Williams and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3731

Williams and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3731 (18 October 2023)
Division:GENERAL DIVISION
File Number(s): 2023/5701
Re:John Williams
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:18 October 2023
Date of written reasons: 15 November 2023
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 ‒ whether “another reason” for visa cancellation to be revoked ‒ applicant a citizen of Liberia ‒ applicant guilty of crimes of violence against women, including domestic violence towards mother ‒ applicant guilty of indecent touching of child ‒ applicant has serious mental health conditions ‒ not clear whether applicant owed non-refoulement obligations ‒ applicant most likely either to be returned to Liberia or to remain in detention on an ongoing basis ‒ on either scenario serious concerns arise for applicant’s welfare if decision affirmed ‒ primary considerations outweighed by applicant’s special circumstances ‒ decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92
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. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member Dr N A Manetta
15 November 2023

After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.[1] They are the reasons I read out to the parties with minor amendments.
[1] These reasons contain certain standard paragraphs, especially [6] and [23].
This is an application by Mr John Williams seeking a review of the decision of the respondent’s delegate dated 25 July 2023. By this decision, the delegate declined to revoke the cancellation of Mr Williams’ visa that had taken place mandatorily under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”). Mr Williams’ visa was cancelled after he had been found guilty of a number of offences. The offending led to the imposition of a single sentence of imprisonment of approximately one year and five months (with a non-parole period of some nine months and two weeks). I shall describe the offending in due course.
Mr Williams sought a timely internal review of the mandatory cancellation of his visa. The internal-review delegate was required to consider two matters in reaching his or her decision under section 501CA(4)(b) of the Act. The first was whether Mr Williams passed the so-called “character test” as defined in section 501. Given the sentence of imprisonment to which I have already referred, Mr Williams inevitably failed that test. The delegate was correct to find that was the case.
Having reached that conclusion, the delegate had then to decide whether there was “another reason” for the cancellation decision to be revoked: see section 501CA(4)(b)(ii) of the Act. In this regard, the delegate was required to apply Direction no. 99 issued under section 499 of the Act (“the Direction”).[2] Having weighed the various considerations required to be addressed under the Direction, the delegate concluded that the visa cancellation should remain in force. The delegate concluded that there was not “another reason” for the cancellation decision to be revoked and that the jurisdiction under section 501CA(4)(b)(ii) was not enlivened. Accordingly, the delegate declined to revoke the cancellation decision.
[2] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence before me, I must address the same two questions. I have already indicated that the first question was answered correctly by the delegate, and a contrary position was not put to me by Mr Williams.
In exercising its review function in these matters, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[3] 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.
[3] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
At the hearing before me, Mr Jelbert appeared for Mr Williams; Mr Ellison, for the respondent. I make particular mention of Mr Ellison’s eminently measured approach to the conduct of the respondent’s case. It has assisted me to reach the correct or preferable decision on the evidence, and it fully accorded with the respondent’s model-litigant obligations.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr Williams’ visa be revoked. I now turn to set out the background facts and the reasons for my conclusion.
FACTS
Mr Williams is a citizen of Liberia who was born on 30 May 1998 and who was, therefore, 25 years old at the time of the hearing. He arrived in Australia in August 2013, when he was 15, and as the holder of a Class AH subclass 101 Child visa. He has lived in South Australia at all relevant times. Mr Williams has never held paid employment and has most recently qualified for funding under the National Disability Insurance Scheme (“NDIS”).
Mr Williams’ criminal record was before me.[4] He began offending very soon after his arrival in Australia. The record shows that Mr Williams first appeared in the Adelaide Children’s Court on 11 August 2015. He appeared two days later as well in the Port Adelaide Children’s Court. On the first of these two occasions, he was found to have failed to comply with a bail agreement (two counts); to have given false personal details (two counts); to have resisted police; to have dishonestly taken property without consent; to have used offensive language; and to have been on premises unlawfully. He was placed under an obligation to be of good behaviour for three months, but no conviction was recorded. On the second occasion, he failed to comply with his bail agreement and was discharged without penalty and without conviction.
[4] Ex R1, 32-33.
In 2016, Mr Williams, then an adult, was found guilty in the Adelaide Magistrates Court of disorderly behaviour. He was convicted and placed on a good behaviour bond of $500 for six months. On 24 October 2019, he was found to be in unlawful possession. He was convicted, but discharged without penalty. In 2020, he was found guilty of a number of fare-evasion offences on public transport. He was convicted and fined $400.
Pausing there, I note that the applicant’s behaviour from 2015 onwards involved relatively minor offending, and this is reflected in the Courts’ sentences. It is clear enough, however, that the applicant did not have a fully compliant attitude toward Australian law at this stage of his life. That said, there is nothing about the record at that point that would indicate very serious concerns about his adult behaviour. There is one set of offences involving public-transport fare evasion, one count of unlawful possession which resulted in a conviction but a discharge without penalty, and two counts of failing to comply with a bail agreement which resulted in a conviction but also a discharge without penalty. Only the conviction for disorderly behaviour in 2016 resulted in a conviction and penalty (if I leave to one side the fare-evasion offences).
There was, however, a very marked escalation in Mr Williams’ offending in the course of 2020. This resulted in his appearance before the Port Adelaide Magistrates Court on 23 March 2021. I had the Court’s sentencing remarks before me.[5]
[5] Ibid 34-37.
On this occasion Mr Williams pleaded guilty in the Magistrates Court to two counts of assault, one count of aggravated assault and aggravated theft, one count of indecent assault, and five counts of breaching bail. I accept and rely on the sentencing Court’s remarks. There is a detailed summary of the offending in the sentencing remarks that I now set out:
On 14 January 2020 you kicked a complete stranger. During the afternoon of that day the victim had left her work in Taperoo and was standing by the roadside. You ran at her, you yelled something indistinct and you kicked your leg out at her. Your foot struck hers. You then yelled at her to “Fuck off” three or four times and walked away. There was no apparent reason for this conduct.
On 4 February 2020 you attacked another person who was also a complete stranger. She was walking to the Commonwealth Bank in Port Adelaide. You pushed her and as you did so you knocked her purse to the ground. You grabbed her purse and ran away. Her purse contained $350 plus bank cards. This was unprovoked and unexplained offending during the day against a member of the public going about her business.
On 26 February 2020, you breached your bail by being in a prohibited area at the Port Adelaide Railway Station.
On 24 September 2020, you breached your bail by not living at your bail address.
On 31 August 2020, you reoffended in another similar concerning way. You were at the Taperoo Train Station. The victim heard you yelling at her. You yelled at her that she could not be there as she walked away. You followed her and kicked her in the buttocks. You then threw a roundhouse punch at her which she managed to block.
On 11 December 2020, you offended again. You indecently assaulted a fourteen-year-old young woman[6] by rubbing her upper thigh. The victim was on a bus from Adelaide to the West Lakes area. She was on the bus with other passengers in the middle of the evening. After other passengers got off the bus you move from where you were sitting and sat next to. You talked to her. You asked where she was going and she said, she was going home. You asked if you could go home with her. She said, “No”. She told you she was fourteen. You touched her on the thigh and slowly moved your hand from her mid-thigh towards the genital area. She told you to stop and told you to move away, which you did. This young woman had the presence of mind to contact her family whilst she was on the bus. When you got off the bus you were apprehended by her family and members of the public. I accept that you were injured in an altercation that followed.
You were also in breach of your bail at that time by breaching three separate bail agreements. You were not living at your bail address. There is an element of duplicity with respect to these offences because one act of disobedience breached three separate bails.[7]
[6] I do not, with respect, accept that a fourteen-year-old female is accurately described as a young “woman”.
[7] Ex R1, 34-35.
I would note several things about the assault. First, it involved a child who told Mr Williams that she was 14 before he assaulted her. Secondly, the assault consisted of an indecent (i.e., sexual) touching. Thirdly, the victim told Mr Williams to stop and move away, which he then did.
The Court approached the sentencing task in the following way. First, the crimes taken as a whole were regarded as very serious offending comprising “repeated violent conduct”.[8] Secondly, Mr Williams’ behaviour had had a significant and ongoing psychological effect on all of his victims. Thirdly, Mr Williams was given a discount of 30 per cent for his early guilty pleas, and he was sentenced on the basis that he was genuinely remorseful for what he had done, although the Court found it was hard to assess his “level of insight and active remorse”.[9] The Court further noted that Mr Williams was not working before being remanded in custody and that he had struggled with mental-health problems for many years. The Court referred to Mr Williams being a long-term patient of the Western Community Mental Health Service (“WCMH Service”) and referred also to Mr Williams’ diagnosis of schizophrenia.
[8] Ibid 35.
[9] Ibid.
The Court noted that Mr Williams was subject to a low level of supervision only through the WCMH Service and that he had not been properly medicated before being remanded in custody. The Court found Mr Williams was “a high risk of reoffending”.[10] The Court had regard to a report by a Dr White in this regard. The Court would have sentenced Mr Williams to a total aggregate sentence of two years, but this sentence was reduced by 30 per cent to one year, four months and 25 days. The non-parole period was fixed by reference to his personal circumstances and mental health conditions. Nine months and two weeks was fixed as this period.
[10] Ibid 36.
The Court found that there would have been no good reason to suspend the sentence even if that option had not been closed to it under South Australian law.
I have also had regard to Dr White’s report.[11] The report refers to Mr Williams having lived alone for about 12 months before he was jailed. His accommodation consisted of a two-bedroom Housing Trust unit in Taperoo, a western suburb in Adelaide.
[11] Ibid 97ff. This report is dated 4 February 2020, but this should read 4 February 2021.
Dr White refers to a mental-health report prepared by a Dr Geddes indicating that Mr Williams had been a long-term patient of the WCMH Service (since 2013 in fact). There is also a reference to chronic schizophrenia. It is reported by Dr White that Mr Williams was thought to experience ongoing auditory hallucinations, delusional ideation, and disorganised thinking. Dr White’s report, which he acknowledges was based on limited information due to Mr Williams’ lack of co-operation, records that Mr Williams was likely to have an intellectual disability, schizophrenia, and an antisocial personality disorder. Dr White indicated that compared to a so-called “normal” person, Mr Williams and his responses to his reality might lead to increased dysfunction and at times aggressive behaviour. Dr White further reported that Mr Williams’ general management was likely to be difficult, and that he was likely to require considerable support in the future if he were to continue to live independently. The prognosis was recorded to be “poor”. Mr Williams was found to lack both insight and an awareness of the need to change, and he is also recorded as having limited support from family and friends.
I have also examined Dr Geddes’ letter to the NDIS dated 20 May 2020, which is on the WCMH Service’s letterhead.[12] This records the significant difficulties Mr Williams experienced in living independently. I accept both these reports.
[12] Ibid 144-145.
I note also that Mr Williams has been frequently poorly behaved whilst in immigration detention.[13] This is not surprising given the content of the two medical reports to which I have referred.
[13] Ibid 203ff and Ex R4.
REASONS
I now turn to the Direction. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks that I repeat:
[30] 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).
[31] 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 (6). I set out some of the salient features of these principles.
[32] 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, non-citizens 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 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 is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. 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 and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] 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 primary considerations over other considerations.
I now turn to apply the Direction. There are five so-called “primary considerations” for me to address and weigh. The first primary consideration is the protection of the Australian community. Paragraph 8.1(1) requires me to bear in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by the non-citizen in question. I am to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they will not cause or threaten harm to individuals or the Australian community. I bear this principle steadily in mind.
I must also give consideration to the nature and seriousness of Mr Williams’ conduct to date and to the risk to the Australian community should he commit further offences or engage in other serious conduct. By paragraph 8.1.1(1), I must have regard to certain matters set out in subparagraphs (a) to (h). I accept that all of subparagraphs (i), (ii) and (iii) within subparagraph (a) apply. Mr Williams has committed violent crimes against women and a sexual crime against a child. I accept also that he has engaged in acts of family violence toward his mother that have involved the destruction of property in the family home, angry and verbally violent scenes, and at least some physical handling of his mother (although this was denied in evidence given by the mother). The mother gave evidence that she cannot have her son living with her any longer, which is a clear indicator of how disruptive his behaviour must have been.

I must have regard to the sentences imposed by the Courts. In this regard, it is sufficient to note that Mr Williams’ last sentence was a serious one. The collection of offences warranted prima facie a term of imprisonment of two years, which was only discounted on account of Mr Williams’ early guilty plea and his assumed remorsefulness. That sentence may well have been longer but for his personal circumstances and mental-health conditions. It is clear that the Court regarded the offending as serious, especially given the limited offending history that Mr Williams had up to that stage.[14]
[14] I note also the prefatory words in paragraph 8.1.1(1)(c). These words preclude sentences in respect of certain crimes being used to reduce the seriousness with which they are to be regarded.
There has been quite some offending in the course of 2020. There were breaches of bail and four offences including the offence against the child. There is a trend of increasing seriousness in my opinion, both stemming from the nature of the offending which bears a markedly more serious character than the earlier offending in the applicant’s life and stemming also from its intensity: the offending consisted of multiple offences in the course of 11 months. That is a serious matter. There is a cumulative effect of repeated offending, and I bear that in mind.
I must have regard to the risk to the Australian community as I have said. This is dealt with in paragraph 8.1.2 of the Direction. By subparagraph (1), I must have regard to the Government’s view that the Australian community’s tolerance of any risk of future 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 this principle in mind.
By subparagraph (2), I must have regard to two matters “cumulatively”. The first is the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct (i.e., this requires me to assume the conduct in question is perpetrated on a future occasion). The second matter is the likelihood of Mr Williams engaging in this conduct.
So far as the nature of the harm to individuals or the Australian community is concerned, serious concerns arise. The violent offending was perpetrated against women alone, not men, and I infer that all the victims were at a physical disadvantage to Mr Williams. That the victims were vulnerable in this way is no co-incidence in my opinion. The sexual offending was perpetrated against a child. In all of these cases, the applicant has chosen victims who were less able to withstand him. He has no, or very limited, insight into his offending in my opinion. That makes him a particular danger to the Australian community. As for the sexual offending, I note that the applicant desisted once the 14-year-old girl firmly and clearly told him to stop. On the other hand, I bear in mind that not all children will have the courage or presence of mind to resist the predatory advances of an older male. Accordingly, Mr Williams does pose, in my opinion, a serious risk to children, and the harm could well extend to a more serious assault than occurred on this occasion. Mr Williams was clearly looking for a sexual encounter as his conversation with the child demonstrated.
I note also the family violence. It would be a serious matter if Mr Williams were he to assault his mother again or disturb her domestic environment with further acts of damage to family property.
I must have regard to the likelihood of Mr Williams reoffending. In my opinion, the risk is high. I make this assessment for the following reasons. Mr Williams was living alone at the time of the most recent offending. He did not regularly take his schizophrenia medication. The evidence before me suggests Mr Williams had been living in squalid, or near squalid, conditions and was not able to manage basic tasks, and that he has experienced times of homelessness in the past. The evidence before me also suggests drug misuse (exacerbated by poor social associations) and a chaotic life. I bear in mind the nature of the mental illness (i.e., schizophrenia) and the evidence Mr Williams gave, which I accept, of voices he imagines he hears. I note that on the evidence before me he would not have settled accommodation on his departure from the detention centre if I set aside the decision under review. I would be surprised if the detention-centre authorities did not arrange some form of temporary motel accommodation for him on his immediate departure from detention; but I have no evidence before me that would suggest that there would be anything beyond that. Mr Williams would be at clear risk of homelessness and social isolation, as has occurred in his past. In these circumstances, there is no doubt in my mind that Mr Williams is at a high risk of reoffending, and this conclusion is consistent with the Court’s sentencing remarks.[15]
[15] Ex R1, 36.
Paragraph 8.2 of the Direction requires me to have regard to family violence. I note that subparagraph (1) records the Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia. In considering the seriousness of the family violence, I must have regard to the matters recorded in subparagraphs (3)(a) to (d). It is hard to gauge the level of family violence in this case. Mr Williams was mentally disturbed and was also abusing cannabis when he was living in the family home. Mr Williams’ mother, who is a concerned and decent community member, felt compelled to take the extreme step of requiring her son to leave the home. From all this I infer that there must have been a number of family-violence episodes. There is a cumulative effect of repeated acts of family violence and I take that into account. There has been, in my opinion, no rehabilitation in respect of the family violence, and I do not believe Mr Williams has any insight into his misconduct. This makes the family-violence consideration an important one in my opinion; however, I regard the risk of its recurrence as low (although not nil) because Mr Williams would not live in his mother’s home were he to be released from detention.
So far as the strength, nature and duration of Mr Williams’ ties to Australia is concerned, I believe this factor does weigh in favour of revocation. I think in particular that Mr Williams’ mother would face quite considerable emotional hardship if Mr Williams were deported to Liberia. All in all, I accept the delegate’s conclusion that this consideration weighs moderately in favour of revocation. I do not accept that the consideration should be given slight weight, as advocated by the respondent in its Statement of Facts, Issues and Contentions.[16] I prefer the delegate’s view in this regard.
[16] See Ex R3 [48].
I do not believe that the best interests of minor children in Australia is a consideration that weighs for or against Mr Williams. He has been a particularly disruptive member of his mother’s household and had developed antisocial drug-using habits. I do not believe that there are any strong ties between him and any minor children, noting that he is not the father of any child. I note that if he were to return to the community, Mr Williams would live alone as he has done in the past. In all the circumstances, this consideration applies neutrally.
I must have regard to the expectations of the Australian community. The Australian community expects non-citizens to obey Australian laws. There has been serious conduct in breach of this expectation and so “as a norm” the Australian community would expect the Government not to allow Mr Williams to remain in Australia. I acknowledge that principle set out in paragraph 8.5(1) of the Direction.
I note in particular that acts of family violence and the commission of serious crimes against women and children raise very serious concerns and are specified as types of conduct that give rise to character concerns that may make the non-revocation of the mandatory cancellation of a visa appropriate.[17] I acknowledge that I am to proceed on the basis of the expectations of the Australian community are set out in paragraph 8.5 without assessing them for myself.
[17] See paragraph 8.5(2)(a) and (c) of the Direction.
I am to have regard to other considerations. These include the legal consequences of the decision and the extent of impediments Mr Williams would face if he were removed from Australia. If I affirm the decision under review, one consequence could well be Mr Williams’ removal in due course to Liberia. If I affirmed the decision under review, Mr Williams would be removed to Liberia unless he were owed non-refoulement obligations. The delegate acknowledged that the applicant raised such obligations for consideration but was unable to form a final view on the matter.[18] The delegate then proceeded to weigh the prospect of the applicant returning to Liberia. The delegate accepted that if the applicant were to return to Liberia, he would suffer significant hardship upon his return, given the lack of adequate mental-health services in Liberia, the stigma associated with mental illness, and other factors. The conclusion expressed by the delegate[19] reflects my own. This consideration weighs significantly in Mr Williams’ favour.
[18] Ex R1, 25 [108].
[19] Ibid 27 [127] – [128].
I believe I should also address the alternative prospect of indefinite detention. This consideration would arise, in my opinion, if Mr Williams successfully demonstrated to the Government that he is owed non-refoulement obligations, but were refused a protection visa. In such a case, he could not be returned to Liberia mandatorily: see section 197C(3). The impasse could be broken only by the finding of a third country willing to receive him (the prospects of which were assessed as poor by the delegate)[20] or by the exercise of the Minister’s power under, for example, section 195A or 197AB of the Act. This possibility was appreciated by the delegate.[21] The prospect of indefinite detention is one that is of real concern, particularly given the plurality’s observations in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463 (“WKMZ”).
[20] Ibid 25 [109].
[21] Ibid 25 [113].
WKMZ is an important authority in this context. I do not accept Mr Ellison’s submission that ongoing detention with the regular administration of medication is, in Mr Williams’ case, a preferable outcome given the prospects of unregulated behaviour, non-compliance with medicinal regimes, and homelessness were he to be released from detention. I do not think it is appropriate for me to reason in that way. First, whilst clean accommodation, appropriate food, supervision, and the timely administration of medication are of assistance to Mr Williams, a detention centre is not a therapeutic environment for the mentally ill and is not intended to function as a hospital or a residence for the improvement of the wellbeing of schizophrenics. Secondly, I must give very serious consideration to Mr Williams’ right to liberty, which the plurality in WKMZ described as “one of the most basic human rights and fundamental freedoms known to the common law”.[22] Mr Williams is entitled to his personal liberty in spite of the real concerns that might arise for him on return to the community. I do not think I should make a decision that ongoing and supervised detention would on balance favour Mr Williams’ personal interests given the very serious weight that I should attach to his right to personal liberty.
[22] See WKMZ at [123].
So, on this alternative hypothesis, there is also a serious matter weighing in Mr Williams’ favour. I do note, however, that this is not a matter that is added to the weight of impediments on removal because the considerations arise under mutually exclusive hypotheses; namely, the first where Mr Williams is deported to Liberia and the second where he is not. They are not properly added to one another in the weighing process.
Finally, I note that if I affirmed the decision under review, I believe there would be a greater likelihood of Mr Williams being sent to Liberia or remaining in detention than of his returning to the Australian community in the foreseeable future (as the result of the grant of a protection visa or some other visa pursuant to the Minister’s personal powers).
WEIGHING THE CONSIDERATIONS
I turn now to weighing the various considerations. I acknowledge that, generally speaking, primary considerations should predominate over other considerations. There are very strong primary considerations arising in this case. Nevertheless, a powerful consideration arising under section 9 of the Direction may in the circumstances of an individual case outweigh even strong primary considerations.
So far as the first hypothesis is concerned (namely, that Mr Williams would end up being deported to Liberia if I affirmed the decision under review), I believe that the impediments he would face there do outweigh the very powerful considerations arising from his conduct to date (including family violence) and the ongoing high risk he poses to the community as well as the community’s expectations as given in paragraph 8.5. I appreciate that Mr Williams’ misconduct is of a type that the Direction addresses specifically. It gives rise to very serious concerns. Mr Williams would face, however, very serious difficulties in Liberia where he has no ready network of support. He slipped through the net, so to speak, in Australia and found himself living in very disadvantageous circumstances with poor compliance with his medicinal regime. This occurred despite all the advantages of Australia’s advanced economy, advanced healthcare system, and its social-welfare supports, and despite the presence of a mother (albeit not in the same home). One can imagine the very serious risks that Mr Williams would face in Liberia were he to return there alone. It is not farfetched to imagine that he would quickly fail to secure appropriate treatment. This would inevitably lead to unregulated behaviour in my opinion. That behaviour would then see him punished and living a marginal existence. Further offending in Liberia would expose him to the criminal justice system there but with the added disadvantage that he would be far less likely to receive appropriate treatment to prevent further misconduct. Returning Mr Williams to Liberia is a very serious step given his schizophrenia and the lack of medical and economic support he would face in Liberia. Mr Williams’ schizophrenia does place him in a special category. His situation should not be equated with that of other young men in Liberia.[23] In these unusual circumstances, I believe this consideration must weigh very powerfully in his favour. I note that the delegate also concluded that Mr Williams would face significant hardship upon his return to Liberia.[24]
[23] I note that the Direction requires me to consider impediments on removal “in the context of what is generally available to other citizens” of Liberia: see paragraph 9.2(1). But this does not prevent me from weighing how Mr Williams’ particular position may be markedly harder than that of other Liberian community members: see, for example, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92 at [47].
[24] Ex R1, 26 [120] and [127] – [128].
If the alternative hypothesis of ongoing detention were to occur, that scenario would also cause me to set aside the decision under review. Indefinite detention[25] inevitably involves a serious curtailment of personal liberty, and for a mentally ill person suffering from as serious a condition as schizophrenia, it is a particular and concerning burden. As I have earlier said, a detention centre cannot be equated with a mental-health facility designed to operate as a therapeutic environment to improve the wellbeing of patients, who are treated by qualified professionals. I do not doubt that the detention-centre staff do what they can to assist the mentally ill. But they are primarily charged with the safe custody of detainees, and not with their therapeutic treatment (although I acknowledge that mentally ill persons may be removed to a hospital environment if circumstances require it).
[25] “Indefinite” connotes in this context an ongoing detention “in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom”: see WKMZ at [123].
Given that my conclusion is the same in respect of both hypotheses, it is not necessary for me to decide which of them would be more likely to occur: they lead to the same outcome in this review.[26] I note that it would have been helpful to know the respondent’s view as to whether Mr Williams is owed non-refoulement obligations, but I was informed the respondent has not yet given detailed consideration to Mr Williams’ claims for protection.
[26] I note again my conclusion that, if I affirm the decision under review, one or other of these hypotheses occurring is more likely than Mr Williams receiving a protection or other visa to return to the Australian community: see [42] above.
CONCLUSION AND FORMAL DECISION
All in all, therefore, having applied the Direction, I conclude that, on balance, the correct or preferable decision on the evidence before me favours revocation of the cancellation decision. I find that there is “another reason” under section 501CA(4)(b)(ii) of the Act for the cancellation decision to be revoked.
My formal decision is to set aside the decision under review and to substitute a decision that the cancellation of Mr Williams’ visa be revoked.
I certify that the preceding forty-eight (48)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
[sgnd]
……………………………..
Associate
Dated: 15 November 2023
Date of hearing:  12 & 13 October 2023
Advocate for the Applicant:      Scott Jelbert,
Camena Legal
Advocate for the Respondent:  Tom Ellison,
Australian Government Solicitor