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

[2022] AATA 3149

TKCC and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3149 (17 August 2022)

Division:GENERAL DIVISION

File Number(s):      2022/4357

Re:TKCC

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:17 August 2022

Date of written reasons:        15 September 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 – mandatory cancellation of visa – Bhutanese applicant most recently commits serious sexual offence against mother – primary considerations all favour affirming decision under review – applicant unlikely to be returned to Bhutan as applicant is of Lhotshampa ethnicity – prospect of indefinite immigration detention – Federal Court authority of WKMZ referred to and applied - decision under review set aside

Legislation

Migration Act, 1958 (Cth)

Cases

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

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

Secondary Materials

Direction No. 90 – Migration Act 1958 – Direction under section 499: 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

15 September 2022

1. After delivery of my oral decision, I received a request for written reasons, which I now publish.  I note that the hearing concluded only two days before the final date by which I was required in law to deliver my decision.  What follows is the set of reasons I gave orally, with some amendments. 

2. This is an application by TKCC (to whom I shall refer in these reasons as “the applicant”, as there is a confidentiality order in place), seeking a review of a decision of the respondent’s delegate dated 13 May 2022. By his or her decision, the delegate declined to revoke the mandatory cancellation of the applicant’s humanitarian visa.[1] The mandatory cancellation had taken place earlier in accordance with the provisions contained in sections 501(3A) of the Migration Act, 1958 (Cth) (“the Act”). By these provisions, the respondent is required to cancel a visa when a visa-holder is sentenced to a term of imprisonment of at least 12 months’ duration and required to serve at least part of that sentence on a full-time basis in jail.  This was undoubtedly the case here.

   [1] A Woman at Risk (Class XB)(subclass 204) visa.

3. The applicant sought an internal review of the decision to cancel his visa.  The delegate tasked with the internal review was required to address two questions; namely, (1) whether the applicant passed the so-called “character test” under the Act, and (2) if not, whether there was “another reason” for the cancellation decision to be revoked: see section 501CA(4)(b). Clearly, the applicant did not pass the “character test”, as defined, since he had been sentenced to a term of imprisonment exceeding 12 months: see section 501(6)(a) and (7)(c). 

   TRIBUNAL’S TASK

4. The only question of substance before the delegate, and before me, was the second question; namely, whether there was “another reason” for the cancellation decision to be revoked.  In arriving at his or her conclusion, the delegate was required to apply Direction 90,[2] issued under section 499 of the Act. I, too, must apply the Direction. The Direction specifies a number of considerations which need to be evaluated and weighed. Paragraph 9 of the Direction makes it clear that the so-called “other matters” I should address are not exhaustively listed in that paragraph.

   [2] Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

5. The evaluation and weighing of the various considerations must be undertaken by reference to the individual circumstances of the case and, self-evidently, in conformity with such instructions or guidance as Direction 90 itself provides.  If, on balance, the weighing of the various considerations does not favour a revocation of the cancellation decision, then there will not be “another reason” for the cancellation decision to be revoked: the decision would be affirmed by this Tribunal in that case.  If, however, on balance, the weighing of the various considerations favours a revocation of the cancellation decision, there would be in this circumstance “another reason” for the cancellation decision to be revoked.  The decision under review would then be set aside and a new decision substituted revoking the visa cancellation decision.

6. In cases like this, the Tribunal proceeds de novo, to use the Latin expression. This means that I must consider all the evidence afresh and reach the correct or preferable decision on the basis of the evidence adduced before me.  This implies also 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 adduced before me; equally, I may set aside the decision under review, notwithstanding the absence of a discernible error in the delegate’s reasons, if that is the correct or preferable decision.

   STATEMENT OF CONCLUSION

7. In this case, I have decided, after applying Direction 90, that there is “another reason” for the cancellation decision to be revoked.  Accordingly, I shall set aside the decision under review and substitute a decision that the cancellation decision be revoked.

   REASONS

8. I now set out my reasons for this conclusion. I first summarise the background facts and then turn to an application of the Direction.

9. The applicant was born in 1996 in one of a number of refugee camps in Nepal, as were all his siblings.  The camps accommodated large numbers of fleeing Bhutanese inhabitants, known as Lhotshampas (or “Southern Borderlanders”[3]).  On the evidence before me, both the applicant’s mother and his father were born in Bhutan and were of Lhotshampa ethnicity.[4]  The UNHCR material before me suggests that the applicant’s mother first arrived in the camp in 1992.[5]  In a 2010 divorce decree dissolving the applicant’s parents’ marriage, there is a reference to the applicant’s mother and father having married some 17 or 18 years earlier.[6] This may mean that the applicant’s parents married in the refugee camp. In any event, the evidence before me shows that a decree of divorce was granted in 2010 in proceedings initiated by the applicant’s mother’s in, I assume, Nepal. The UNHCR material also refers to the applicant’s mother having been the victim of domestic violence,[7] and this mistreatment is also referred to in the divorce decree. After the divorce, it would appear that the applicant’s father remarried. He now lives in New Zealand.

   [3] See M Hutt, Unbecoming Citizens, OUP (Third Impression 2007), p 4.

   [4] Exhibit R2, pp 30 and 32.

   [5] Exhibit R2, p 32.

   [6] Exhibit R2, p 40.

   [7] Exhibit R2, p 47.

10. The UNHCR material further records that the applicant’s mother and the applicant were accepted as Lhotshampas who had fled Bhutan and arrived in the refugee camp on 22 July 1992.[8] Refugees, including the children of refugees born in the camp, were not recognised as Nepalese citizens by the Government of Nepal despite having a Nepali-speaking background.

[8] Exhibit R2, p 45.

11. Reports suggest that up to 100,000 Lhotshampas were expelled from, or forced to flee, Bhutan.[9]  A large number of these lived in Nepal, from the early 1990s onwards.  This number included the applicant’s family.

[9] See the sources mentioned at fn 11, below, and see also Exhibit R2, p 184.

12. It is convenient at this point to say something about the mass exodus of Lhotshampas from Bhutan.  Lhotshampas, whether born in Bhutan or not, form an ethnically and culturally distinct group whose first language is Nepali. The applicant, for example, speaks Nepali but does not speak the official language of Bhutan, “Dzongkha”.

13. The research I have conducted in the very limited time available to me before my decision had to be delivered indicates as follows.  The Bhutan Citizenship Act 1985, part of which was in evidence before me,[10] together with the unfair conduct of a census in 1988, led to serious friction between the Bhutanese Government and the Lhotshampas.  A census was apparently conducted in 1988 in the south of the country, where the Lhotshampas mainly lived. Unless a record dating from 1958 could be produced, those conducting the census refused to register the Lhotshampa residents in question as Bhutanese citizens.[11]  The passage of the Bhutan Citizenship Act and the subsequent census should be understood against the background of a program being pursued by the Government of the day in which it would appear the Lhotshampa Nepali-speaking minority felt increasingly discriminated against.[12]

[10] Exhibit R1, at pp 61ff.  Certain template forms, which do not bear on the questions I must address, appear to have been omitted form the English version in Exhibit R1.

[11] Section 3 of the Bhutan Citizenship Act 1985 provides that a person permanently domiciled in Bhutan on or before 31 December 1958 and whose name is registered in the census register maintained by the Ministry of Home Affairs shall be deemed to be a citizen of Bhutan by registration. See also the following sources on the civil unrest and exodus:

[12] See M Hutt, op cit, at pp 163-164.  The material before me also suggests the attitude of the Bhutanese Government to the Lhotshampas remains discriminatory today: see Exhibit R2, p 143.

14. The mass exodus was particularly concerning.  First, its size was quite astonishing – up to 100,000 people – and clearly indicated a very serious internal disturbance within Bhutan.  Secondly, the difficulties in the refugee camps in Nepal were such that the international community, in the face of the Bhutanese Government’s intransigence, was required to intervene to assist in the humanitarian resettlement of the refugees worldwide. Australia, along with other western countries such as the United States, Canada and the United Kingdom, resettled a number of Lhotshampas.  The applicant’s mother was resettled in Australia, together with her children (including the applicant), on a “woman at risk” visa.

15. The evidence before me further suggests that there are some 6,000 Lhotshampas (or so) still living in Nepal in refugee camps.  Approximately one-third of these wish to return to Bhutan, but it would appear there has been no agreement by the Bhutanese Government to re-integrate them despite their decades-old plight.[13]

[13] See for example Exhibit R2, pp 136 and 184.

16. I understand that in 2008, Bhutan transitioned from an absolute monarchy to a democracy, but it would appear that the difficulties faced by the Lhotshampas who fled Bhutan remain.  As I understand matters, there is still no agreement between the governments of Nepal and Bhutan concerning the Lhotshampas wishing to return.  I would infer from this that the Bhutanese Government still refuses to accept that those Lhotshampas who fled Bhutan, or their children born outside Bhutan (which is the applicant’s case), have a right to re-enter Bhutan. which they would have, presumably, if they were recognised as Bhutanese citizens.

17. I think this background is important in this case because the delegate proceeded on the basis ‒ and this position was reiterated to the Tribunal ‒ that the applicant was a Bhutanese citizen and had a right to re-enter Bhutan.  In the respondent’s submission, the consequence of a decision by me to affirm the decision under review and failing the grant of any further visa to the applicant would lead to the applicant’s removal to Bhutan.  I shall come to that conclusion in due course.  At this juncture, it is sufficient to note that the delegate did not address the situation where the applicant would be refused entry to Bhutan by the Bhutanese authorities. 

18. The respondent’s Statement of Facts Issues and Contentions (“SOFIC”) sets out in very helpful detail the applicant’s criminal offending.[14]  I accept the respondent’s submissions in the SOFIC in relation to the offending, including conduct that has not been the subject of a criminal charge.  I make that explicit for the purposes of my review, and in the interests of keeping these reasons within reasonable bounds, I shall not reproduce the submissions.

[14] Exhibit R3, paragraph 29.

19. In particular, I note that there have been a number of instances involving serious violence inflicted by the applicant upon family members, despite the making of intervention orders designed to deter the applicant from attending the family premises and interacting with family members.  These have included serious assaults upon his brother, including the use of a knife and the threat (conveyed to police officers who intervened) that the applicant wished to “chop up his brother and drink the soup”.  I refer also to what appears at paragraph 29.2(a) and (b) of the respondent’s SOFIC. 

20. Of particular concern in this case is the commission by the applicant of the offence of unlawful sexual intercourse against his mother.  The District Court of South Australia’s sentencing remarks were in evidence before me.[15]  I accept what appears in them.  I note, in particular, that despite the reference in the remarks to the applicant’s trying to have intercourse with his mother, he was found guilty of unlawful sexual intercourse, or rape.  An essential ingredient of this offence requires penetration, as I understand matters, and I proceed on the basis that the applicant did penetrate his mother’s vagina and commit the offence. 

[15] Exhibit R1, at pp 31ff.

21. The circumstances of the offending are detailed in the remarks, which, as I have said, I accept..  The applicant had been staying at the family home.  He had been drinking and was in fact drunk according to the sentencing remarks.  He had also been sniffing glue. These habits had become a regular feature of the applicant’s life. The applicant had been watching a film with sexual themes at the time.  He sneaked into his mother’s bedroom, where his younger sister was also sleeping.  He cut away the back of his mother’s pyjamas and, according to the judge, “tried to have” intercourse with her.[16]  She awoke in shock and shouted for the applicant to leave.  She suffered bruising. Once again, I note that despite the apparent reference to attempted intercourse, I am satisfied that the offence of unlawful penetration must have occurred.  The offence in question also contravened an intervention order and constituted a failure to comply with a bail agreement. Those are also serious matters.  The applicant was 21 at the time. The Court referred to the applicant’s history of violence towards family members, including his mother.

[16] Exhibit R1, at p 32.

22. The Court referred to the devastating effect of the offending on the mother, and but for the plea of guilty, a nine-year term would have been imposed. A thirty per cent discount was granted on the plea of guilty, leading to the imposition of a sentence of six years and four months.  A non-parole period of four years was fixed. The sentence was specified to begin on 14 April 2017.  In his evidence before me, the applicant indicated that an application he had made for parole had been refused. He will be eligible for release, having served his full sentence, on 14 August 2023; that is, in approximately one year’s time (as at the date of my oral decision).

23. By way of background, I further note that the sentencing Court referred to the applicant having a very limited employment history in Australia, and it would appear none of it has involved paid employment.  I accept that.  His grasp of English is limited, as the sentencing Court remarked.[17] 

[17] I would note for the record that the applicant declined the offer of a Nepali-speaking interpreter before me.

DIRECTION 90

24. I come now to Direction 90, which I must apply. I customarily refer to earlier observations of my own appearing in paragraphs [32]ff of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119, and I do so again here:

“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.”

25. I am required under the Direction to have regard to certain primary considerations. The first of these is the protection of the Australian community. I must have regard to the principles set out in paragraph 8.1(1). These require me to bear in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity. I am required to have “particular regard” to the principle that remaining in Australia is a privilege that Australia confers in the expectation that non-citizens remain law abiding, amongst other things. I bear these principles in mind.

26. I am required by paragraph 8.1(2) to give consideration to (a) the nature and seriousness of the applicant’s conduct to date; and (b) the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

27. Turning first to the nature and seriousness of the conduct, I must have regard to matters that appear in subparagraphs (a) to (g) of paragraph 8.1.1(1).  I note that crimes of violence and/or sexual crimes of a violent nature against women or children, and acts of family violence are all specified to be types of conduct that must be viewed very seriously. I need hardly say that the crime of rape perpetrated by the applicant against his mother was of the most serious nature. It was violent and sexual; it was a crime against a woman; and it constituted an act of family violence. I further note that the crime would have had a particularly devastating effect upon the victim because the perpetrator was not a stranger, but her own son. The sentencing Court referred to that impact. Moreover, the crime was committed in the family home while the applicant’s mother was sleeping; and, furthermore, it was committed in the vicinity of a child (the applicant’s younger sister) while she was in the room. Finally, the offending took place in breach of bail conditions and an intervention order.  All the circumstances of this offending make it of the most serious kind.  I wish expressly to emphasise that. 

28. I do not ignore the earlier instances of violence involving the applicant’s siblings and the applicant’s mother. All this offending was extremely serious. I also accept that the applicant has resisted arrest in the past, which is a strongly anti-social act.

29. The Direction does not require me to have regard to the sentence imposed by the District Court, given the type of crime involved (cf subparagraph (c)), but I note that the sentence imposed was a lengthy one.

30. In my opinion, there has been now a frequency in offending (since I should also take account of offending that has not been formally charged before the courts) and, I believe, a trend of increasing seriousness. Clearly, the rape marked a very serious escalation in the applicant’s offending. I am required to have regard to the cumulative effect of repeated offending. I do so. The effect of violence and finally rape by her own son on the victim would have had a profound effect upon her, and this is referred to in the sentencing remarks.

31. Viewed objectively, the rape marked a profoundly degrading and hostile, as well as violent, attack upon the victim.  There had been no argument or circumstances of conflict leading up to the attack. Rather, the sentencing remarks record that an abuse of alcohol and glue led to the assault.

32. I am to have regard to the risks to the Australian community should the applicant commit further offences. I note expressly what appears at paragraph 8.1.2(1). I note that I am to have regard to the Government’s view that the community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.  Some conduct and resultant harm may be so serious that any risk of repetition may be unacceptable.  I beat these principles in mind.

33. I am also to have regard to, “cumulatively”, two matters.  First, I must have regard to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct: paragraph 8.1.2(2)(a). Secondly, I must have regard to the likelihood of his engaging in further criminal or other serious conduct taking into account the matters that appear in subparagraphs (i) and (ii) of paragraph 8.1.2(2)(b).

34. The first of these matters requires me to assume the applicant engages in further criminal or other serious conduct. I regard the threat to the siblings, or anyone else for that matter who is subject to assault, as very serious. I regard the threat of harm to the applicant’s mother (or any other woman) on the assumption the applicant committed a further offence of rape to be of the most serious kind.  Lives may be ruined beyond all rehabilitation by sexual assaults, particularly (but not only) when they are committed by family members.

35. I must have regard to, “cumulatively”, the likelihood of the applicant engaging in such conduct again. He is, of course, confined to jail and, as I understand matters, is not due to be released for another year.  There is the possibility of parole, but the applicant in his evidence did not indicate that he had any further application planned, and I note that he is currently undertaking a sexual offenders’ rehabilitation course in gaol.  I have assumed, therefore, that he is unlikely to be released for at least six months (and if he is released at that time, it will be on parole); but equally I have also assumed that he will be released into the community in August 2023 at the latest if I set aside the decision under review.

36. I doubt strongly that the applicant will re-approach his mother once he is in the community, given the intervention orders in place. I appreciate that he has breached intervention orders before.  His evidence before me, which I accept, is that he wishes to apologise to his mother in writing if permitted.[18] I note that the applicant’s rape of his mother was accompanied by intoxication brought on by alcohol consumption and glue-sniffing.  I doubt strongly that he will see his mother except in controlled circumstances (namely, where the intervention order is lifted, the applicant’s mother wishes to have the contact, and a male adult to act as a protector is present).  I think that violence against the male siblings is also unlikely.  The violence occurred when the applicant was still a teenager, and the sibling involved was younger than the applicant.  All male children are now adults.

[18] I understand that, at the present time, any contact with the mother may be prevented by the intervention order.

37. That does not exhaust, however, the categories of potential victims.  The violence in this case has been confined within a family, it is true; but any person having an intimate relationship with the applicant is potentially at risk, as are other community members (so far as violent altercations are concerned).  I note that the applicant is undertaking a sexual offenders’ program.  His final success or otherwise in that course cannot be predicted at the present time. 

38. The violence expressed by the applicant has no doubt been influenced by the misuse of alcohol, marijuana and glue, and I note that these physical habits, to the extent that they represent an addiction, have been broken by a long period of abstinence.  I do note, however, the discovery of illegal home-brew in the applicant’s cell.  But this one incident over many years of incarceration does not cause me to doubt that the applicant is no longer physically addicted.

39. Alcohol or drug dependence constitutes a multifaceted and complex matter, however, with both physical and psychological aspects.  The ending of a physical dependence does not necessarily mean, of course, that there is no risk of reversion or relapse.  The applicant will require a strong supporting environment and also, I believe, extensive counselling. In this connection, I believe the applicant is likely to need to address the effect of any trauma he has experienced in the camp, which included the witnessing of extreme violence between his parents, and which included, more concerningly, his own rape.

40. All in all, it is extremely difficult, in the absence of a reliable and current expert’s report, to estimate today the risk of the applicant’s reoffending on release from gaol, but I would accept that this risk is at least moderate.  I note further that the Direction requires me to take into account such rehabilitation as has been achieved by the time of my decision[19], which implies that I should not base my decision on possible future outcomes without firm evidence. 

[19] Paragraph 8.1.2(2)(b)(ii).

41. I am required to have regard to family violence committed by the applicant, as the second primary consideration: see paragraph 8.2.  I do so. I note that the Direction, unlike its predecessor, requires acts of family violence to be separately addressed.  That is important.  I do not doubt that there has been a frequency in the conduct, and I do not doubt that there has been a cumulative effect of repeated acts of family violence: see subparagraphs (a) and (b) of paragraph 8.2(3).

42. I accept that the applicant’s rehabilitation is partial only at the present time, and I accept that efforts to address alcohol and drug and glue misuse have not yet occurred.  I doubt that the applicant appreciates the impact of his behaviour on his victims and those witnessing the attacks: cf paragraph 8.3(c)(ii).  The applicant did not deny any of the offending before me and, to that extent, clearly accepts responsibility for it.

43. All in all, and having particular regard to the offence of rape, I believe this consideration weighs very heavily against the applicant.

44. I do not regard the best interests of minor children in Australia as a consideration that arises in this case. The applicant has a younger sister. She is now 16 and will be 17 at the time of the applicant’s release.  I do not have any evidence before me that suggests there is any likelihood of a rapprochement between them.  I do not believe that the applicant enjoys any relationship with another minor child at the present time (nephews and nieces). Were he to remain in Australia, he might develop such a relationship, but it is entirely speculative at the present time and I must also bear in mind that, were he to resort to alcohol, marijuana or glue, it would be better for these minors not to have contact with him in their own interest.  Accordingly, I regard this consideration as neutral.

45. This leaves the final primary consideration of expectations of the Australian community: see paragraph 8.4. I believe here that the expectations count very strongly against the applicant. I note what appears at paragraph 8.4(1) concerning the expectation that the Australian community would expect “as a norm” that the applicant be removed.  I note further that acts of family violence, as well as serious crimes against women and children, are marked out specifically in paragraph 8.4(2) as offences which lead to an expectation that the Government should cancel the applicant’s visa.  It is self-evident that the expectations count strongly against the applicant.

46. I must consider so-called “other” considerations.  These are listed non-exhaustively in paragraph 9.

47. I wish to come immediately to a very important consideration.  In my opinion, on the evidence before me, it is unlikely that the applicant would be accepted by the Bhutanese Government as a citizen who might be granted entry to Bhutan.  He has no legal right, on the evidence before me, to reside in Nepal and, like the delegate, I regard this as an irrelevant possibility.

48. The delegate proceeded on the basis that the applicant was a citizen of Bhutan who had, therefore, a legal right to re-enter the country.  There is no evidence before me of the delegate’s reasoning process except a reference to the Bhutan Citizenship Act 1985, to which I have earlier referred.  

49. I was not afforded any expert opinion in respect of Bhutanese law, nor, importantly, concerning Bhutanese Government practices in relation to legal rights.  It is very unsafe, in respect of some countries, to proceed on the basis that rights are necessarily respected as given by the law.  I note that the Lhotshampas left Bhutan precisely because a census was being undertaken in a way that would see many of them denied appropriate recognition as citizens.  Many of those fleeing must have lived in Bhutan for a considerable period of time.  Whatever effect section 2 of the Bhutan Citizenship Act 1985 has theoretically,[20] it did not protect the Lhotshampas.

[20] This section provides that a person both of whose parents are citizens of Bhutan shall be deemed to be a citizen of Bhutan.

50. Moreover, section 6 of the Bhutan Citizenship Act 1985 contains provisions which remove the unqualified right of children to Bhutanese citizenship when either parent takes the citizenship of another country. Such children must remain permanently domiciled in Bhutan to preserve their citizenship, which is not the applicant’s case of course.  I was not provided with evidence concerning the meaning and effect of this section.  I do not know whether the applicant’s mother or father have Australian or New Zealand citizenship (as I have said, the applicant’s father now lives in New Zealand). I simply do not know the facts, but it would not be unusual for a refugee to seek citizenship in the country of refuge as a means both of belonging to the community and of safeguarding residency rights.

51. Moreover, despite Bhutan’s transition to democracy in 2008, the situation involving some thousands of Lhotshampas remains unresolved as I have said. The evidence before me suggests that some 2000 Lhotshampa presently living in Nepal wish to return to Bhutan but have not been accepted back. This is a profoundly concerning aspect of the behaviour of the government of Bhutan. 

52. All in all, it remains, in my opinion, more likely on the evidence before me that the applicant would not be accepted for removal to Bhutan because he would not be recognised by the Bhutanese Government as having a right to reside there.  I cannot exclude the possibility that he might be accepted back, of course, but it is not the more likely scenario on my review.  I believe it is appropriate that approach my review on the basis of what I consider to be the more likely scenario.

53. I further note that, were I to affirm the decision under review, the applicant would most likely make a protection-visa application.  That would take some time to process.  On the assumption that the applicant met the criteria for the grant of such a visa – and I note this was something the delegate was open to but was not able to resolve for himself or herself – this would prevent his refoulement to Bhutan in any event, given the provisions of section 197C of the Act.  Moreover, I also bear in mind that the applicant could still have his protection visa application refused under section 501(1) notwithstanding his satisfaction of the criteria for a grant of the visa.  This would result in his ongoing detention in Australia. 

54. In both these scenarios, therefore (that is, where the applicant’s repatriation to Bhutan is not accepted by the Government of Bhutan for one reason or another, or where the applicant is found to be owed protection obligations by Australia but is refused a protection visa on character grounds), the applicant will necessarily remain in immigration detention, to which he will be taken immediately upon his release from gaol in a year’s time (as there is no third country to which he has a lawful right of entry). 

55. When I engage with the practical consequences of a decision by me to affirm the decision presently under review, I believe it is more likely that the applicant will, for one reason or another, find himself in detention on an indefinite basis.  It is not easy to discern probable events, but I am clear in my own mind that I am not merely speculating when I decide, as I do, that the more likely outcome of a decision by me to affirm is “indefinite detention” in the sense in which that expression was used by the plurality in the Full Court of the Federal Court in WKMZv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463. As I understand matters, the applicant’s protection visa application, were I to affirm the decision under review, might take some considerable time to consider, and would probably take up a good portion of what remains of the applicant’s sentence.

56. The prospect of indefinite detention is a matter that, in my opinion, I ought to take into account in deciding this application for review.  I might also note that the applicant himself has referred to the fact that he has no citizenship, given his birth in a refugee camp: see Exhibit R1, p 56.

57. The likely possibility of indefinite detention, as that expression is used in WKMZ, remains of real concern to me, and it is a matter which I believe I ought to take into account.  I note that I have no information before me that suggests there is any possibility of a third country taking the applicant. 

58. Returning now to the four considerations listed in paragraph 9, I do not believe that there is a risk of non-refoulement obligations being breached, given the protection offered by s 197C of the Act, which prevents refoulement where a protection finding has been made.  Furthermore, I do not believe that it is necessary to evaluate and weigh the extent-of-impediments-if-removed consideration, as my conclusion is that the more likely scenario is that the applicant would not be removed to Bhutan or Nepal. 

59. I have no information on the impact of my decision on victims, and this consideration is, therefore, neutral.

60. So far as the applicant’s links to the Australian community are concerned, I do not accord these separate weight, as I believe they are encapsulated within the consideration I propose to give to the prospect of the applicant being detained in an immigration detention centre on an indefinite basis as that term was used by the plurality in WKMZ.

WEIGHING THE CONSIDERATIONS

61. The weighing of the various considerations to which I have referred has proved particularly difficult in this case.  It hardly requires saying that the offending is of the most serious kind, and that all the primary considerations point to affirming the decision under review.  These primary considerations must be given, generally speaking, more weight than the so-called other considerations.  That is required under the Direction: see paragraph 7(2).

62. But it is equally true that I must consider the circumstances of the individual case.  This case involves the very serious prospect of the applicant remaining on an indefinite basis in immigration detention. If I had some indication from the respondent that the period of detention would be limited in time, that might go at least some way to alleviating my concerns.  If I had an indication, for example, that third country options would be explored and, if not successful within a particular period of time, the applicant would be released into the community with a visa or under community detention, that would place a finite period of time upon detention.  That is not the case here, and it has not been the case in any other matter I have reviewed where this issue has been raised with the respondent.  At paragraph [72] of the respondent’s SOFIC, it is made clear that consideration of these matters has not yet been undertaken but is awaiting the outcome of the review in this application. Moreover, if a protection visa application is made, as I believe it would be if I affirmed the decision under review, consideration of these matters would, presumably, be deferred until that process is completed.  All this implies a process that will not be complete by the latest time the applicant is likely to leave gaol, in August 2023. He will, therefore, enter immigration detention and be likely to stay there for some considerable time in my view.

63. The prospect of indefinite detention is of real concern to me. I accept the Full Court’s guidance in WKMZ in relation to this matter. It is self-evidently true that the applicant has a vital interest in his personal liberty, and personal liberty is a fundamental human right: see WKMZ at [123].  His remaining in detention on an indefinite basis without a clear and reasonable time limit on that detention is of particular concern to me in the evaluative exercise I must undertake. I emphasise in this case, as I have in others, that I would not impute to the Minister any intention to keep the applicant detained on a quasi-permanent basis.  That would be to impute a completely unreasonable intention to the Minister.  It remains the case, however, that I am unable to proceed on the basis that there is a finite and reasonable period of time at the end of which the applicant would not find himself in detention in Australia.

64. I certainly acknowledge that it is not inevitably the case that indefinite detention, in the sense used by the plurality in WKMZ, will outweigh other strong factors favouring affirming the decision under review. Indefinite detention is not, therefore, always a decisive factor. It is, however, a factor that must be given weight in my opinion, and in the circumstances of this case I give it strong weight.

65. As I have said, this is a case which has proved remarkably difficult. In normal circumstances, the applicant would find the decision affirmed. But the highly unusual circumstances of this case do present a very difficult decision, and, in my opinion, the weighing exercise I am required to undertake falls, on balance, in favour of revoking the cancellation decision.

DECISION

66. To return to the language of section 501CA(4)(b)(ii) of the Act, I have concluded that there is “another reason” for the cancellation decision to be revoked.  Accordingly, I shall set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta

........[Sgnd]............

Legal Associate

Dated 15 September 2022

Date of hearing:  8, 9, 15 and 17 August 2022

Applicant’s Representative:  Self-represented

Respondent’s Representative:                  Mr S Cummings

M Hutt, Unbecoming Citizens, OUP (Third Impression 2007), pp 153ff;
M. Morch, “Bhutan’s Dark Secret: The Lhotshampa Expulsion”, The Diplomat, 21/9/2016
“Minority Rights Report – Lhotshampas”