TVVT and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 364

TVVT and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 364 (31 March 2025)
Applicant:TVVT
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2019/0755

Tribunal:Senior Member N Manetta
Place:Adelaide
Decision Date: 31 March 2025

Date of Written reasons: 9 April 2025
Decision:The Tribunal sets aside the decision under review and decides in substitution decides that the cancellation of the applicant’s visa be revoked.
Written reasons for this decision will be provided within a reasonable time hereof.
……….......................Sgd..........................................
Senior Member N Manetta

Catchwords
MIGRATION – mandatory cancellation of visa – applicant fails character test – whether another reason to revoke visa cancellation – applicant from South Sudan – applicant has extensive criminal history – probable consequences of decision to affirm – either applicant is refouled to South Sudan or applicant is held in immigration detention for a prolonged basis while third country resettlement options explored – applicant most unlikely to be granted a protection visa even if he is owed non-refoulement obligations – either of the two probable consequences imply revocation of cancellation decision preferable outcome – decision set aside and substituted
Legislation
Migration Act, 1958 (Cth)
Cases
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons

As of 31 March 2025, I was clear as to the appropriate outcome in this matter, having closely reviewed the extensive evidence and submissions. I decided to give my decision on that day without reasons so as to give the applicant certainty as to the result of his application after more than six years. I indicated that I would provide my reasons within a reasonable time. I now publish those reasons.
This is an application by ‘TVVT’, a person whose name has been anonymised in the interests of confidentiality, and to whom I shall refer in these reasons as ‘the applicant’. The applicant seeks to have a decision of the respondent’s internal-review delegate, dated 11 February 2019, set aside. By this decision, the delegate affirmed the mandatory cancellation of the applicant’s visa[1] that had earlier taken place on 16 July 2018 under s 501(3A) of the Migration Act, 1958 (Cth) (‘the Act’). The applicant’s visa was cancelled after his conviction of two charges of armed robbery. He received a sentence of 13 months in relation to each of these two offences. Part of these sentences was required to be served on a full-time basis in jail. In these circumstances the initial cancellation of the applicant’s visa was required under s 501(3A) of the Act.
[1] A Global Special Humanitarian (Class XB) (Subclass 202) visa.
The applicant made a timely application for an internal review of the visa-cancellation decision. The internal-review delegate had two questions to address under s 501CA(4)(b) of the Act. First, the delegate had to consider the question of whether the applicant passed the so-called ‘character test’ as defined in s 501(6) of the Act. The delegate answered this question in the negative. Secondly, as the answer to this first question was no, the delegate was required to consider whether there was ‘another reason’ – that is, a reason apart from the applicant passing the character test – warranting the revocation of the cancellation decision. In this regard, the delegate was required to apply any direction issued under s 499 of the Act. The delegate applied the direction then in force, Direction no. 65.[2] Having weighed the various considerations required to be addressed under that direction, the delegate concluded that, on balance, they did not favour revocation of the cancellation decision. The delegate formally concluded that the threshold for the exercise of the statutory power in s 501CA(4)(b)(ii) of the Act had not been satisfied, and the delegate declined to take any action to set aside the decision under review.[3]
[2] Minister for Immigration and Border Protection (Cth) Direction no. 65 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (22 December 2014).
[3] Ex R1, 40.
The applicant applied to the Administrative Appeals Tribunal (‘AAT’), this Tribunal’s predecessor, to have the internal-review delegate’s decision set aside. There followed a complicated and protracted history of litigation that I now summarise. The AAT set aside the delegate’s decision on 6 May 2019,[4] but the AAT’s decision was the subject of a successful judicial-review application by the respondent that led to the decision being quashed on 24 May 2021. An order was also made that the applicant’s application to the AAT be redetermined according to law.[5] The applicant was in the community during the time that elapsed between the AAT’s decision on 6 May 2019 and 24 May 2021. In this time, further offences were committed by him. The applicant’s application to the AAT was eventually reheard, and the delegate’s decision was affirmed on 13 June 2022.[6] This AAT decision was quashed by consent on 7 December 2022, and an order was made that the AAT redetermine the application according to law.[7] On 4 December 2023, the AAT affirmed the decision under review for a second time.[8] This decision was also quashed by consent on 3 May 2024, and the matter was remitted to the Tribunal for redetermination according to law.[9] Another hearing was then conducted by me. It comprised a de novo hearing on the merits.
[4] Ex R1, 620ff.
[5] Ex R1, 647-648.
[6] Ex R1, 1099ff.
[7] Ex R1, 1193-1195.
[8] Ex R1, 1865ff.
[9] Ex R1, 1895-1897.
Like the delegate, I must address the two questions I earlier identified. There is no doubt that the internal-review delegate was correct to find that the applicant did not pass the character test. Section 501(6)(a) of the Act, when read in conjunction with subsection (7)(c), provides that a person does not pass the character test when he or she has been sentenced to a term of imprisonment of at least 12 months. That is the case here.
In respect of the second question, I must apply any direction issued under s 499 of the Act. Since the delegate’s decision, the direction has changed multiple times. The current direction is Direction no. 110 (‘the Direction’),[10] and I have applied it in my review.
[10] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024).
TRIBUNAL’S TASK
In a case like this, the Tribunal hears the matter afresh. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[11] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.[12]
[11] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51]. This decision concerned the Tribunal’s predecessor, the Administrative Appeals Tribunal, but the same principles apply to the Tribunal’s exercise of jurisdiction.
[12] This paragraph is one I routinely use in my decisions to explain the general decision-making approach of the Tribunal.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked. I now set out the background facts and then my reasons for this conclusion.
BACKGROUND FACTS
The applicant was born in 1996 in what is now known as South Sudan. He was 28 years of age at the time of the hearing before me. He is of Nuer ethnicity and is of the Christian faith.
The applicant arrived in Australia in 2006, aged 10, on a Global Humanitarian visa. He settled here with his father (who had earlier arrived in 2001) and his stepmother.
So far as the applicant’s life in South Sudan is concerned, the delegate found[13] that the applicant ‘was exposed to the trauma of the civil war in Sudan’. I agree with the delegate in this regard. The applicant provided a statutory declaration in 2018.[14] This statement refers to a turbulent childhood during which the applicant experienced being shot as a boy, and to fleeing the civil war and fighting.[15] He witnessed people being shot in front of him. He observed bloated corpses frequently[16] which he would prod with a stick as part of his ‘normal’ childhood experiences. Rebels would raid villages, kidnapping children and killing the parents who resisted them.
[13] Ex R1, 32 [33].
[14] Ex R1, 393ff.
[15] Ex R1, 393 [6], 394 [8].
[16] ‘Every day’: Ex R1, 394 [8].
One day, the applicant’s mother suddenly put him on a bus that would take him to Nairobi, he thought. He did not have a chance to farewell his mother or his siblings properly. He was eventually taken to Addis Ababa by a lady who identified herself as ‘his aunty’. He lived there for a month or so, before being flown to Australia where he was met at the airport by his father, his stepmother, and stepsiblings.
On his very first evening in Australia ‒ and I bear in mind here the applicant’s tender age ‒ he was savagely beaten by his father. This pattern of wanton abuse by the father, who was heavily dependent on alcohol, continued. It did not let up. The applicant was insulted by his father as well as physically abused. His father was, he said, ‘so violent’.[17] The violence was only tempered by the sporadic interventions of his stepmother and stepsisters.
[17] Ex R1, 395 [14].
The family moved in due course to Bendigo. The applicant began ‘to hang with the wrong crowd’[18] and started also to smoke cannabis. He stopped for a while, but recommenced after his father hit him with a baseball bat. Cannabis was used by the applicant, he said, to avoid flashbacks of South Sudan and of the beatings he received from his father. I find that evidence plausible.
[18] Ex R1, 395 [18].
At 14 years of age, the applicant left home, aided by the principal of his school, in whom he had confided his distressing family circumstances. He first stayed at a friend’s house. The applicant alludes to being sexually mistreated in that house, and he then began to ‘couch surf’.[19] He stopped attending school regularly. He was introduced to ‘ice’ at this stage. His statement refers to a move to Melbourne and engagement with YSAS in Melbourne.[20]
[19] Ex R1, 395 [22].
[20] ‘Youth Support + Advocacy Service’.
I pause at this stage to note the extreme difficulties the applicant had known from the very commencement of his life. These could hardly have had anything but a profoundly damaging impact upon his juvenile psyche. His life was marked by the unspeakable violence of the Sudanese civil war, sudden separation from his mother and siblings, and then extreme abuse suffered at the hands of his father in Australia.
It is not surprising, then, that the applicant, who chose quite reasonably to leave home, succumbed to mixing in the wrong circles, disconnected himself from school and commenced to misuse drugs. I add here that he has experienced periods of homelessness.
With that severe dysfunction in his upbringing in mind, I turn now to consider the applicant’s criminal history, which was before me in evidence.[21] The offending history is very long. It is important to note, in my opinion, that it commences very early in the applicant’s life here in Australia.
[21] Ex R1, 42-46.
I do not intend to set out the history in detail. It appears in the record that was in evidence before me.[22] There are a number of early offences which I am bound in law to ignore. I do so.
[22] Ex R2.
The first offending I may lawfully consider is that which was dealt with on 7 March 2014 in the Melbourne Children’s Court. There are 19 separately entered listings against that date and some listings have more than one entry. There are multiple theft and burglary offences. There are also multiple offences involving violence, assaults, affray, recklessly causing injury as well as intentionally causing serious injury. The longest sentence that was given was nine months in a Youth Justice Centre. It is a long sentence for a juvenile.
There followed another series of offences, appearing as six entries (with some entries contain more than one charge) before the Melbourne Magistrates Court on 9 January 2015. These again included burglary, intentional damage of property, possessing drugs, and theft. The longest sentence was again ten months’ detention in a youth training centre, but this appears to have been reduced on appeal.
On 17 June 2016, the applicant was again charged with a variety of offences and appeared before the Melbourne Magistrates Court. These included aggravated burglary, the possession of ice, obtaining property by deception, theft of a motor vehicle, recklessly causing injury, unlawful assault, and intentional damage of property. The longest sentence here appears to be six months’ detention in a youth training centre.
At this point, it can be seen that the applicant had spent much of his young adult life in and out of detention centres after committing one crime after another.
On 20 April 2018, the applicant was found guilty of two charges of armed robbery and of committing an indictable offence whilst on bail. The armed robbery charges resulted in an aggregate term of 13 months’ imprisonment together with a community corrections order for two years commencing upon completion of the imprisonment term. There was also an obligation to perform 100 hours of unpaid community work.
On 9 May 2018, the applicant was convicted of a number of offences including the possession of cannabis and a series of offences including recklessly causing injury, cultivating cannabis, theft, and obtaining property by deception. There were offences also unlawful assault and recklessly causing injury.
On 18 December 2020, the applicant was found guilty of another series of offences including possessing a control weapon without excuse and trafficking ice. It must have been a small amount of ice as an aggregate seven days’ imprisonment was ordered in conjunction with the theft of a motor vehicle.
There follows a further string of offences that were the subject of proceedings on 29 September 2022 before the Melbourne County Court. These included possessing a drug of dependence, three charges of theft, common-law assault, receiving or disposing of stolen goods, reckless conduct endangering life, intentionally causing injury, attempted armed robbery, and two further counts of armed robbery. This is an extraordinary spree. The two counts of armed robbery received four years’ imprisonment each. Three years of the sentence were to be concurrent. Other offending received lesser but still very serious sentences.
All in all, the following must be admitted. The record is appallingly long for someone still relatively young. Moreover, the offending had begun very early in the applicant’s life with matters first being dealt with in the Children’s Court in Melbourne. The offending has undoubtedly been persistent. There have drug dependence issues as well. Much of the offending has involved vicious violence as the respondent rightly points out.[23]
REASONS
[23] Ex R3, 5-7, [25]-[29].
Prefatory remarks
With this background in mind, I come to the Direction. I usually set out four standard paragraphs that explain aspects of the Direction, and I do so again in what follows in paragraphs [30] – [33] below.
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to the protection of the Australian community over other primary considerations, and it also provides that primary considerations should ‘generally’ be given greater weight over other considerations.
Application of the Direction
I now turn to apply the Direction. I turn first to consider the protection of the Australian community. Subparagraph 8.1(1) provides that decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. The Government is said to be committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are and have been law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I bear this principle in mind. Self-evidently, given the range of offending over such a long period of time, this principle has an obvious and very serious application in this case.

Subparagraph (2) provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.1 deals with the nature and seriousness of the non-citizen’s conduct. Subparagraph (1)(a) provides that, without limiting the range of conduct that may be considered very serious, certain types of conduct must always be viewed very seriously. Very serious offending includes violent offending. There has been much violent offending committed by this applicant.
I regard other forms of offending engaged in by the applicant as serious including all forms of theft and fraud. Members of the Australian community have a legitimate expectation that they will not be forcibly deprived of their property or swindled or duped. I must have regard to the sentences imposed. The most recent sentences punishing armed robbery and attempted armed robbery are long and mark out the gravity of the applicant’s offending.
There has been very great frequency indeed in the offending which entails, of course, a significant cumulative effect upon the Australian community considered as a whole. There is undoubtedly a trend of increasing seriousness as the armed robbery offences were committed when the applicant was older, and they attracted heavy sentences.
Of great significance is the fact that the applicant committed the most recent offences whilst he was in the community having already received the benefit of the first Tribunal’s decision in his favour. This marks his conduct as entirely heedless and uncontrolled. Notwithstanding the fact that he had just been spared deportation by the Tribunal, the applicant reoffended, and it must be assumed that he knew full well what the consequences of further offending would be for his visa status.
I am required also to consider the risk to the Australian community should the non-citizen commit further offences. Paragraph 8.1.2(1) provides that I should have regard to the Government’s view that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of repetition may be unacceptable. I bear that principle in mind, and it has an obvious application in this case.
I must also have regard to two factors when assessing risk and, by paragraph 8.1.2(2), should do so ‘cumulatively’.[24] The first is the nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct. The second is the likelihood of the non-citizen engaging in that further criminal or other serious conduct.
[24] That is, in conjunction with one another: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92, [31].
The nature of the harm to the Australian community would be very serious on the assumption that the applicant engaged in further offending. Armed robbery and assault are self-evidently very serious offences. In one sense, they strike directly at the heart of a well- ordered community because they threaten both the community member in his or her person and the community member’s property rights. This is done in a dangerous and blatant way. Public safety and the confidence of community members to participate in society are disturbed substantially by attacks of this type.
I must weigh the likelihood of the applicant engaging in this conduct again. Here I believe the risk of recidivism is appreciable and real, and certainly not low.
I now explain my reasons for this conclusion. First, I accept that the applicant is at a different stage of his life. He is much older. I believe that he has developed some appreciable self-awareness. There is no doubt about that. I believe that he would have some support in the community if he were released.
Nevertheless, it is clear that the applicant has had substantial difficulties in the past. Dr Zimmerman’s psychiatric report dated 26 September 2023[25], notes at [141] that for most of his adult years the applicant’s substances of preference have been ice and cannabis. Despite repeatedly seeking detoxification programs, the applicant has tended to relapse when in the community. At [170], she notes that substance abuse and a lack of a prosocial network are associated with his prior violent offending. The applicant has also been diagnosed with PTSD, and he has lacked core skills as well as stable accommodation. The report concludes at [172] that he poses a medium risk of violence.
[25] Ex R1, 1830ff.
I would say at this point that that assessment must be a minimum. There have simply been too many offences and too many relapses to have confidence in the applicant’s ability to lead a drug and crime-free life. So, the risk of the applicant reoffending is appreciable.
The criterion of family violence committed by the non-citizen is not relevant.[26]
[26] Paragraph 8.2 of the Direction.
I must consider the strength, nature, and duration of ties to Australia.[27] The delegate was of the view that the applicant’s immediate family and friends in Australia would experience emotional hardship if he were to be deported.[28] I agree that that is a fair assessment of the impact on his family.
[27] Paragraph 8.3 of the Direction.
[28] Ex R1, 38 [82].
I accept also that the applicant has been living in Australia and ordinarily resident here during his formative years and that his only ties are with Australia and not South Sudan.
I do not think the consideration of best interests of minor children in Australia applies.[29]
[29] Paragraph 8.4 of the Direction.
Under paragraph 8.5 of the Direction, I must take into account the expectations of the Australian community. Subparagraph (1) provides that the Australian community expects non-citizens to obey Australian laws while in Australia. As ‘a norm’ – although not as an inflexible rule – the Australian community expects the Government not to permit non-citizens to remain in Australia where they have engaged in serious conduct in breach of the expectation. This principle has obvious application in this case as the offending has been extensive and very serious.
There is no doubt that the community expectations consideration counts very substantially against the applicant. I shall not set it out verbatim, but the applicant has repeatedly breached the expectation of law-abiding behaviour, and the breaches have been serious. As a ‘norm’, the community expects the Government not to allow such a non-citizen to remain in Australia. The consideration applies whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community.[30] Moreover, I am not to assess the community’s expectations but must proceed on the basis of their expectations as set out in paragraph 8.5;[31] and I do so.
[30] Paragraph 8.5(3) of the Direction.
[31] Paragraph 8.5(4) of the Direction.
I must have regard to so-called ‘other’ considerations under section 9. I must first consider what the legal consequences of my decision would be. Clearly, one consequence of my decision might be the removal of the applicant to South Sudan. If the applicant is not owed non-refoulement obligations and if I were to affirm the decision under review, the practical consequence flowing from my decision would be that the applicant would be sent to South Sudan.
Staying with this hypothesis for a moment, I must consider what the extent of impediments to the applicant would be if he were removed there. I accept that paragraph 9.2(1) of the Direction requires me to take into account what is ‘generally available to other citizens’ of South Sudan when assessing the impediments the applicant would face in establishing himself there and maintaining ‘basic living standards’. Nevertheless, this applicant is distinguishable from other members of the community living in South Sudan because he has not lived there since he was 10 years. He has no connection with anyone there and is unable, therefore, to navigate the very serious difficulties he would encounter there with an established network of contacts.[32]
[32] Cf Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92.
The situation in South Sudan is extremely dire as is well known. The material before me makes it clear that the situation is extremely serious.[33] Nuer people also suffer discrimination.[34] The respondent pressed me with a submission that I ought to defer consideration of non-refoulement obligations; but I may not defer consideration of the extent of impediments if removed. I am required to consider these under the Direction: see paragraph 9.2 of the Direction. In this case the extent of impediments on removal is extreme. That is a most serious feature of the matter to weigh.
[33]Exs A15, [6]ff; A14, 7; A16, 4; R1, 410 [2.12] (although the report dates from 2016.
[34] Ex R1, 415-416 [3.8]-[3.10].
The alternative scenario, if I affirm a decision under review, is that the applicant would eventually be found to be owed non-refoulement obligations. However, it remains open to the respondent to refuse his application for a protection visa. In that circumstance, the applicant would continue to be detained in immigration detention after his jail sentence were completed unless a third country were found to take him. The respondent strongly submitted that the applicant is not, to use a contemporary phrase, ‘NZYQ-affected’. The High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs[35] effectively prohibits, as unconstitutional, the detention of a person after a point where there is no longer any real prospect of the person being removed in the reasonably foreseeable future. This implies, however, that the applicant might be lawfully detained until the point is reached that any future protection visa application he wished to make had been considered and refused, and there was no real prospect of his being removed to a third country. An important point in this regard is that the applicant’s detention while these processes are ongoing answers the description of ‘indefinite detention’ as that phrase was used in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[36] In this Federal Court authority, indefinite detention was not equated to quasi-permanent detention but rather was understood to connote detention on an ongoing and prolonged basis without an end date known in advance. The Federal Court held that this was a matter that was highly relevant as a consequence in the weighing process. The common law, the Court held, recognised the liberty of the individual as a fundamental right.[37]
[35] [2023] HCA 37; (2023) 97 ALJR 1005.
[36] [2021] FCAFC 55; (2021) 285 FCR 463.
[37] [2021] FCAFC 55; (2021) 285 FCR 463 at [123].
If the applicant were to be detained in immigration detention because he is owed non-refoulement obligations and cannot be refouled to South Sudan, his liberty would be substantially affected on an indefinite basis unless a third country were secured or until the point had been reached that there was no real prospect of a third country taking him in the reasonably foreseeable future. As the facts in NZYQ demonstrate, that period is not necessarily a short one.
The third possibility is that the applicant is found to be owed non-refoulement obligations and the respondent decides to grant him a protection visa. I must say this option appears to me to be rather remote. The respondent has maintained that the applicant’s risk of offending is live and genuine, and not low. I agree. It is difficult to see how the applicant, having been convicted of a particularly serious crime, would satisfy the eligibility criterion for a protection visa that he not be ‘a danger’ to the Australian community,.[38] Even if this threshold is satisfied, it would remain open to the respondent to refuse him a visa on character grounds under s 501 of the Act. All in all, I do not regard it is at all likely that this applicant would be granted a protection visa if he applied for one once I had affirmed the decision under review.
[38] See s 36(1C) of the Act.
This means, in effect, that the most plausible outcome of a decision by me to affirm the decision under review is either the applicant’s refoulement to South Sudan because the applicant is not owed protection obligations, or ongoing detention in immigration detention because he is owed such obligations and may not be refouled there.
That is a very serious matter to weigh in his favour.
Weighing the considerations
I turn now to weighing the various considerations I have identified. It is important in these cases to face squarely what the decision effectively involves.
There is no doubt that the Direction addresses squarely the applicant’s criminal offending. It expressly makes the protection of the community a matter that generally weighs more strongly than other primary considerations. The Direction speaks strongly against violence of the sort in which the applicant engaged both under the heading of ‘Protection of the Australian Community’ and under the ‘Community Expectations’ consideration. The applicant has engaged in very numerous antisocial acts that are extremely concerning and have involved significant violence. The applicant is a real risk of reoffending. On the last occasion, when released from immigration detention as a result of the AAT’s decision in his favour, the applicant went on to commit very serious offences, apparently undeterred by the prospect of further jail and deportation.
The applicant’s criminal history in one sense speaks for itself. The applicant’s danger to the community can only have been accentuated by his misuse of illicit drugs. This is a case where there are extremely strong considerations favouring cancellation of the applicant’s visa.
As against that, however, I must weigh the other considerations. There are two different hypotheses that I must address. First, if I affirm the decision under review, the applicant may be returned to South Sudan. This would be an extreme consequence for the applicant. I appreciate that the primary considerations are generally to be given more weight than other considerations arising under section 9, but the individual circumstances of the case are required to be given particular attention.[39] The weighing process does not occur in a vacuum but, to the contrary, requires that the most careful and scrupulous attention be given to the case at hand. I am alive to the applicant’s very poor history and his risk profile, but the impediments on removal to South Sudan are so severe that in my opinion they do outweigh the combined weight of the primary considerations against the applicant. This is simply a function of the dire circumstances in South Sudan. That is the result of my weighing on that hypothesis.
[39] See 5.1(3) of the Direction.
I turn now to the other likely hypothesis. In this regard I have relied on the report of the forensic psychiatrist, Dr Zimmerman, to whose report[40] I have already referred. At [190], the psychiatrist notes that prolonged or indefinite detention is known to contribute to adverse mental health outcomes as a result of prolonged exposure to factors including uncertainty, lack of autonomy, deprivation of liberty, isolation and lack of social support. She notes that
‘[t]he chronic stress that [the applicant] would experience in a situation of indefinite detention can be associated with hopelessness, powerlessness, the destruction of resilience, a sense that life is in abeyance and the loss of self-agency. With any uncertain future, mental disorders are likely to persist or worsen.’
[40] Ex R1, 1830ff.
Dr Zimmerman offers the view that the applicant is at risk of deteriorating mental health the longer he held it indefinite detention.
I have weighed this report carefully. The applicant does have post-traumatic stress disorder and was at the time of the report currently experiencing active symptoms.[41] When I analyse this along with the very serious private person of liberty, there are very serious concerns about sending the applicant to immigration detention. In my opinion, on balance, prolonged detention for this applicant outweighs the other considerations against him.
[41] Report at [185].
Both hypotheses have led to a decision, on balance, that favours revocation of the cancellation decision. In these circumstances, there is no need for me to decide which of these two hypotheses is the more likely: both lead to the same result. Taken together as a whole, they are far more likely than a hypothesis that would see the applicant granted a protection visa to remain in Australia.
In reaching my conclusion, I am struck by the fact that I have been led in the circumstances of this case to a decision that in one sense appears to contradict the great emphasis the Direction places upon the safety and expectations of the community. The Direction makes it plain that remaining in Australia is a privilege and one that can be forfeited through recalcitrant and serious criminal misconduct. I have the added feature here of a real risk of recidivism; and I have proof positive of the applicant re-offending upon release into the community after a period in detention.
Yet the Direction itself requires, in paragraph 5.1(3), as I have said, analysis of the specific circumstances of each case. It does not say at any point that particular offending or a particular risk level leads inexorably to a decision to affirm a cancellation decision. Everything depends on the precise facts. The situation in South Sudan is as serious as it could be; and the Federal Court in WKMZ has emphasised the importance of individual liberty as a fundamental common law right, a proposition which is self-evident. I need to consider that right carefully against the background of a person who has serious mental-health and behavioural issues. These have arisen no doubt from the shocking life experiences he has had both in South Sudan and in Australia.
FINAL CONCLUSION AND FORMAL DECISION
In all the circumstances of this case, after weighing the considerations, I have reached a conclusion that, on balance, they favour revocation of the cancellation decision notwithstanding the applicant’s extensive criminal history. There is, therefore, in my opinion, ‘another reason’ for the cancellation decision to be revoked under section 501CA(4)(b)(ii) of the Act. Having reached this conclusion, I should set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked. This was the formal decision of the Tribunal communicated to the parties on 31 March 2025.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Manetta.
…………[sgnd]………….
Dated: 9 April 2025
Dates of Hearing: 21, 22 October 2024
Applicant’s Counsel R Aoukar (instructed by Asylum Seeker Resource Centre)
Respondent’s Counsel J Barrington (instructed by Sparke Helmore)