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

[2022] AATA 4573

VKVH and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4573 (29 November 2022)

Division:GENERAL DIVISION

File Number(s):      2022/7972

Re:VKVH  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:29 November 2022

Date of written reasons:        23 December 2022

Place:Adelaide

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

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

Senior Member Dr N A Manetta

MIGRATION – mandatory cancellation of visa – whether “another reason” for revocation of cancellation decision – Direction 90 – serious offending in short period – primary considerations weigh against applicant – likelihood of indefinite detention considered – applicant’s continued deprivation of liberty outweighs primary considerations – decision set aside and revocation of cancellation decision substituted

Legislation

Migration Act 1958 (Cth)

Cases

Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286

WKMZ v Ministerfor 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 – 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

23 December 2022

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

   [1] I note that these written reasons contain certain paragraphs which frequently appear in my decisions; namely, [3], [4], and [18].

2. This is an application by VKVH, a person whose name is subject to a confidentiality order and to whom I shall refer as “the applicant” in these reasons. The applicant seeks a review of a decision of a delegate of the respondent dated 6 September 2022. By this decision, the delegate affirmed an earlier decision taken in the respondent’s Department to cancel the applicant’s refugee visa under section 501(3A) of the Migration Act 1958 (“the Act”).[2]  The applicant had been convicted of affray, amongst other offences, and had received a 12-month, 18-day term of imprisonment, part of which he was required to serve on a full-time basis in jail.  On my review, the decision to cancel the visa was correctly taken in these circumstances.

   [2] A Class XB Subclass 200 Refugee visa.

3. The applicant made a timely application seeking an internal review of the cancellation decision. The delegate responsible for this review was obliged to address two questions. The two questions were, first, whether the applicant passed the so-called “character test” under section 501(6) of the Act; and, secondly, if not, whether there was “another reason” for the cancellation decision to be revoked. In addressing the second of these two questions, the delegate was required to apply Direction no. 90 issued under section 499 of the Act.[3]

   [3] 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 adduced before me, I must address the same two questions. In matters like this, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[4] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding 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 Karp appeared for the applicant; Mr Kim, for the respondent.  I am grateful to them both for their assistance, and I acknowledge in particular Mr Kim’s measured advocacy and balanced submissions.  These reflected well the respondent’s obligations as a model litigant.

   [4] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [98] and [141].

   STATEMENT OF CONCLUSION

5. 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 turn to set out the background facts and my reasons for this conclusion.

   BACKGROUND FACTS

6. The applicant was born in 1997 in a refugee camp in Kenya. He was 25 years of age at the time of the hearing before me. He is of Sudanese ethnicity and is a citizen of the country now known as South Sudan. The evidence before me (from the applicant’s older brother) suggests that life in the refugee camp was very difficult for the family. I accept that evidence.

7. The applicant came to Australia with his family when he was still a boy. The applicant experienced no particular difficulties assimilating into the Australian community according to the account he gave to the psychologist, Mr Watson-Munro: see Exhibit A5, p 3.  He learned English quickly.  The applicant left high school in 2015 and started work on a farm known as “Cobbledick Bros”. He then applied for a job at Thomas Foods, working Monday to Friday. He worked there for six months in mid-2016. It would appear that the applicant moved at some point to Adelaide so he could enrol at Thebarton Senior College.  He was living with an aunt in Adelaide at that time but she evicted him on account of his drinking, from which I infer that he had become seriously disruptive in her household.  He did not have a fixed address from that time on.  He began to keep bad company in Adelaide, and he abused both alcohol and drugs regularly.

8. At about the age of 19, the applicant commenced working at Murray Bridge Abattoirs. He was there for about six months before attempting a degree in film and creative writing at the University of Newcastle.  When in Newcastle, the applicant stayed with his older brother.  I note that he committed a criminal offence while there.

9. A recent psychologist’s report (that of Mr Watson-Munro to which I have earlier referred) was in evidence before me: see Exhibit A5. At page 4 of that report there is a summary of the applicant’s alcohol and substance-abuse issues which I find to be accurate:

   [The applicant] acknowledged prior issues with drugs and alcohol, which commences at about the age of 16 years. At that time he began using cannabis and ice. He stated that there was a period of using drugs for about five years, in conjunction with alcohol. He described a pattern of binge drinking on the weekends, as far back as his mid teenage years. He reported a history of alcoholic blackouts. [The applicant] stated that alcohol was his major drug of abuse. It is also apparent that he was heavily reliant upon ice, which at his (sic) peak would involve him using up to 4 points per day. He stated that he would use three to four times a week and that during these periods he would be sleep deprived, with him having in addition significant problems with his cognition referable to consequential thinking and impulse control. He stated that he would generally drink Mosel. He acknowledged a history of drink drive convictions.

10.  As this passage makes clear, the applicant acknowledged to Mr Watson-Munro that alcohol was a major issue for him and that he was also heavily reliant upon methylamphetamine or “ice”. I accept that the evidence suggests the applicant was severely abusing both alcohol and drugs at the time of his offending.

11.  I turn now to consider the applicant’s criminal record, which was before me: Exhibit R1, pp 29-30.  I note also that the offending has been helpfully summarised in table form in Part II of the respondent’s Statement of Facts, Issues and Contentions: Exhibit R4.  The applicant’s earliest offences date from 2015 and 2016 when he drove with an excess blood-alcohol level and whilst under disqualification or suspension. Both those convictions were recorded by the Magistrates Court sitting in Murray Bridge, a town where the applicant lived at the time.

12.  In 2017 there is an offence before the Elizabeth Magistrates Court in South Australia of failing to comply with a bail agreement and a dishonesty/theft offence. A bond to be of 12 months’ good behaviour was imposed on that occasion together with a fine of $200.  In the Newcastle Local Court in 2017, the applicant was found guilty of possessing a prohibited drug and was fined $400.

13.  Back in Adelaide, the applicant was convicted on 5 February 2018 of having committed an assault and damage to property, and was found to have taken properly unlawfully and to be in unlawful possession. He was convicted and fined $1500 on that occasion. On the same day, he was found guilty of failing to comply with his bail agreement and was convicted, but discharged without penalty.

14.  On 19 February 2018, the applicant was again found to have taken property without consent and to be in unlawful possession. He was required to enter into a bond of 12 months’ duration and was convicted with a suspended sentence of 18 days.

15.  On 14 September 2018, the applicant came before the Adelaide Magistrates Court. Importantly he was found guilty of a number of offences: dishonestly taking property without consent, committing an aggravated assault, as well as committing an assault (marked as a basic offence). He had also breached his bond and was ordered to serve the 18-day jail term he had earlier received.  He was sentenced to jail for 11 months and 24 days but was to be released after serving seven months. This offending is important because it marked the first entry by the applicant into the jail system.  On the same day, he was also found guilty of a breach of an earlier bond and of disorderly behaviour but no further penalties were imposed.

16.  On 29 July 2019, the applicant was found guilty, again whilst on bond, of serious offences. He was found guilty of a serious criminal trespass involving an unlawful break-and-enter of residential premises and dishonestly taking property without consent in relation to which he received a sentence of seven months, six days. He was also found guilty of affray and received a cumulative sentence of 12 months, 18 days. He was also required to serve the balance of the term that had been partially suspended on entering the bond; namely, four months 24 days.

17.  I had the sentencing remarks of the Adelaide Magistrates Court before me: see Exhibit R1, pp 31ff.  I note that I have considered the other sentencing remarks before me in Exhibit R3 so far as they relate to earlier offending: see pp 49-56[5].  The most recent sentencing remarks referred to the applicant abusing alcohol from about the age of 12 and the Court referred also to a wide misuse of various drugs. The Court concluded that the use of the drugs did not excuse the offences nor make them less serious, but it did explain what the Court called “an outburst of serious offending over a short period of time”: Exhibit R1, p 32.  The Court made the highly pertinent observation that overcoming alcohol and drug use, the underlying reasons for it, and the applicant’s sense of loneliness and boredom, were critical to his rehabilitation: Exhibit R1, p 33.  I agree with this observation.  The Court said that it suspected the applicant was immature for his age, which was 22 at the time.  The Court referred also to a presentence report which noted that the applicant’s prospects of rehabilitation were “not good”. I bear that in mind.  It is not necessary for me to set out the details of the offending.  They are summarised in the sentencing remarks: see Exhibit R1, p31.  Some of the offending is also helpfully referred to in a presentence report: see Exhibit R1, pp 42-44.

[5] I note the remarks appearing at pp 80ff of Exhibit R3 duplicate those at pp 31ff of Exhibit R1.

REASONS

18.  I now turn to Direction no. 90.  I frequently refer to certain earlier prefatory remarks I made in the matter of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at paragraphs [32]ff. I do so again here:

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

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

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

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

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

19.  I turn now to consider the primary considerations. I must take into account four primary considerations. The first consideration is the protection of the Australian community from criminal or other serious conduct. In taking account of this consideration, I must bear in mind what appears in paragraph 8.1(1). I accept that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct. I am to bear in mind in particular the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they will not cause or threaten harm to individuals or the Australian community. I bear that in mind.

20.  Subparagraph (2) requires me to give consideration to the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.

21.  In addressing the nature and seriousness of the conduct to date, I must have regard to a number of factors specified in subparagraphs (a) to (g) of paragraph 8.1.1(1). Subparagraph (a) specifically mentions violent crimes. The crimes committed by the applicant involving the hurling of a rock and his established history of assaults on members of the community (including the assault with a belt) are, in my opinion, all instances of violent crimes, as is, of course, the offence of affray. They are to be taken very seriously under the Direction. I would also regard the most recent theft of property as very serious both because of the amount involved (namely, in excess of $4000) and because of one accompanying and, in my view, aggravating feature; namely, that the offence was committed while the applicant had promised to be of good behaviour.  The Court specifically referred to the lack of security people often feel after their homes have been burgled.  Driving with an excess blood-alcohol level is also a serious crime given the potential consequences for other road-users and pedestrians.      

22.  I am to have regard to the sentences imposed. The sentence imposed with respect to the affray offending of just over twelve months clearly marked out the offending as very serious, and I bear in mind it was a discounted sentence because of the plea of guilty.  I would also refer to the earlier sentence in 2018, where an 11-month sentence was imposed in respect of dishonestly taking property, assault and aggravated assault.  These are long sentences, particularly for such a young offender, and they mark out his behaviour as very serious indeed.  The sentencing Courts clearly had decided that a punishment involving time served in jail was necessary since other options had not proved a sufficient deterrent. 

23.  The criminal record clearly displays multiple offences and a trend of increasing seriousness. It is clear that the offending has persisted in spite of suspended sentences and bonds, and, in fact, it had deteriorated over time.  Importantly, the applicant’s misuse of alcohol and drugs was never addressed during this period. 

24.  There is a cumulative effect of repeated offending, and I take that into account.

25.  I turn now to the question of risk to the Australian community under paragraph 8.1.2. I note what appears in subparagraph (1) without setting it out.  I must assess risk in the following way. First, I must have regard to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and, secondly, I must assess the likelihood of his engaging in that conduct taking into account the matters referred to in subparagraphs (i) and (ii).

26.  I agree with the respondent’s submission made in its Statement of Facts, Issues and Contentions that if the applicant reoffended, the harm to the community would be substantial.  People are entitled to be free from loss of their personal possessions, from intrusion into their homes, from intimidation, and, of course, most importantly, from violence.  The applicant’s offending attacked individuals in their person and their right to enjoy property. This sort of behaviour disturbs and intimidates community members, and it can harm the confidence of residents in small towns (like Murray Bridge). In short, the offending undermines a well-ordered and peaceful society. 

27.  Moreover, the behaviours in which the applicant might engage in the future could be even worse.  I say this because the applicant committed the offences when he was substantially disinhibited.  The abuse of drugs and alcohol in this context is particularly serious because it often leads to a range of disinhibited behaviours with unanticipated results for community members.

28.  I accept the respondent’s submissions in this regard.

29.  I must assess risk. There are a number of matters bearing on risk.  First, the sentencing leading to cancellation of the applicant’s visa was not the first occasion of jail for the applicant.  Having said that, he was still relatively young when he entered jail for the second time. But I accept that the experience of jail on the first occasion did not lead to a change of behaviour. Next, I have regard to the fact that the crimes in which the applicant engaged most recently were fuelled by alcohol and drug misuse. The key to ensuring the applicant stays out of trouble will be a renunciation by him of all alcohol and drugs, as the Court acknowledged. I believe that if the applicant reverts to alcohol or drugs, he will use them frequently and become disinhibited, and that will lead inevitably to criminal offending. 

30.  The risk of the applicant reverting to drug and alcohol use is not easy to assess. I have considered the report by Mr Watson-Munro (Exhibit A5).  Based on an assumption that there had been no misuse of drugs in jail and immigration detention, Mr Watson-Munro believed that the applicant was in full physical remission. My observation here is that there have been some instances in immigration detention that give rise to concerns in this regard.  In particular, the applicant’s room, which he shared with another, was searched and drug-use material was found there.  The issue of drug use remains a concern.

31.  Mr Watson-Munro also referred to the applicant’s untreated psychological problems and his vulnerability to adverse peer-group dynamics.  I agree with that view.  The untreated psychological problems stem from past episodes of serious violence, and this was supported by the evidence given by the applicant’s brother.  On that assumption, the applicant at the present time does have quite serious problems that have yet to be treated.

32.  Mr Watson-Munro refers to the applicant’s growing maturity and insight. My own impression of the applicant was to the contrary; and I found that he was immature for his age - he is now 25 - and had not developed any real insight into the harm he had caused the Australian community through his behaviour. His behaviour in detention has also been poor on occasion and his evidence to the Tribunal in that regard was unsatisfactory overall.  

33.  On the other hand, I accept that some protective factors do undoubtedly exist.  In particular, if the applicant is released to the community, his brother will employ him in Murray Bridge.  In my opinion, it would be essential that the applicant engage in work as soon as he could on release. His past offending has been linked to feelings of boredom and frustration, and the applicant used alcohol and drugs to alleviate these feelings.  

34.  There is also the protective factor of a proposed re-engagement with the local football club at Murray Bridge.   I accept that this re-engagement would be likely to improve his physical and emotional wellbeing overall.  It would also assist him to feel he belonged to a community when he might otherwise feel he stood outside it, so to speak.  But I do not accept Mr Watson-Munro’s final conclusion that the risk of recidivism is “moderate trending to low”.  There has been a very prolonged history of alcohol and drug abuse by the applicant, and there are complex psychological issues that require addressing. In my opinion, the risk is at least moderate, and, therefore, real and substantial.

35.  I note that the Direction requires me to have regard to this risk “cumulatively”; that is, in conjunction with the nature and seriousness of the harm to which I have already referred. I do so.

36.  I agree with the respondent that the considerations in paragraphs 8.2 and 8.3 (namely, family violence and best interests of minor children in Australia) are not relevant.

37.  Paragraph 8.4 concerns the expectations of the Australian community. These are to be found in the Direction itself (see subparagraph (4)) and they apply whether the applicant poses a measurable risk of causing physical harm to the Australian community (see subparagraph (3)). I acknowledge that the Australian community expects the applicant, as a visa-holder, to obey Australian laws, and he has been in serious breach of this expectation. The Australian community expects “as a norm” that he should not be allowed to remain in Australia. This is made clear in subparagraph (1).  I acknowledge that there are serious character concerns concerning him.    

38.  All in all, this consideration counts against the applicant substantially.  Furthermore, all primary considerations that I have identified count against the applicant.

39.  I turn now to consider the so-called “other” considerations under paragraph 9.  There is a non-exhaustive list of four such considerations in subparagraph (1).  I do not believe international non-refoulement obligations apply as the applicant may not be removed to South Sudan under the Act. Mr Kim submitted on behalf of the respondent that the applicant is a person in whose favour a protection finding has been made and to whom Australia continues to owe protection obligations. In these circumstances, section 197C will prevent his removal from Australia to South Sudan, the only country on the evidence before me to which he may be lawfully removed at the present time. I agree with that submission.

40.  For the same reason, I do not believe the “extent of impediments if removed” consideration applies. There is no likelihood of the applicant being removed to South Sudan if I affirm the decision under review.  I note that I do not have before me the details of any country that might prove to be an appropriate third country to which the applicant may be deported. 

41.  I do not have before me evidence concerning the impact of my decision on past victims and so I leave this factor to one side.  No doubt the applicant’s resumption of residence in Murray Bridge, a relatively small town, might cause a degree of apprehension amongst neighbours (including especially a person whose house was burgled); but it would be speculative, in my opinion, in the absence of evidence led by the respondent, to proceed on the basis of any particular impact upon them (were I to set aside the decision under review).   

42. I must have regard to the applicant’s links to the Australian community and any other considerations (bearing in mind that the list in paragraph 9 is not exhaustive). I accept that if I affirmed the decision under review, the applicant would continue to be held in immigration detention until a third country were found to which he might be removed or the Minister exercised a personal power (for example, under section 195A) to grant him a visa.

43.  On the evidence before me, it is not clear how the apparent impasse of the applicant’s continuing detention would be solved.  It appears to be almost counterintuitive to suppose that a third country would be readily persuaded to take the applicant when the Australian Government wishes to see him removed; and, certainly, there is no evidence before me that a third-country option would be secured in the short term.   

44. I am aware that the Minister has personal powers (for example, under section 195A of the Act) to grant the applicant a visa. No information was placed before me, however, concerning a likely timeframe for the making of any decision in that regard. On the other hand, I do not proceed on the basis that the Minister would leave the applicant in immigration detention on a quasi-permanent basis as this would be to impute to the Minister a completely unreasonable intention. Accordingly, I proceed on the basis that the applicant will most likely remain in detention “indefinitely”, that is, without a fixed end point known in advance, but not permanently. That is a matter that counts very substantially in the applicant’s favour in my opinion.

WEIGHING THE CONSIDERATIONS

45.  I turn now to weighing the various considerations I have identified. This has proved difficult. I am conscious of the fact that none of the primary considerations counts in the applicant’s favour, and I also take into account the fact that, generally speaking, primary considerations should be accorded more weight than the so-called “other” considerations arising under paragraph 9. Nevertheless, I must give consideration to the individual circumstances of the case before me, and it is clear that another consideration under paragraph 9 may outweigh even strong primary considerations.  I must pay close consideration to the case before me: the proper weighing of the various considerations under the Direction requires the closest evaluation and weighing of the particular circumstances before the Tribunal.

46.  I accept that the applicant’s offending has been strongly anti-social. Earlier chances given him through the criminal-justice system have been squandered.  The first experience of jail did not persuade him to stay away from alcohol and drugs.  I accept that the applicant’s behaviour has been, as I say, strongly antisocial and has attracted heavy jail sentences on two occasions now. Much of the offending has occurred whilst the applicant has been misusing alcohol or drugs and, of course, the use of illicit drugs is in itself a criminal offence and a strongly anti-social form of behaviour.  Much of the offending has also involved breaches of various bonds or bail conditions.  A bond is a formal promise made by an offender that he or she will no longer harm the Australian community in exchange for which the offender receives a lesser, more merciful, sentence. Breaching a bond is a very serious matter as is breaching a bail agreement.  I take all of that into account. I also take into account my risk-assessment of recidivism as real and substantial for the reasons I have earlier given.  the applicant’s crimes are to be assessed as very serious under the Direction.  His behaviour in detention has frequently been poor.

47.  But as the plurality in WKMZ v. Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463 pointed out (at [123]):

“The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision-maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law.”

48.  I accept that guidance and I have applied it in my deliberations: I should not ignore the continued deprivation of the applicant’s liberty that any decision I make to affirm the decision under review would entail. On the contrary, I believe I should give that prospect the most anxious consideration.  I accept that if I affirmed the decision under review, the applicant would face an “indefinite” period in detention; that is, with no accurate understanding of exactly when his detention might end and with no fixed end date.[6] I note that as the Act now stands, and in contrast to the statutory regime considered in WKMZ, the applicant may not be mandatorily removed to South Sudan in contradiction of the protection obligations owed him.

[6] See WKMZ [2021] FCAFC 55; 285 FCR 463 at [123], and also at [136].

49.  Any decision I make to affirm the decision under review will inevitably have the effect of prolonging the applicant’s detention. As I have said, I would not impute to the Minister an intention to detain the applicant in immigration detention on a quasi-permanent basis. But it remains the case that the applicant’s liberty would continue to be substantially affected if I affirmed the decision under review with no fixed or ascertainable end date in sight. 

50.  In this regard, I note the important fact that the evidence before me suggests that the applicant had already been in immigration detention for over two years as at the date of my oral decision.  That is a very long period, indeed.  In my view, the weight to be accorded continued detention in this case ought to take account of the fact that the applicant has already been detained for this very considerable period of time.

51.  The delegate accepted that a decision not to revoke the cancellation decision would imply the applicant’s ongoing detention for an indefinite period: see Exhibit R1, p 27 at paragraphs [82] - [83]. I agree with that aspect of the decision.   And I do acknowledge that the continued detention of an applicant does not automatically lead to the revocation of a cancellation decision. The plurality in WKMZ did not say that it should.  Nevertheless, it remains a highly pertinent consideration for the reasons given by the plurality, and the weight it is to be accorded must be determined by reference to the circumstances of the case.

52.  All in all, having applied Direction no. 90, I have decided on my review that the continued deprivation of the applicant’s liberty resulting from a decision to affirm would outweigh the strong primary considerations in this case. That is a decision on balance.  It follows that the correct or preferable decision on the evidence before me favours revocation of the cancellation decision.  

FINAL DECISION

53.  Having reached that conclusion, I have also decided that there is “another reason” for the cancellation decision to be revoked for the purposes of section 501CA(4)(b)(ii).  Accordingly, I shall set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked.

…………[sgnd]……………

Associate

Dated: 23 December 2022

Date of hearing:	11 and 17 November 2022
Advocate for the Applicant:	Leonard Karp Chalfont Chambers
Advocate for the Respondent:	Kyu-Won Kim Clayton Utz