relate to his protection claims which, given he will not be involuntarily removed, should ultimately be given little weight.

1. Added to this, I note that the applicant will be supervised in the community for a period of three months on parole. In this case, the sentencing Judge, having considered the matter, decided to give a liberal period of supervision under parole and imposed special conditions to assist the applicant with transition into the community. It is difficult to assess the risk in circumstances where an offender, who would normally have a lengthy period of supervised transition, does not have that transition period because the offender has been in immigration detention for an extended period while awaiting the department to consider his request for revocation. This is the unfortunate aspect of delay. Despite this, the fact the applicant will be supervised for the initial period of his release provides some level of comfort.

   Conclusion on protection of the Australian community

2. As already noted, the nature and seriousness of the offending raises concerns about the protection of the Australian community. While I would not characterise the nature of the offending as so serious as to make any risk unacceptable, there remains a risk despite the measures that are in place. That risk, if the applicant were to reoffend using a knife or with similar such serious conduct, would have the potential to cause significant harm.

3. Accordingly, on balance, I find that that the protection of the Australian community weighs against revocation in the circumstances of this case.

   Family violence and best interests of minor children in Australia

4. It is common ground that no claims with respect to family violence committed by the applicant arise on the material. Nor are there claims in respect of the best interests of minor children. These considerations are therefore neutral.

   Expectations of the Australian community

5. Paragraph 8.4(1) of the Direction provides as follows:

   The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government not to allow such a non-citizen to enter or remain in Australia.

6. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined and states:

   This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

7. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. However, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are set out in the Direction.[8]

   [8] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, and FYBR v Minister for Home Affairs [2019] FCA 500.

8. The respondent contends that this consideration weighs heavily against revocation because the applicant has committed two very serious criminal offences involving violence where the victims of the criminal offending have suffered significant physical, psychological and economic harm. Given the seriousness of the offending, any risk is unacceptable. This is not a case where the applicant has lived in Australia all his life or from a very young age and there is no reason why the Australian community would afford him a higher level of tolerance (as noted in the principals at paragraph 5.2(4) of the Direction). Indeed, the applicant committed his criminal offending after only three and a half years in the community and this is a significant matter in assessing community expectations.

9. The applicant’s representative concedes that this consideration weighs against revocation, but contends that this is not a strong factor, because the deemed expectations of the community should be significantly moderated in the circumstances of the applicant’s case. The Australian community would have regard to the applicant’s refugee background and significant trauma, the fact that the applicant does not have extensive criminal history and that there is not an unacceptable risk that he will breach the trust of the Australian community again by committing further offences. It is also submitted that it is highly relevant to note that the applicant has not committed any of the offences identified in paragraph 8.4(2) in respect of which the Direction states that the Australian community would expect the Australian Government to, relevant to this case, cancel the visa of a non-citizen. The applicant submits this consideration should therefore weigh only moderately against revocation.

10. On balance, I accept the submission made by the applicant’s representatives and so find.

    OTHER CONSIDERATIONS

11. Paragraph 9(1) of the Direction provides that the decision-maker must take ‘other considerations’ into account where relevant and these considerations include, but are not limited to, international non-refoulement obligations, the extent of impediments to the non-citizen if removed, the impact on victims and the non-citizen’s links to the Australian community, including the strength nature and duration of those ties and the impact on Australian business interests.

    International non-refoulement obligations

12. It is common ground between the parties that this consideration should ultimately be given limited weight because of the operation of subsection 197C(3) of the Act, which does not require the involuntary removal of the applicant because a protection finding has been made in the course of determining his protection visa application. It is also common ground that the legal and practical consequence of a non-revocation decision is that the applicant would remain in prolonged detention.

13. Prolonged detention (or as the applicant would characterise it, ‘indefinite detention’) may be the consequence of Australia meeting its international non-refoulement obligations. However, in my view this matter does not arise for consideration under this heading but rather as a relevant ‘other consideration’ expressly contemplated by paragraph 9(1), which states that these considerations include ‘but are not limited to’ those enumerated. Both parties agree with this matter of principle but both accept that it ultimately does not matter because it is common ground that the legal and practical consequences of non-revocation is a significant relevant matter for consideration. This issue is dealt with below.

    Extent of any impediments

14. I find this consideration weighs in favour of revocation, but not strongly so because, as a practical matter, the applicant will not be removed to return to Sri Lanka. If he is removed, I accept that he would have family supports and would be able to understand the language and culture. However, against this I also accept that he would be unlikely to receive a high level of quality mental health treatment given the dire economic circumstances that prevail in Sri Lanka at this time.

    Impact on victims

15. As already noted, this consideration is directed to the impact of a revocation decision on members of the Australian community, including victims of the criminal behaviour. Relevantly, this consideration directs attention to information or submissions about the decision itself, rather than the impact on victims of the criminal offending. As there is no such information available, this consideration does not arise on the material.

    Links to the Australian community

16. While there is evidence that the applicant does have some links to the Australian community, I find that his links were limited. There is little probative evidence about the applicant’s contribution to the Australian community in the short time that he lived in Sydney after he left immigration detention. His employment history was sporadic and, while there is some evidence that he provided voluntary services to assist other refugees, the applicant only spent three and a half years in the community before his offending. Accordingly, I give this consideration little weight in favour of revocation.

    Prolonged immigration detention

17. If an applicant’s visa is cancelled and he or she exhausts any rights of judicial review and his/her bridging visa ceases, the applicant will become an unlawful non-citizen. This will be the case unless and until the applicant obtains another visa allowing him or to remain in Australia and this is a mandatory legal consequence of the cancellation.

18. Section 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal.

19. Section 198 of the Act contains the relevant provisions relating to removal of unlawful non‑citizens. Subsection 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they request in writing to be removed. Even if an unlawful non‑citizen does not request to be removed, they are liable to be removed under section 198, relevantly subsection (5) in this case, which provides that a detainee must be removed as soon as reasonably practicable if they have not applied for a substantive visa under subsection 195(1) or revocation under section 137K. Importantly, the obligations of removal under section 198 are subject to the provisions of the new subsection 197C(3) and section 197D of the Act, which were inserted by the Migration Amendment (Clarifying International Obligations for Removal) Act2021 (Cth) and came into effect on 25 May 2021.

20. It is common ground that these amendments have an impact on removal obligations where findings about protection obligations have been made. In essence, section 197C(3) provides that section 198 does not require the involuntary removal of a non-citizen where a protection finding has been made in the course of determining a protection visa application. In cases where a protection visa has been cancelled, and thus there has been a protection finding, the non-citizen cannot be removed.

21. The legal and practical consequence of the non-revocation of a protection cancellation decision is that the non-citizen who has had their protection visa cancelled, will be detained for a prolonged period pending consideration of whether some other executive decision may be made to affect their release. The legal and practical consequences of non-revocation are clearly relevant considerations for the purposes of paragraph 9(1) of the Direction. This has been recognised by other presiding members of this Tribunal in recent cases such as BKTS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) and LGLH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration).[9] In a joint decision with Senior Member Dr Denis Dragovic (as he then was) I have also considered the impact of section 197C(3) on the exercise of discretionary powers in respect of the cancellation of a protection visa under other provisions of the Act in 1901883 (Refugee).[10]

    [9] [2022] AATA 2733 per Senior Member C.J. Furnell and [2022] AATA 3613 per Senior Member Dr Linda Kirk.

    [10] [2021] AATA 3216.

22. Many of the principles set out in those decisions are uncontroversial and I will not repeat them other than to note there are exceptions under paragraphs 197C(3)(c), none of which apply in this case. Relevantly, the decision in which the protection finding was made has not been quashed or set aside, there has not been a decision made under subsection 197D(2) that the applicant is no longer a person in respect of whom any protection finding would be made and the applicant has not asked the Minister, in writing, to be removed to Sri Lanka. He has in fact disavowed making such a request now or at any time in the future.

23. The applicant submits that the only other options for release from immigration detention is the grant of a visa under section 195A or the releases of the applicant into the community following a decision made by the Minister under section 197AB. Both these sections give the Minister a non-compellable broad discretion. Section 195A provides that, if the Minister thinks that it is in the public interest to do so, he or she may grant a person a visa of a particular class. Section 197AB provides that if the Minister thinks it is in the public interest to do so, he or she may make a residence determination to the effect that the person is to reside a specified place instead of being detained immigration detention.

24. It is contended that neither option has been considered or is likely to be considered. Furthermore, under the existing relevant ministerial guidelines, it is unlikely that an applicant who fails the character test under section 501 will be referred to the Minister for consideration.[11] It is also contended that it would be inconsistent with the position taken by the Minister in this case to vigorously oppose the revocation of the cancellation of the applicant’s protection visa on character grounds.[12] Such an inconsistency was also recognised by Kenny and Mortimer JJ in WKMZ v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (WKMZ) in considering the impact of the previous version of section 197C as follows:

    It has been accepted that s 197C also does not preclude the executive ensuring that sufficient time is given to an individual who is the subject of an unfavourable non-revocation decision, and who is entitled to make a protection visa application, to do so. However, as Rares J’s reasons in FRH18 made clear, it is difficult to see how any delegate acting rationally and reasonably, or the Minister herself or himself acting rationally and reasonably, could decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful. To grant or restore a visa in such circumstances would be to return a person to free and lawful residence in the Australian community, an outcome which under a different provision has been determined to pose an “unacceptable” risk to that same community, and in situations such as AQM18 and FRH18, where it has been determined to be against the “national interest”. Nevertheless, the scheme permits a visa application in some circumstances, and it has been accepted that the duties in s 198, read with s 197C, should be read as accommodating time for such an application, fruitless as it might appear to be.[13]

    [11] Procedures Advice Manual 3 (PAM3): Guidelines on Minister’s detention intervention power – section 195A of the Migration Act 1958 at [4] and Procedures Advice Manual 3 (PAM3): Minister’s residence determination power at [10]

    [12] Referring to the observations of Wigney J in MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [55].

    [13] [2021] FCAFC 55 at [124].

25. There is considerable force to this submission, noting that the applicant first made his request for revocation in May 2019 and has remained in detention, notwithstanding submissions made about the applicant’s mental health, since this time.[14]

    [14] Submissions by the Refugee Advice and Casework Service (RACS) dated 8 December 2020 at [6.1]-[6.13] G documents at p102

26. Against this, the respondent submits that even though these discretions have not been exercised in this case at this time and the guidelines provide that ‘generally’ these matters will not be referred or considered, this does not forestall possibility of a favourable exercise of these discretions at some time in the future. In this regard, the respondent relies on the observations made by Jagot J in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (BNGP) about such a possibility, as follows:

    The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith. It is within ordinary human experience that, over time, Ministers change and Ministers change their minds. At the time the Minister made this decision, 7 March 2022, it was a notorious fact, of which judicial notice may be taken, that there would be a Federal election within a few months. Even without that fact, the Minister must be taken to have known that relevant circumstances may change, Ministers may change and Ministers may change their minds. These were all rational possibilities at the time the Minister made the decision.[15]

    [15] [2022] FCA 878 at [42].

27. There is also force to this submission, particularly given it is now known that there has recently been a change in Government and the relevant Minister. As noted by her Honour, Ministers may change their minds and Government may change policy.

28. Notwithstanding these competing contentions, there is still considerable uncertainty about the available options if the applicant’s protection visa is not reinstated and he remains unlawful. The applicant will stay in prolonged immigration detention unless and until a decision is made that makes him lawful or a decision is made that he can be removed, either because there is another safe country available for him to resettle or because the Minister, or his delegate, has made a decision under section 197D that the applicant is no longer a person in respect of whom any protection finding would be made.[16] As illustrated by the discussion of these matters in WKMZ, the various competing public interests and policy considerations in character cases make these cases complicated. Character cases involving the cancellation of protection visas, the refusal of such visas and the refusal to revoke cancellation of protection visas, have been the subject of much judicial consideration in recent years, resulting in the amendments to section 197C, which came into effect in May 2021 clarifying removal obligations.

    [16] For further discussion on section 197D see 1901883 (Refugee) at [121]-[128].

29. In WKMZ, the court found that there was no inconsistency between the policy evinced in the previous Direction 79 (which is in similar terms to para 9.1(3) of Direction 90) and section 197C, as it then was. While the directions and provisions of the law have changed, the reasoning in WKMZ remains relevant to the facts of this case. These matters have been helpfully explained by Kenny and Mortimer JJ as follows:

    123.     If the interaction between executive policy and the giving of a direction to an officer for the purposes of s 198 of the Act in fact results in an individual being held in immigration detention for a period where the end point of the detention cannot be reasonably predicted or ascertained, then by reason of the combined effect of ss 189 and 196 (and subject to the arguments in AJL20) this extended period of detention remains a legal consequence of the cancellation or refusal decision, whether or not the label “indefinite” is attached to it, as Wigney J also recognised in MNLR at [93]-[94]. The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.

    …

    132.     … whether the reference to such a person facing “indefinite detention” is legally problematic depends on what is meant by the adjective “indefinite”. If, when applied to executive detention, the adjective means detention without a chronologically fixed endpoint, the existence of the executive policy set out in para 14.1(2) makes this a correct statement. Having failed in all challenges to a protection visa refusal or cancellation, to avoid refoulement affected individuals will then depend on the implementation of the executive policy set out in para 14.1(2) through the favourable exercise of one of the non-compellable discretions in the Act, or other avenues such as a successful third country resettlement process. Otherwise, their detention may continue, unless and until the executive abandons its policy of adherence to Australia’s international obligations in respect of that particular individual, or is compelled by a Court to remove a person (one of the options canvassed in AJL20). The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end. It may be inferred that any decision by the executive to abandon its adherence to Australia’s international obligations would, as White J said in AQM18, be a serious step and not a decision taken quickly: see [83] above.

    133.     As the facts of AJL20 demonstrate, in reality these administrative steps and inquiries may take a very long time, and not have any clear outcome, despite the presence of s 197C. In the case of the individual who is AJL20, his detention continued notwithstanding an express judicial determination in 2017 about the effect of s 197C. In our opinion such circumstances fit comfortably within a general concept of executive detention that can be characterised as “indefinite”.

1. In considering the various options that may be examined by the executive in deciding what action to take in respect of an unlawful non-citizen where protection obligations are owed, their Honours concluded as follows:

   … While those options are being genuinely, promptly and reasonably considered and pursued, a person may nevertheless suffer continued loss of liberty with no chronologically fixed endpoint, and no endpoint ascertainable by the individual concerned, so that her or his detention is properly described as “indefinite”. A decision maker in any revocation decision under Part C of Direction 79 should consider this as a prospect, whether or not the visa under consideration is a protection visa. To the extent the Minister contended otherwise, his submissions should be rejected. If a decision maker such as the Tribunal decides to revoke a visa cancellation, it is the Tribunal’s decision which restores a person’s freedom. Likewise, if a Tribunal decides not to revoke a visa cancellation, it is that decision which perpetuates the person’s detention. Decision makers in the position of the Tribunal are not entitled to ignore the continued deprivation of liberty of a person in the position of the appellant, while the executive pursues its policies to avoid refoulement. Further (and separately), if these matters are put to the decision maker as a representation, the decision maker is obliged to consider them because of the terms of s 501CA(3).[17]

   [Case citations omitted]

   [17] WKMZ at [136].

2. Accordingly, there is no dispute that an unlawful non-citizen in respect of whom there are protection findings, will remain in immigration detention for a prolonged period with no chronologically fixed endpoint and that this prolonged detention may be for a long time. Nor is there dispute that this, and the impact on the applicant in the special circumstances of his case, is a relevant matter for consideration in these proceedings.

3. The applicant’s representative contends that the applicant’s well documented trauma and the difficulties he has faced while in custody and then detention, weigh heavily in favour of revocation of the cancellation of his protection visa. The evidence of the impact on the applicant of his extended detention, without an endpoint or some certainty about his future, is contained in his statement, his oral evidence to the Tribunal, the evidence of Mr Watson-Munro and finally, as recorded in the psychological treatment notes from STARTTS, which refer to the applicant’s suicidal ideation and make recommendations about his release into the community from at least March 2021.

4. While the respondent does not dispute these factual matters, it is contended that these countervailing considerations do not outweigh the primary considerations that weigh against revocation.

5. Having regard to the compelling evidence about the impact on the applicant of prolonged detention in the circumstances of this case, I find this consideration weighs heavily in favour revocation.

6. In addition, and as already noted, the applicant contends that indefinite detention of the applicant may breach international obligations under the ICCPR and this, including the potential damage to Australia’s reputation in breaching these obligations, is a factor that should be considered that weights in favour of revocation. Notably, it is conceded by the applicant, and this is common ground, that the question of whether indefinite or prolonged detention is or may be in breach of international obligations under the ICCPR is not a mandatory relevant consideration, but it is nonetheless a permissible consideration which is relevant in the circumstances of this case.[18]

   [18] Refer to WKMZ for discussion on this issue at [74]-[80], also citing Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 and Perry J in EPU19 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [153] and [167]-[169].

7. I accept that such a consideration may be relevant and may add weight to the factors that weigh in favour of cancellation, but I am not persuaded that on its own ongoing immigration detention in these circumstances is or may be in breach of Articles 7 and/or 9 of the ICCPR. These matters are contestable and complicated.

8. In this regard, the following observations of Jagot J in the recent decision of BNGP are instructive:

   I do not dispute that it is reasonably arguable, and may be correct, that the indefinite detention of a person under the Migration Act as a result of the operation of ss 189, 196 and 197C(3) may place Australia in breach of some or all of these international obligations. It may also be the case that such detention is in breach of Australian law (see below). The point I am making is that in deciding whether a decision is legally unreasonable or not, in effect, because the decision-maker did not consider the full legal consequences of the decision, there may be a material difference between a legal consequence which is accepted by the Minister to be inevitable or is certain (that is, as in CWY20 and ENT19, that return of the person to a particular country would breach Australia’s international non-refoulement obligations) and a legal consequence which is merely probable or reasonably arguable – in this case, both because there was a rational possibility of the Minister exercising a power the effect of which would be to release the applicant from detention and because it is not certain that the indefinite detention of the applicant under the Migration Act would be in breach of Australia’s international obligations.

   The contestable nature of proposition (c) is also exposed in the Statement of Compatibility with Human Rights which accompanied the amending Act, required under s 8 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). In that statement (attached to the Explanatory Memoranda for the Bill) at p 14, it says that:

   While some unlawful non-citizens affected by the amendments made by the Bill will be subject to immigration detention while awaiting removal, the Minister’s decision not to grant them a visa or place them in community detention will be made in consideration of their individual circumstances. This helps to ensure that an immigration detention placement is reasonable, necessary and proportionate to their individual circumstances and therefore not be arbitrary and contrary to Article 9 [of the ICCPR].

   The contestable nature of proposition (c) is exposed further in the Minister’s submissions in which the Minister said that the applicant had not explained how immigration detention in accordance with the Migration Act (ss 189 and 196) contravenes the ICCPR, UDHR or CAT…[19]

   [19] BNGP at [48] – [50].

9. Her Honour stated that she did not need to make findings on these contentions in the case but observed, noting that the question of whether continuing detention was lawful under Australian law remained ‘unanswered’, as follows:

   This question also does not arise directly in the present case. It arises indirectly only in that the continuing detention of a person in accordance with ss 189 and 196 of the Migration Act, who is not able to be returned to a country due to international non-refoulement obligations (now as provided for in s 197C(3) of the Migration Act), may be in breach of Australian law. If it is in breach of Australian law, the detention can and will be brought to an end by a court of competent jurisdiction in response to an application to that end brought by the applicant. For present purposes what is relevant is that this reinforces the contestable character of the applicant’s proposition that a legal consequence of the Minister’s decision will be the indefinite detention of the applicant and that such indefinite detention will place Australia in breach of its international obligations.[20]

   [20] Ibid at [60].

10. Jagot J concluded:

    In this case, however, I am unable to conclude that in not considering the matter the applicant identified (the violation of international laws by reason of the applicant being indefinitely detained as a consequence of the refusal of his visa) in reaching his state of satisfaction about the national interest (or otherwise) the Minister acted legally unreasonably. This is because: (a) the actual legal consequence of the decision to refuse the visa was not the certainty, but the likelihood, of indefinite detention of the applicant, (b) more importantly, it is reasonably arguable but by no means certain that such detention would place Australia in breach of its international obligations, (c) it is at least as reasonably arguable that such detention would place the Commonwealth in breach of Australian law and, if this is found to be so by a court of competent jurisdiction, such detention could not continue, and (d) the applicant did not make any claim for consideration by the Minister that his indefinite detention would place Australia in breach of any international obligation.[21]

    [21] Ibid at [70].

11. This decision recognises that it is reasonably arguable but by no means certain that the likelihood of indefinite detention would place Australia in breach of its international obligations but that if this was found to be so by a court of competent jurisdiction, such detention could not continue. The court did not need to rule on this because the applicant did not make a claim on this ground, unlike this case, where the applicant has squarely raised the issue.

12. The question of whether the continued detention of the applicant in immigration detention means he would be ‘subjected to torture or to cruel, inhuman or degrading treatment or punishment’, as provided by Article 7, necessarily involves a detailed analysis of, and evidence about, the conditions facing the applicant in Villawood and the impact on him in the circumstances of the case. The applicant states that the conditions in immigration detention are worse than when he was there between 2009 and 2011 and that he feels less secure in immigration detention than when he was in prison. I accept the applicant’s subjective evidence about these matters, but I am unable to form a concluded view on whether the conditions in immigration detention, even having regard to the applicant’s particular circumstances and vulnerabilities, breaches Article 7 of the ICCPR.

13. Furthermore, making an equivocal finding that immigration detention ‘may’ breach Article 7 does not significantly advance the case. As observed by the respondent, such a finding would be equally amenable to the conclusion that prolonged immigration detention may not breach Article 7.

14. As stated in BNGP, the question of whether indefinite or prolonged detention would place Australia in breach of its international obligations is reasonably arguable. However, there has been no authoritative final ruling on this. I accept that immigration detention without a defined endpoint may be considered to be ‘cruel or inhuman’ in the circumstances, but it is still a contestable matter, and such a finding could not and should not be made without further evidence and analysis.

15. Article 9 provides that no one should be subjected to arbitrary arrest or detention. There is nothing arbitrary about the applicant’s detention, although I accept that detention without an endpoint is harsh.

16. In summary, I am not satisfied, based on the evidence and submissions before me, that indefinite or prolonged detention is in breach of international obligations under the ICCPR. However, I do not consider this issue to be determinative in any event because, as already noted, I am persuaded that indefinite or prolonged detention in the circumstances of the applicant’s case weighs heavily in favour of revocation. In other words, I do not consider that the question of whether this may also breach obligations under the ICCPR, and thereby tarnish Australia’s reputation, significantly adds to the weight that should be afforded to the legal and practical consequences of Australia meeting its international non-refoulement obligations.

    CONCLUSION

17. I am required to weigh these considerations in accordance with the Direction.

18. The protection of the Australian community and the expectations of the Australian community weigh against revocation, the other primary considerations are not relevant and the prospect of indefinite or prolonged detention, without a chronological end point, weighs strongly in favour of revocation. The impediments to the applicant returning to Sri Lanka, the applicant’s links to the Australian community and Australia’s international non-refoulement obligations (that impact of the latter being somewhat reduced by virtue of subsection 197C(3)) also weigh in favour of revocation, but not strongly so.

19. The respondent submits that countervailing considerations are outweighed by the considerable risks of allowing the applicant to remain, with the protection of the Australian community and expectations of the Australian community clearly favouring the refusal of revocation in this case. Given the seriousness of the offending and the fact that the Tribunal cannot be confident the applicant will not reoffend, the risk is unacceptable. In contrast, the applicant’s representative submits that the impact of indefinite or prolonged detention on the applicant is so significant in the particular circumstances of his case that this consideration outweighs the primary considerations of the protection and expectations of the Australian community. It is further submitted that risk of further offending has been mitigated by a number of protective factors such that the risk is not unacceptable that and the Australian community may be prepared to tolerate the risk in the circumstances of this case.

20. The balancing exercise in a case such as this is difficult. As stated by Colvin J in the VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the task is not directed to weighing indefinite detention against the seriousness of the applicant’s offending and other serious conduct. As his Honour observes, a comparison of that kind invites the significance of indefinite detention to be measured by reference to past offending. This would mean the more serious the past offending may justify the duration of the detention as a consequence of that offending. Relevantly, his Honour stated that:

    …the statutory purpose of executive detention under the Migration Act is to effect removal not to punish for past offending for which appropriate sentences are determined by the exercise of judicial power.[22]

    [22] [2022] FCA 921 at [19].

21. Accordingly, it is important to weigh each of the relevant considerations separately but in a holistic manner, having regard to the Direction and the overriding principles set out in paragraph 5.2.

22. While I accept that the protection of the Australian community and the expectations of the Australian community weigh against revocation, I am persuaded by the contentions of the applicant, based on the available evidence, that those considerations weigh moderately, rather than strongly, against revocation. For the reasons outlined in more detail above, I accept the evidence of the applicant about his remorse and intentions, which is supported by the evidence of Mr Watson-Munro, Reverend Jegasothy and the documentary evidence tendered from the summonsed material. Decision-makers can never be entirely satisfied about what will happen in the future, or about the nature and extent of the potential risk of harm. However, in weighing all the evidence in this case, I am satisfied that there are sufficient protective factors in place to mitigate any risk, such that this is not a case where the risk is ‘unacceptable’.

23. In this case it is a very significant factor that the applicant will be detained in immigration detention for a prolonged period. There is no evidence before me to suggest that the applicant will be released in the foreseeable future and, as matters stand, this is merely a speculative possibility at this stage. Prolonged detention without the prospect of an endpoint is likely to exacerbate the applicant’s feeling of hopelessness and, as Mr Watson-Munro opined, his mental health issues and possibly his suicidal ideation. In my view, this is a significant matter that outweighs the primary considerations of the protection of the Australian community and the expectations of the Australian community.

24. I am therefore satisfied that there is another reason to revoke the mandatory cancellation.  

    DECISION

25. I set aside the decision under review and substitute it with a decision that the cancellation of the applicant’s protection visa is revoked.

I certify that the preceding 193 (one hundred and ninety-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J.L. Redfern PSM

...............................[SGD].........................................

Associate

Dated: 22 December 2022

Date(s) of hearing:	14 - 15 December 2022
Solicitor for the Applicant:	Ms K Bones, Legal Aid NSW
Solicitor for the Respondent:	Mr K Eskerie, Sparke Helmore Lawyers