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

[2022] AATA 1717

SXZL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1717 (18 May 2022)

Division:GENERAL DIVISION

File Number(s):      2022/1593

Re:SXZL

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta 

Date:18 May 2022

Date of written reasons:       16 June 2022

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

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

Senior Member Dr N A Manetta

Catchwords

MIGRATION – delegate refused to revoke mandatory cancellation of visa – whether another reason to revoke mandatory cancellation – Direction 90 – primary considerations weigh heavily against applicant – prospect of indefinite detention if decision affirmed accorded substantial weight – full Federal Court decision in WKMZ considered – decision under review set aside

Legislation

Migration Act 1958 (Cth)

Cases

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119

Re WKCG and Minister for Immigration and Citizenship [2009] AATA 512; 110 ALD 434

Re HQNW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 87

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCFCA 55; 285 FCR 463

MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35; 283 FCR 525

Secondary Materials

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

REASONS FOR DECISION

Senior Member Dr N A Manetta

16 June 2022

1. After delivery of my oral decision and reasons, I received a request for written reasons.  These are the reasons I gave orally with minor amendments. 

2. This is an application by SXZL, to whom I shall refer as “Mr I”, seeking a review of the decision of the respondent’s delegate dated 24 February 2022. By this decision the delegate refused to revoke the mandatory cancellation of Mr I’s visa which had taken place earlier under section 501 of the Migration Act, 1958 (“the Act”). The cancellation had come about because Mr I had been sentenced to a fifteen-month term of imprisonment and was required to serve part of that sentence on a full-time basis in gaol: see section 501(3A).

3. The delegate tasked with conducting the internal review came to the conclusion‒ which on the evidence before me is undoubtedly correct‒ that the initial mandatory cancellation of the visa was justified; that is, Mr I had in fact been sentenced to a term of imprisonment of at least 12 months and was required to serve part of that sentence on a full-time basis in gaol. Accordingly, Mr I failed the so-called “character test”. The delegate had then to consider whether there was “another reason” for revoking the mandatory cancellation of the visa: see section 501CA(4)(b)(ii). In this regard the delegate was required to apply Direction no. 90 issued under section 499 of the Act[1]. The delegate applied the Direction and concluded that there was not “another reason” for the revocation of the cancellation decision.

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

   TRIBUNAL’S TASK

4. Hearing the matter afresh on the evidence before me, I must decide whether there is “another reason” for the cancellation of the visa to be revoked. In these matters, the Tribunal conducts a de novo hearing on the merits[2].  That is, I do not simply review the delegate’s decision for error: rather I hear evidence and receive written documentation, find primary facts and draw from them any appropriate inferences, and apply the Direction and other applicable law to the facts as I have found them to be. This type of hearing implies that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision on the evidence.  At the hearing before me, Mr Murphy appeared for Mr I; Mr Hawker, for the respondent.  I express my gratitude to them both for their measured conduct of their respective cases and for their assistance to me.

   [2] See, generally, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.

   STATEMENT OF CONCLUSION

5. I have decided to set aside the decision under review and substitute a decision that the cancellation of Mr I’s visa be revoked. I now turn to set out the background facts and my reasons.

   BACKGROUND FACTS

6. The background facts are as follows.  Mr I is a citizen of Somalia.  Born in 1993, he was 29 years of age at the time of the hearing before me.  He arrived in Australia in 2010 on a Class XP Subclass 200 Refugee Visa (which is not, however, a protection visa under the Act). 

7. In 1996, Mr I’s family had earlier fled Somalia on account of war.  He was just three years old at the time. The family left for a refugee camp in Eritrea, where Mr I lived for approximately 14 years. As I have said, he eventually came to Australia in 2010 on a refugee visa.

8. I accept Mr I’s evidence that he first began experimenting with, and abusing, alcohol and drugs while still in high school.  He said that he had struggled to adjust to life in Australia: he wanted to be accepted but was not. He said in this regard that he was made fun of at school because of his Muslim faith.  I do not doubt that the transition from life in the Eritrean refugee camp to life in Australia would have been challenging for him.

9. Mr I has committed a very large number of offences.  His police record appears in Exhibit R1 at pp 35ff.  In what follows, I shall not refer to all offending, but I have had regard to it all.

10. I note that the offending began soon after Mr I’s arrival in Australia. His first appearance was for possession of dangerous drugs in the Richlands Magistrates Court on 2 April 2013. Mr I continued to appear regularly in that Court until 18 March 2020.  I note that no conviction was recorded on that first occasion but a period of good behaviour of four months’ duration was required, and Mr I was referred to a drug diversion program. A recognisance of $300 was imposed. He did not attend the program and the recognisance was forfeited by order of the same court on 15 July 2013. He was fined a further $100.

11. On 10 December 2013 Mr I was found guilty of assaulting or obstructing a police officer. It appears that two counts of this offence were charged against Mr I. No conviction was recorded but he was fined $300.  On 30 June 2014 Mr I was found guilty of possessing drug utensils. A conviction was recorded and he was fined $300.

12. On 28 August 2014, Mr I was convicted of stealing petrol.  The penalty he received on this occasion was a conviction and a fine of $400. On 30 September 2014, Mr I was found guilty of possessing dangerous drugs. A conviction was recorded and he was fined $500.

13. On 8 January 2015, Mr I was found guilty of a number of offences involving assault and wilful damage to property.  These events stemmed from a violent assault by Mr I of his then partner and her cousin (who was with her at the time). He was convicted of all charges and a probation period of 12 months was ordered.

14. The police version of events is set out at Exhibit R2, pp 56 - 57.  I shall not recapitulate what appears in the police version; but I make clear that I accept it for the purposes of my review. It was a particularly serious incident involving clear physical violence and the use of a knife as well as significant abuse and property damage.  I note that on the day in question Mr I had been misusing alcohol.

15. In February and March 2015, Mr I was found guilty of unauthorised driving and of having produced false ID to the police.  He was convicted and fined on each occasion.

16. Pausing at this point, I would note that over the course of the years from 2013 to 2015, there had been a significant number of offences involving multiple court appearances, multiple convictions, and the imposition of many fines. 

17. There appears, however, to be a break of some three years before the next conviction. On 16 April 2018, Mr I was convicted of stealing. A conviction was recorded on that occasion and he was fined $400.

18. Mr I appeared in the same court just five and a half months later, on 28 September 2018. He faced on that occasion multiple charges involving separate incidents of fuel theft.  A conviction was recorded in respect of all charges, and he was ordered to perform community service. Later in 2018 and in 2020, Mr I had further appearances before the Court involving the possession of utensils for drugs. These resulted in convictions and fines.

19. On 18 March 2020, Mr I appeared before the Court in relation to a number of stealing offences. I have read the sentencing remarks carefully, which appear at Exhibit R1, pp 39ff.  Mr I had taken valuable watches or bracelets from various jewellery shops in busy malls and then pawned them at a Cash Converters outlet.  He also stole from a 7-Eleven convenience store.  Mr I’s offending included at least one incident of stealing after he had been released from a watch house where he had been detained.  Mr I accepted in his evidence before me that his aggressive behaviour had scared the store workers, shop patrons, and mall users.  At the time of sentencing, he had already spent some 64 days in custody.  He was resentenced for earlier offences and received three months’ imprisonment; on the new charges he was sentenced to 15 months’ imprisonment.  He was given parole immediately, however.  Mr I ought to have appreciated that he was now at a crossroads.  He had been before the Richlands Magistrates Court on multiple occasions and had spent some two months in presentence custody.  The lengthy sentence of imprisonment of 15 months was a clear and final warning that, although he had been granted parole immediately, he was effectively in a position where he needed to turn his life around or he would return to gaol. 

20. On 10 August 2020, Mr I was sentenced for a further stealing offence that had occurred in January 2020 during the spree I have earlier described. He was convicted, but no further punishment was imposed. On 10 August 2020 Mr I was also found guilty of contravention of a domestic violence order: a conviction was recorded and a fine of $500 imposed. I accept the version of events which appears in Exhibit R2 at p 132. It is yet another disturbing episode of reprehensible violence.

21. On 16 December 2020 Mr I was found guilty of being in possession of a stolen phone (on 17 September 2020).  A conviction was recorded and a suspended three-month sentence of imprisonment was imposed.  On 25 March 2021 Mr I was found guilty of contravening a domestic violence order (an aggravated offence) on 8 February 2021 by seeking to contact a former partner.  A conviction was recorded and a fine was imposed.

22. The offence of unlawful possession that took place on 17 September 2020 led, as I understand matters, to the suspension of Mr I’s parole and his re-incarceration for the offences for which he had received concurrent sentences of 3 and 15 months respectively, and to which I have earlier referred.

23. The evidence before me from Mr I suggests that he needed money to support his drug habit, which is itself of real concern.  I accept also that Mr I has a serious problem with anger so far as his relations with girlfriends/partners are concerned.  There have been multiple incidents of very serious violence and abuse.  He has only recently begun to engage in courses that will assist him with these issues.  He is very much at the beginning of what will be a lengthy rehabilitative process.

24. I shall not set out the various driving offences of which Mr I has been found guilty. I accept the respondent’s submission in this regard that these offences are not minor in that the misuse of a vehicle has the potential to result in very serious injury to other road users.

    APPLICATION OF DIRECTION 90

25. I turn now to consider and apply Direction no. 90. I set out the background to the Direction at paragraphs [32]ff of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119:-

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

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

    34 First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

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

    36  Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9.  I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight ‘generally’ to primary considerations over other considerations.”

26. I now turn to apply Direction no. 90. The first primary consideration I am required to consider is the protection of the Australian community. I note what appears at paragraph 8.1(1) of the Direction. I accept the Government’s commitment to protecting the Australian community from criminal activity or other serious misconduct by non-citizens. I note that I am to have regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they will be law-abiding and will respect important institutions and will not cause or threaten harm to individuals or the Australian community. I bear these principles in mind.

27. I must also give consideration to the nature and seriousness of Mr I’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct. Paragraph 8.1.1(1) directs me to have regard to a number of matters specified in subparagraphs (a) to (g) when I consider the nature and seriousness of Mr I’s criminal offending and other conduct to date. I note that the acts of violence inflicted upon Mr I’s then partners and the cousin should be considered to be very serious, involving, as they do, direct and significant physical assaults upon women.  They are to be considered very seriously irrespective of whether there was, or was not, a conviction. I proceed on the basis that there must have many occasions involving violence by Mr I against his partners or former partners apart from those to which I have already referred.  I bear in mind that he was regularly abusing alcohol and drugs at this time. I bear in mind also that domestic violence orders had been taken out against him. Furthermore I bear in mind that the incidents that I have been considering could not have been, on any plausible view of the matter, the only incidents of domestic/family violence. I do not doubt that the relationships Mr I has had with women have been violent on his side.  I take into account, therefore, a general pattern of violence in respect of women.  That is a very serious matter and I note the special attention Direction 90 now gives to family violence (by way of contrast to its predecessor, Direction 79). 

28. I must have regard to the sentences imposed by the Courts except where violence against women or family violence is involved. In Mr I’s favour it may be said that much of the earlier offending attracted fines only.  This would tend to indicate that the offending was judged by the Courts to be relatively minor. The imposition of the jail terms of 15 months and 3 months represented, however, a very serious escalation.  It is clear that the Court judged the offending on this occasion to be most serious.  I infer that the Court believed the offending was of its nature serious and also concluded on an examination of Mr I’s record that leniency would do him little good given his multiple court appearances in the past.

29. I refer again to Mr I’s road-offences history which has resulted in multiple convictions. I do not regard these offences as minor. It is well known that many people have suffered grievously as a result of other road-users’ inappropriate driving, including driving under the influence of alcohol or drugs.  Unintended consequences of the most serious kind can be caused by those not driving in conformity with the laws regulating road conduct.

30. I must have regard to the frequency of Mr I’s offending and whether there is any trend of increasing seriousness. Self-evidently, there has been a trend of increasing seriousness and there have also been multiple offences.  I note also that much of the offending appeared reckless and defiant: on one occasion, for example, Mr I left the watch house and immediately reoffended. It would appear that much of the offending is linked to the misuse of drugs and alcohol. Mr I indicated that the stealing offences were related to a need to support a drug habit. Some at least of the family violence offences have been preceded by immoderate drinking.  It is well known that there is a demonstrable link between misuse of drugs and alcohol and a recurring pattern of criminal offending.  This pattern is well established in Mr I’s case. There have also been many road-use offences. 

1. I am required to have regard to the cumulative effect of repeated offending and I do so.  I think this factor has particular application in relation to Mr I’s repeated acts of family violence. A victim’s psychological, as well as physical, health can be marred substantially and on an ongoing, and sometimes permanent, basis by such acts.

2. I must consider the risk to the Australian community should Mr I commit further offences or engage in other misconduct. I note, without setting it out, the principle that appears in subparagraph (1) of paragraph 8.1.2.  In assessing risk I must have regard to, “cumulatively”, two factors. I must have regard to the nature of the harm should the non-citizen engage in further criminal or other serious conduct. The nature of the harm in this case involves violent assaults upon women, unlawful deprivation of property, and misuse of vehicles whilst unlicensed and under the influence of alcohol and drugs. Self-evidently the risk of personal injury that might come from a further violent assault upon women and any injury to other road users are very serious matters. I regard deprivation of property as a serious matter as well. It does not involve a physical assault as such (although it does involve putting others in fear as the offence is committed); but deprivation of property is a strongly anti-social offence.  If these behaviours were to be repeated, the potential consequences would be very serious.

3. I must take into account, cumulatively, the likelihood of this serious misconduct recurring. I must assess what the risk is.  I have had regard to the reports prepared by Mr Newton in this regard and which were in evidence before me[3]. Mr Newton was also called to give evidence. I found Mr Newton to be a measured and reliable witness. I accept the conclusion that appears in his first report at [52] that at the present time Mr I poses no less than a moderate risk of further intimate partner violence.  That risk would increase if Mr I returned to alcohol and drug misuse but would trend steadily lower over time provided Mr I kept away from alcohol and drugs and undertook substantial training and rehabilitation addressing his violence. I accept the conclusion in his report at [57] concerning the low risk of violence he poses to others who are not in an intimate setting.  As I say, I accept that assessment, but I also bear in mind that one instance of family violence by Mr I has involved another person in the premises at the time and so there is always the risk of “spill-over” violence, so to speak, where a female partner happens to be in the company of another person and Mr I seeks to harm that partner.  I accept also the assessment at [62] that Mr I poses a low to moderate risk of other types of offending. I take into account all these risks.

   [3] Ex A1, pp 73ff.

4. Paragraph 8.2 requires me to have regard to family violence. I accept the respondent’s submissions at paragraphs [37] to [42] of its Statement of Facts, Issues and Contentions concerning family violence and its significance in this case.  There have been many instances of violence.  I do not accept Mr Murphy’s submission that I should not have regard to the police reports appearing in Exhibit R2.  I believe it is appropriate to have regard to police reports, particularly where there are a number of instances of violence.  In Mr I’s case, the reports give an overall impression, or sense, of the types and frequency of harm being reported to police by his victims.  Of course, in any particular instance, it may be the case that a police report is defective for one reason or another or gives an unduly unfavourable account of events vis-à-vis the perpetrator.  But it seems to me that when one is endeavouring to form a view of a person’s behaviour overall, it is reasonable to use police reports as giving, at least where they are not actively contradicted by reliable evidence to the contrary, a fair overall account of the violence engaged in by that  person. I have approached the matter in this way in this case. The police reports clearly show a pattern of regular physical and verbal abuse towards partners regularly compounded by Mr I’s intoxication.  I accept their accuracy and I believe that this consideration counts very substantially against Mr I.

5. I must take into account the best interests of minor children in Australia. I do not believe I should take into account the interests of Mr I’s stepchild, J, as a factor weighing in his favour. 

6. I accept that Mr I has a positive relationship with a number of nephews and nieces in a large family. I accept also that his plan is to reside with his parents, if released, and that his nephews and nieces will visit that house frequently.  I believe Mr I will do his best to participate meaningfully in their lives.  There are, however, countervailing factors so far as this consideration is concerned.  First, I bear in mind that the relationship is not a parental one, and the children in question have loving parents. Mr I will be involved with them in the main when they visit their grandparents, and he will have limited time for that given his planned work commitments. The grandparents, too, will continue to have a role, as extended family members, in the upbringing and nurturing of these children. Secondly, I would note that during most of his adult life Mr I has had serious drug and alcohol misuse problems. I think that the interests of these children will be adversely affected if Mr I returns to alcohol and drug misuse.  That risk remains a distinct possibility at the present time. Mr I has not engaged yet in substantial rehabilitation for his drug and alcohol misuse. Until that occurs, the potential for an adverse effect on these children remains. I do accept that Mr I’s parents have indicated that they will not tolerate the presence of alcohol or drugs in their home.  Alcohol or drug use is contrary to the tenets of the Muslim faith to which they adhere strongly. Nevertheless, the risk that Mr I will abuse their trust and revert to drug and alcohol abuse remains.  All in all, in my opinion the interests of these children should be counted as a neutral factor in my review.

7. Paragraph 8.4 requires me to have regard to the expectations of the Australian community. I do so. I note that these are “embedded”, so to speak, in the Direction itself and that I am not to assess or evaluate these for myself.  I note further that the expectations apply irrespective of whether Mr I poses a measurable risk of causing physical harm to the Australian community. I note that this consideration directs me to proceed on the basis that the Australian community expects Mr I’s visa to remain cancelled given acts of family violence and the commission of serious crimes against women. I bear this consideration steadily in mind and I note that it counts substantially against Mr I.

8. I must have regard to so-called “other” considerations. These are listed non-exhaustively in paragraph 9(1) of the Direction. The first of the listed considerations is international non-refoulement obligations.  Paragraph 9.1(6) provides as follows:-

   “It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application.  The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen’s favour that claimed harm will occur and make a decision on that basis.”

9. The applicant submitted a quite detailed submission in this regard in support of its prime contention that Mr I would face in Somalia the prospect of being targeted by a terrorist group known as Al-Shabaab.  I am satisfied that I was not in a position at the conclusion of the hearing to decide whether Mr I is owed protection obligations.  I have decided as part of my review that this is an appropriate case in which to proceed on the assumed basis that Mr I would face an appreciable threat of physical harm if he were returned to Somalia. 

10. It also follows on this assumption that he is owed non-refoulement obligations.  Following the recent amendments to the Act, it also follows, on this assumption and on the further assumption that Mr I would make a protection visa application, that Mr I may not be refouled to Somalia under Australian law: see s 197C(3).  I add for the sake of completeness that I think it is clear Mr I would apply for a protection visa in order to avoid refoulement to Somalia.

11. It follows, then, on this assumption, that if I were to affirm the decision under review, Mr I would apply for a protection visa and be found to be owed non-refoulement obligations.  He would continue to be confined in immigration detention whilst a solution to the difficulty posed by the inability to remove him to Somalia was explored. 

12. That apparent impasse could only be resolved in one of three ways. The first way involves Mr I receiving a protection visa on an application made by him. As I have said, I think it is likely that Mr I will make such an application to avoid being refouled to Somalia if I affirm the decision under review. 

13. I believe it is appropriate for me to engage with the likely consequences of that application in other than a speculative way to the extent that the evidence before me suggests an answer. In my opinion, there are two clear possibilities emerging from the evidence. First, I think it is clear on the evidence before me that Mr I does at the present time pose at least a moderate risk of violence in an intimate setting and a low to moderate risk of violence in a non-intimate setting, to use Mr Newton’s phraseology.  Given the level of violence involved, I think he is “a danger” to the Australian community at the present time in so far as he poses “a real or substantial risk of harm to one or more members of the Australian community”[4].  If that is the case, then a protection visa may not be granted to him by virtue of section 36(1C)(b) of the Act.  This would mean that Mr I’s application for a protection visa would have to be rejected as a matter of law.

    [4] This is the well-known and often used “test” appearing in Re WKCG and Minister for Immigration and Citizenship [2009] AATA 512; 110 ALD 434 at [31]. But I would also refer here to what I put in Re HQNW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 87, at [61]ff concerning this decision.

14. If I am wrong in that conclusion, however, I note that the Minister has a discretion under section 501 to refuse Mr I a protection visa. As the plurality in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCFCA 55; 285 FCR 463 pointed out at [124], one may infer that the rejection of Mr I’s protection visa application would occur on the same character grounds that involved the decision not to revoke the cancellation of his refugee visa. The plurality’s observations at [124] are 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.”[5] (emphasis in the original)

    [5] The applicant also referred me to Wigney J’s observations in MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35; 283 FCR 525 at [55].

15. It follows from these dicta that it is reasonable to suppose that Mr I’s protection visa application could well be rejected on character grounds.  In both these scenarios, therefore, the protection visa would be refused and the impasse to which I have referred would not be broken in this way.  At least it is a very realistic possibility that that would prove to be the case.

16. The second way in which the impasse might be broken is by the securing of a so-called third-country option.  This would require the Australian Government to find a country other than Somalia to receive Mr I. No information has been placed before me to suggest that it is likely that a third country will be found and no information concerning the likely timeframe within which that option would be explored and then discarded if it had not proved successful by that date. I must say it seems somewhat counterintuitive to suppose that a third country would be willing to take in a refugee who has a significant criminal record involving violence and drug abuse when the Australian Government will not tolerate his presence here.  Accordingly, I do not have any confidence that in the short term such a solution will be found.

17. The third way in which the impasse might be broken is by the grant to Mr I of a visa under section 195A, or another section of the Act, to permit him to reside in the community. Again, I have no evidence before me that this is a likely scenario in the short term. I do not assume that the Minister would fail to exercise that power over the longer term if Mr I were still in detention at that point because that would be to impute to the Minister an intention to act in an inhumane way; that is, to maintain Mr I’s detention on a quasi-permanent basis. But I cannot proceed on the basis, I believe, that there is any short timeframe at the expiration of which the Minister will act to end Mr I’s detention if other lawful solutions leading to Mr I’s departure from Australia have not been found.

18. Engaging in this way, as I accept I am, with the likely consequences of any decision I make to affirm the decision under review, it is clear to me that a decision by me to affirm could well lead to a period of indefinite detention. I use the word indefinite in the same way that the plurality in WKMZ used it; namely, as connotating an uncertain period that might prove to be extended.

19. In my opinion, this is a matter that I must weigh very seriously in Mr I’s favour.

20. I do not believe that the consideration of “extent of impediments if removed” requires consideration in this case because the more likely scenario in my opinion is that Mr I will not be removed to Somalia: indeed, his compulsory removal to Somalia would not be authorised following the recent amendments to the Act and on the assumptions to which I have earlier referred. I cannot weigh the “extent-of-impediments” consideration in respect of third countries to which Mr I might be removed without knowing what those countries are. I think that would be a purely speculative and misleading exercise and so I do not weigh this consideration in Mr K’s favour. I regard the “impact-on-victims” consideration as neutral in this case in the absence of evidence.

21. I must also weigh Mr I’s links to the Australian community. Were I to affirm the decision under review, a likely possibility is a period of extended immigration detention followed at some point by the exercise of the Minister’s power to grant a visa or the securing of a third-country option.  The loss of liberty that this continued detention implies encompasses the impact on Mr I in terms of maintaining contact with those members of his family with whom he is close and so I do not weigh this consideration separately.

    WEIGHING THE CONSIDERATIONS UNDER THE DIRECTION

22. The foregoing analysis shows that when it comes to weighing the considerations under the Direction, I am left, effectively, with the task of balancing, on the one hand, the primary considerations none of which favours Mr I and which in fact substantially disfavour him, against, on the other hand, the very important consideration of indefinite deprivation of personal liberty.

23. As I have said, the recent amendments to the Act imply that there is no longer a statutory authority for the removal of Mr I to Somalia on the assumption that he applies for a protection visa and is found to be owed non-refoulement obligations in respect of that country: see section 197C(3).  It follows that there is no longer a statutory obligation to remove Mr I to Somalia, as there formerly was, that would end his detention.

24. I believe that in deciding this case I should weigh carefully the observations of the plurality in WKMZ. These emphasised the importance of personal liberty as a fundamental common law right (see, for example, at [123]). The continuing detention of Mr I on an indefinite basis, although not on a quasi-permanent basis for the reasons I have explained at [47], is a matter of real concern and one to which it is only proper that I pay careful attention.

25. In weighing carefully the individual circumstances of this case, I appreciate that all the primary considerations and the very nature of the criminal offending and misconduct (both charged and uncharged) tend strongly towards affirming the decision under review. I accept that “generally” primary considerations ought to prevail over other considerations: see paragraph 7(2) of the Direction. I accept also that the authority of WKMZ does not require me inevitably to set aside a decision where indefinite detention is implied by a Tribunal decision affirming the decision under review. 

26. Nevertheless, it is appropriate in my opinion to give substantial weight to the consideration of indefinite deprivation of liberty.  I would note that the facts of this case already give rise to some serious concerns in this regard. On my review of the file, it appears that the visa cancellation occurred on 23 December 2020. Submissions by Mr I requesting revocation of the cancellation decision were filed on either 5 or 6 January 2021. From that point on, it would appear that it took 13 months or so for the delegate to reach his or her decision on 24 February 2022.  Mr I was released from gaol and taken immediately into detention in April 2021, or thereabouts, as I understand the matter.  The delegate’s decision is dated 24 February 2022 as I have said.  This implies a considerable period during which Mr I was held in immigration detention with no statutory right to approach this Tribunal unless and until an adverse decision was reached.  It seems to me that a decision on Mr I’s application ought to have been made promptly and certainly within a very short time after his release from gaol since his liberty from that point on was deprived by virtue of the Act and not by virtue of any sentence of imprisonment.  The delay of a further ten months in the reaching of a decision in this matter after Mr I was transferred to immigration detention raises clear concerns. 

27. If I were to affirm the decision under review, it is quite likely (on the assumption that paragraph 9.1(6) authorises me to make) that Mr I would be faced with a further indefinite period of detention. As I have said, the prospect of continued deprivation of liberty is a very serious consideration to weigh. I make the obvious point that immigration detention is not intended to be a further form of punishment outside the punishment prescribed by our courts through the criminal justice system.  It is, rather, intended to be strictly defensive of the interests of the Australian community.  Clearly, the impact detention has on an individual is profound in denying him or her the basic right of personal freedom.

    CONCLUSION AND FORMAL DECISION

1. I have weighed the primary considerations very carefully, but in my opinion the correct or preferable decision, after I have applied Direction no. 90, is to find that in all the circumstances of this case there is “another reason” under section 501CA(4)(b)(ii) to revoke the cancellation decision. Having reached that conclusion, I shall set aside the decision under review and substitute a decision that the cancellation of Mr I’s visa be revoked.

   
   …………[Sgnd]……………

   Legal Administrative Assistant

   Dated: 16 June 2022

Date of hearing:	3 and 4 May 2022
Advocate for the Applicant:	Mr Julian Murphy, Asylum Seeker Resource Centre
Advocate for the Respondent:	Mr Matthew Hawker, Sparke Helmore Lawyers