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

[2024] AATA 966

YCNS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 966 (6 May 2024)

Division:GENERAL DIVISION

File Number(s):               2024/1076

Re:YCNS  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date of decision:                  6 May 2024

Place:Sydney

I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class WE (Subclass 050) Bridging E visa.

........................[SGD]................................................

Mr Rob Reitano, Member

CATCHWORDS

MIGRATION – visa cancellation – protection of the community – very serious criminal offending – risk of reoffending – expectations of the Australian community – nature duration and ties to community – legal consequence of decision – international non-refoulment obligations – impediments if removed – relevance of personal circumstances – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth)

Crimes Act 1900 (NSW)

CASES

CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
HZCP v Minister for Immigration and Border Protection [2019] FCAFC

SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, 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)

Department of Foreign Affairs and Trade, 'DFAT Country Information Report Sri Lanka (23 December 2021)

REASONS FOR DECISION

Mr Rob Reitano, Member

6 May 2024

1. The Applicant is citizen of the Democratic Socialist Republic of Sri Lanka (Sri Lanka) who arrived in Australia on 14 November 2012 when he was 32 years of age.

2. From 2 March 2020 the Applicant held a (Class WE) (Subclass 050) Bridging E visa (visa). This visa was granted to him because he was an applicant for judicial review of a decision to refuse him a Temporary Protection visa. The visa allowed him to stay in Australia either until 28 days after the judicial review concluded, or if his protection visa application was reconsidered as a result, until 35 days after that process was completed.

3. On 13 April 2023 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) was required to cancel the visa because of subsection 501(3A) of the Migration Act 1958 (Cth) (Act). The visa had to be cancelled because the delegate was satisfied that Applicant had been sentenced to 14 months imprisonment and was serving that sentence full time in a custodial institution.

4. On 19 February 2024 having received and considered representations made by the Applicant about whether the cancellation of his visa should be revoked, another delegate of the Minister decided that there was no basis to revoke the cancellation of the visa.

5. The Applicant asks the Tribunal to review that decision with a view to having the decision set aside and replaced with a decision revoking the cancellation of the visa. The effect of such a decision would be that the Applicant could remain in Australia living in the community until his judicial review application is completed, and if he is successful in that application until reconsideration of his Temporary Protection visa application, is completed.

6. I have decided to set aside the decision refusing to revoke the cancellation of the visa and to replace it with a decision revoking the cancellation of the visa. These are my reasons. 

   WHAT IS THE ISSUE?

7. The Minister has power to revoke a decision cancelling a visa on one of two grounds. The first, and the only basis for doing so in this case, is if the Minister is satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’.[1] The second basis is if the Minister is satisfied that the Applicant passes the character test in section 501 of the Act,[2] but that is not available in this case because of the Applicant’s sentence to 14 months imprisonment which means he fails the character test.[3]

   [1] Section 501CA(4)(b)(ii) of the Act.

   [2] Section 501CA(4)(b)(i) of the Act.

   [3] Section 501(7)(c) of the Act.

8. In a review of this kind the Tribunal stands in the place of the Minister and, so, it is the Tribunal that must be satisfied that there is ‘another reason’ to revoke the decision cancelling the visa for the cancellation to be revoked. It follows, that the only issue is whether I am satisfied that there is ‘another reason’ to revoke the cancellation of the visa.

   IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

9. Satisfaction about whether there is ‘another reason’ why the Minister’s decision cancelling the visa should be revoked requires the making of an evaluative judgment guided by Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction). The Tribunal is required by subsection 499(2A) of the Act to comply with the Direction.

10. The Direction identifies ‘principles’ which provide a framework to decide whether a decision to revoke a decision cancelling a visa should be made, and ‘considerations’ that are the matters a decision-maker must consider in making that decision. The ‘considerations’ need only be addressed to the extent that they are relevant.[4]

    [4] Paragraphs 5.2(6) and 6 of the Direction.

11. The ‘principles’ are relatively straightforward. They are:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[5]

    [5] Paragraph 5.2 of the Direction.

12. The Direction refers to two categories of ‘considerations’ which are referred to as ‘primary considerations’ and ‘other considerations.’ The ‘primary considerations’ relevant to this matter are:

    ·protection of the Australian community from criminal or other serious conduct;

    ·the strength, nature and duration of ties to Australia; and

    ·the expectations of the Australian community.[6]

    [6] Paragraph 8 of the Direction.

13. The ‘other considerations’ potentially relevant to this matter are:

    ·legal consequences of the decision;

    ·extent of impediments if removed from Australia; and

    ·other considerations that the Tribunal considers relevant, in particular the Applicant’s personal circumstances and history.[7]

    [7] Paragraph 9 of the Direction.

14. The Direction provides that, ‘primary considerations should generally be given greater weight than the other considerations’[8] The word ‘generally’ contemplates cases where it may not be appropriate to do that.[9] It will be seen that this is a case where I consider that it is not appropriate to give greater weight to the primary considerations because of its peculiar circumstances. No single ‘primary consideration’ or ‘other consideration’ is required to be given greater importance than any other. The importance attaching to each of the ‘considerations’ is left to the decision-maker. The Direction lays down within each ‘consideration’ particular factors which must be taken into account.

    [8] Paragraph 7(1) of the Direction.

    [9] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [76] (per Charlesworth J).

15. The process of weighing the ‘considerations’ involves engaging in an active intellectual process of evaluating each consideration and comparing them to determine which of them, or group of them, is of greater or lesser importance to the decision to be made. Sight should not be lost of the fact that the entire process has as its focus arriving at a decision about whether there is another reason to revoke a visa cancellation.[10]

    [10] CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [34].

16. The obligation ‘to consider’ does not involve completing a checklist or the application of some arithmetic or other formula.[11] The decision is likely to impact many people other than an applicant, such as an applicant’s children, immediate and extended family, friends and potentially others, so it is important to give genuine consideration to all matters.[12] There are also potential serious ramifications for the Australian community generally. This means it is necessary to consider the protection of the community against future criminal offending and misconduct, especially where past behaviour has been particularly egregious. There is also a need to pay regard to community expectations about a non-citizen’s offending.

    [11] Ibid at [38].

    [12] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].

17. The need to consider things must be undertaken with considerable care, involving as I have said, the weighing up of the importance of the private and public interests that might or will be affected, and reaching a firm and reasoned conclusion about their respective and relative importance. It is ultimately that to which the Direction is focused which when applied ensures that all relevant public and private interests are considered and weighed, given their respective importance, properly and appropriately.

18. I will deal with the considerations that are relevant or potentially relevant in turn, ascribe them weight and then balance them against each other to determine whether there is ‘another reason’ to revoke the decision cancelling the visa. Where I refer to matters that I am required to consider, those requirements arise from the terms of the Direction.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

19. I am required to consider the nature and seriousness of the Applicant’s conduct which includes both criminal offending and other conduct, and the risk to the Australian community, should he commit further offences or engage in other serious conduct. I must have regard to the fact that the Australian Government and community regard offences that involve crimes of a sexual nature and involving violence as very serious regardless of the sentence imposed.

20. In assessing the nature and seriousness of the Applicant’s offending I must have regard to the sentence imposed (in this matter part of the offending is very serious in any event as it involves violence against a woman), the frequency of the offending, the existence of any increased trend in seriousness, the cumulative effect of repeat offending, whether false or misleading information has been provided to the Department by not disclosing prior criminal offending and whether there has been reoffending after being warned in writing about the consequence of reoffending.

21. On 27 January 2023, the Applicant was convicted and sentenced in relation to two offences: one of sexual touching without consent and the other of intentionally choking a person without consent. The Applicant pleaded guilty to both offences and was originally sentenced to an aggregate sentence of 26 months imprisonment, but that was set aside and reduced to 14 months imprisonment with an eight month non-parole period on appeal.

22. The circumstances that led to the convictions are recorded in the transcript of the proceedings before the Local Court albeit that the sentence imposed by that court was set aside on appeal.  The events took place on the afternoon of 7 September 2022 at a boarding house where the Applicant and the victim lived. The Applicant lived on the second floor and the victim, a woman with Down Syndrome, lived on the first floor. They knew each other. The victim was outside her apartment smoking a cigarette when the Applicant approached her and asked to see her room. When they went to the room the Applicant started touching the victim by grabbing her breasts with both hands. He squeezed her nipples which caused her pain. The Applicant then fondled her breasts and buttocks. The victim asked the Applicant to leave and started to leave the room. The Applicant wrapped his arm around the victim’s neck, choking her for about seven seconds and said, “I want to fuck you”. The victim began to scream and cry as the Applicant continued to grope her. Another resident came to her rescue and told the Applicant to let the victim go and to leave. The Applicant left but continued to knock on the victim’s door for some time afterwards.

23. Although the Applicant pleaded guilty to the offences and in doing so admitted the facts behind the convictions, he denied the facts in the hearing before me. In his evidence he said that he was invited by the woman into her room and once there she attempted to “hug him” and he pushed her away. It was then that she accused him of assaulting her. This was consistent with the Applicant’s denials to the police of what was alleged, what the Applicant later told one of the psychologists he saw and what he also told at least one other person. The Applicant says he pleaded guilty because he understood that if he did so the matter would be dealt with more quickly and he would receive a shorter sentence.

24. I am unable to go behind the conviction and the facts on which it is based.[13] I will proceed on the basis that the facts giving rise to the conviction as recorded in the transcript of the proceedings in the Local Court are the facts that I must consider.

    [13] HZCP v Minister for Immigration and Border Protection [2019] FCAFC at [77] – [78]; [181] – [182].

25. The offending is objectively very serious for several reasons. First, a sentence of 14 months imprisonment is a significant sentence. Second, each of the offences carried a maximum penalty of 5 years imprisonment which indicates the legislature regards offences of that kind to be serious.[14] Third, the offences were made more serious, by the fact that they were committed in the victim’s home, where she was entitled to feel safe, and were committed against someone with a vulnerability, namely Down Syndrome. Fourthly, violent and sexual offences are, and are to be regarded as, themselves very serious.

    [14] See section 61KC and section 37 of the Crimes Act 1900 (NSW).

26. The Applicant has also been found to have committed three other offences, albeit with no conviction recorded for any of them, and he was granted the benefit of a good behaviour bond and a conditional release order for them. The first two offences involved hindering a police officer doing his job and assaulting a police officer doing his job shortly before Christmas in 2014. The Applicant says the offence was the result of a misunderstanding on his part that two policemen were being aggressive towards him when in fact they were not. I have no reason to disbelieve him. The Applicant was placed on a 12 month good behaviour bond for those offences. The other offence was for shoplifting in December 2021 for which the Applicant was placed on a conditional corrections order for nine months.

27. The Applicant’s offending is infrequent. It cannot be said that there is any pattern to the offending either in time or the kind of offences. It does involve an escalation in seriousness from things that were at the very lower end of seriousness to offending at the higher end of seriousness. The kind of offences committed in 2014 and 2021 pale in significance compared to the offences committed in September 2022.  The offences committed in September 2022 are to be regarded as being very serious and so, the Applicants overall offending should be regarded as very serious.

28. Next, I must consider the nature of the harm to individuals should the Applicant reoffend. The Applicant’s offending involved causing immediate distress to the victim evidenced by her crying and screams for help.  It also involved her suffering physical pain. There was not much more evidence than those things being the consequence of the Applicants offending but it is reasonable to presume that the consequences were likely to be, or potentially likely to be, significant and ongoing for the victim. If repeated, the consequences of sexual and violent offending of a similar kind to members of the community are very serious, both with the potential to cause physical and psychological harm.

29. Finally, I must consider the likelihood of the Applicant engaging in criminal conduct in the future. I am required to assess this having regard to the available evidence and information.

30. There are some important factors that suggest that the Applicant’s risk of re-offending is likely to be low.

31. First, he has expressed remorse for his offending, stating that his “heart felt remorse for all the offenses (sic) and charges since 2014”, that he is “extremely sorry for what I have done” and “I am truly sorry for all the offences and the hurts (sic) I have caused to others”. While giving evidence at hearing, it appeared that the Applicant’s demeanour conveyed a genuine commitment to not offending again.

32. Certainly, the context of the Applicant’s statements of remorse must acknowledge that despite having pleaded guilty and being convicted, the Applicant has consistently, other than by entry of his plea, denied involvement in the actions which led the to the convictions for two very serious offences. The Applicant’s remorse was for, it seems, for his drinking. I accept the Ministers submission that the Applicant’s failure to accept his wrongdoing casts doubt upon the reality of any expressed remorse and is suggestive that the Applicant’s remorse is more about the predicament he now finds himself in than for his wrongdoing. Nonetheless, I do consider that that the Applicant’s insight into the connection between where he is today, and his alcoholism is indicative of some remorse even though he claims he was not affected by alcohol at the time of his most serious offences. The Local Court Magistrate when sentencing him clearly proceeded on the basis that he was. In addition, his lack of remorse is only one factor that is relevant to the risk of reoffending.

1. Second, he has undertaken some practical steps towards rehabilitation in attending drug and alcohol counselling and counselling under the auspices of the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors. That counselling has been ongoing for some time. I accept the Applicant’s evidence that he intends to continue with it. The Applicant, as I have said, did show some insight into the relationship between his offending conduct and alcohol.

2. Third, the Applicant has had support from a volunteer carer from the Sutherland Shire Refugee Connection which is an organisation that would appear to have as its object assisting people in similar circumstances as the Applicant. That carer has cared for the Applicant over several years including whilst he has been in detention. Her support for him over a long period of time and the likelihood that she will remain in contact with the Applicant is important so far as his likelihood of reoffending is concerned.

3. Fourth, the Applicant has now had the experience of being in prison and in detention. That is a matter that must be taken to have some rehabilitative effect particularly given that his liberty has been removed for more than 18 months when it was initially contemplated that his non-parole period would only be eight months. That is a matter that must reasonably be seen to have some deterrent effect.

4. On the other hand, the Applicant does not have much more by way of immediate support in the community other than the volunteer carer to whom I have referred. He does not have anywhere to live should he be released from detention. He does not have employment arranged. He does not have a family or a community of friends available to him. It is relevant that this situation appears to be quite similar to his circumstances during most of his time in Australia before he committed the two very serious offences. His lack of a social network does not seem to have been a major contributing factor to his offending.

5. I have no expert information before me, but based on the information I do have, I incline to the view that the Applicants risk of reoffending is in the low range. I consider his experience of time in a corrections facility and in detention and the effect of him facing what he considers to be the prospect of going back to Sri Lanka, which I consider he genuinely fears, has had a significant effect such that he will be deterred from offending again. His evidence that he is determined to overcome his problems with alcohol impressed me also, such that I consider he is genuine about his commitment to stay alcohol free. Although his continued denial of his offending is troublesome, I do not overall consider that it suggests an increased risk of re-offending given the reality in his mind about the consequence of re-offending.

6. The Minister suggested that because the visa was a bridging visa it would allow the Applicant to remain in Australia for an indeterminate period and that this heightens the risk of re-offending. I do not consider that simply because the period the Applicant will remain in the Australian community increases his risk of re-offending. In this respect, my consideration of his risk of reoffending is no different from the approach I would take if the visa was a more permanent visa. The indeterminate period for which the visa permits the Applicant to remain in Australia does not to my mind affect his likelihood of reoffending in any material way.

7. I should add that to suggest that the Applicant has ‘sexual violence issues’ overstates the Applicant’s offending. He has one instance of offending in a sexually violent way. None of his other offending is of that character and there is no history of other conduct of any sexual and violent kind that would suggest the Applicant has some ongoing behavioural problem which involves sexual and violent conduct. I also do not accept that the offences here are of such a nature that any risk of repetition is unacceptable mainly because albeit very serious they are not at the highest level of seriousness and in my assessment the risk of reoffending is low.

8. The nature and seriousness of the Applicant’s criminal conduct is very serious and that the consequence of him reoffending, should he do so, will be very harmful to members of the community. The risk of the Applicant reoffending is low. This consideration weighs against revoking the decision cancelling the visa but not strongly so.

   STRENGTH NATURE AND DURATION OF TIES TO AUTRALIA

9. I must consider the impact of my decision upon the Applicant’s immediate family members in Australia where they are Australian citizens, Australian permanent residents or people with a right to lawfully remain in Australia indefinitely. I am required to give more weight to this consideration where the ties involve children who are Australian citizens, permanent residents or who are entitled to remain in Australia indefinitely. I must consider the strength, duration and nature of family ties or social links generally to people in those categories.

10. I must also consider the strength, nature and duration of other ties to the Australian community. I am to do so with reference to the length of time the Applicant has resided in the Australian community and give more weight to the time the Applicant has contributed positively to the Australian community and less weight to the time the Applicant was not in Australia during his formative years and where the offending started soon after arriving in Australia. 

11. The Applicant has no immediate family in Australia. The Applicant has been in Australia for nearly 12 years and did not commit any serious or very serious offences until September 2022, after he had been in Australia for more than ten years. He has been employed in various positions during his time in Australia doing farm work, cleaning, factory and construction work.  He has some ties to the Sutherland Shire Refugee Connection and, in particular, one volunteer carer from that service who has been assisting the Applicant for some years, including in relation to this matter. He also now has a tie to a Uniting Church who also stands as a leader in the Tamil community in Sydney but that is very recent. He has some association with the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.

12. Although he has no family ties to the Australian community, the Applicant’s relatively long time in Australia, over ten years without serious offending, and his employment during that time count for something. His few but meaningful connections to the community carry some weight as well. This consideration in my assessment carries weight in favour of revoking the cancellation of the visa.

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

13. I am required to give weight to the expectations of the Australian community. The expectation is that people who are allowed to live and be in Australia will obey Australian laws and that where someone who has been permitted to stay in Australia ‘has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia’.[15]

    [15] Paragraph 8.5 of the Direction.

14. This means that ‘non revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not … continue to hold a visa.’[16] Specifically, the expectation is that a visa should be cancelled if character concerns are raised through conduct involving acts of family violence, the commission of serious crimes against women or children, or commission of crimes against government representatives, amongst others.

    [16] Ibid.

15. I must decide what weight is to be given to the community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[17] This involves an evaluation about how strong this factor is in the particular circumstances of the case.

    [17] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).

16. The nature of the criminal offending is very serious because it involves sexual and violent conduct. Against that, is the fact that the offences are not in the category of the ‘particular’ offences identified that make non revocation appropriate ‘simply’ because of the nature of the offences, and that he has only committed two very serious offences. Having regard to these factors, the expectations of the Australian community weigh moderately in favour of non-revocation.

    LEGAL CONSEQUENCES OF THIS DECISION

17. This consideration requires me to consider what will happen should the Applicant’s visa not be restored. In ordinary circumstances a person who is not a citizen and who does not hold a visa is liable to be removed from Australia as soon as is reasonably practical. In the period before removal a non-citizen will be placed in immigration detention. A non-citizen who is the subject of a protection finding within the meaning of the Act will not be removed from Australia. I do not need to concern myself with that here as the Applicant is not a person who is the subject of a protection finding.

18. A person who is not a citizen may make a claim engaging non-refoulment obligations. This is the obligation not to forcibly return, deport or expel to a place where they will be at risk of harm. The obligations arise under various international instruments to which Australia is a party. In a case where an applicant who is not subject to a protection finding makes a claim which may give rise to non-refoulement obligations they are required to be considered.

19. The Applicant claims that he fears harm in Sri Lanka due to his actual, suspected or imputed links with the Liberation Tigers of the Tamil Ellam (LTTE) a militant separatist movement in Sri Lanka that has long sought a separate state for the Tamil people.

20. The Applicant’s basis for his fear arises from his experience in Sri Lanka before he came to Australia. The Applicant was either a member of the LTTE or suspected of being a member of the LTTE. I do not consider that much turns on the difference on my consideration of the matter mainly because either would give rise to potential non-refoulment obligations. I should observe though that it is probably unsurprising that the Applicant may not have been willing at various times whilst in Australia to admit to his LTTE membership, if he was in fact a member, given that, to some, membership of such an organisation is, in neutral terms, likely to be viewed unfavourably.

21. The evidence of the Applicant in this review and in the Immigration Assessment Authority (IAA) was that in 2009, he was detained by the Sri Lankan Criminal Investigation Department (CID) and questioned about his suspected involvement with the LTTE. He says he was tortured and had two of his fingers broken. He was released after three days on condition that he would report when required. About three months later he was required to report but did not do so for fear of being tortured. He was again detained and beaten over a day and a night and eventually released. In 2012, he was again detained and whilst detained overheard one of his captors say “we should kill him”. He was eventually released. He believes the CID have tried to ascertain his whereabouts since his departure.

22. I approach this evidence with care having regard to some of the Applicant’s evidence more generally that disclosed inconsistencies, but like the IAA, I accept the Applicant was subject to some of the kinds of harm he describes whilst in Sri Lanka largely because I consider that the kinds of trauma the Applicant has experienced are likely to have affected his recall. The IAA found that ‘It is plausible, and I am prepared to accept that while detained by the CID he was physically mistreated and his fingers broken, noting various source [sic] have reported on the mistreatment of detainees and the widespread use of torture in interrogations’. I have no reason to depart from that. The IAA rejected other aspects of the Applicant’s evidence about the harm he said he suffered in Sri Lanka and his dealings with or monitoring by the CID.

23. Although I accept that that the Applicant genuinely believes that his life will be in endangered if he is returned to Sri Lanka, I do not consider it appropriate to finally deal with his claim that he has a well-founded fear of persecution if returned to Sri Lanka. There are three reasons for this.

24. First, the Applicant has already made an application for a protection visa which as I have mentioned is the subject of an application for judicial review. This is not a case ‘[w]here it is open to the non-citizen to apply for a protection visa’ but rather a case where such an application has already been made and so far as things stand at present has been unsuccessful. The Direction contemplates that where no application has been made for a protection visa, but it is open for an Applicant to do that, it may be appropriate to defer to that process consideration of non-refoulment obligations. In circumstances where that process has already been engaged but is yet to be completed it is even more rationale to allow that process to take its course than deal with the issue here. This is particularly so where on the face of things it is apparent that the decision makers, originally a delegate of the Minister and then the IAA had more information available to them than is before me. In particular, they had an interview with the Applicant and a post interview submission. 

25. Second, I should not engage in a process that would involve at least to some extent pre-empting the judgment that might result the judicial review process. That process is underway and should run its course.

26. Third, is the fact that this review is concerned with the cancellation of a bridging visa and not the refusal of the Applicant’s application of a protection visa. The consequence of this application will not involve the Applicant being returned to Sri Lanka: that will be the consequence of an ultimately adverse outcome of the judicial review application associated with the protection visa. If the cancellation of the visa is not revoked the Applicant will remain in immigration detention until the judicial review process is complete and whether he remains in Australia or not will depend upon the outcome of that process. If the cancellation of the visa is revoked the Applicant will be able to live in the community, subject to the conditions of the visa, and whether he is permitted to remain in Australia will depend upon the ultimate outcome of the process of judicial review.

27. I should nonetheless take into account that one consequence of refusing to revoke the cancellation of the visa will be that the Applicant will remain in detention until his protection visa application is finalised. That is significant not just because it involves a significant incursion upon the Applicant’s fundamental right to freedom, but also because it is on top of his 8 months in gaol and almost a year in detention. The time at which his detention will end, and the time at which the judicial review process will finally conclude, is unknown. It has been on foot for some years already. The Applicant will be in detention for an unknown and indeterminate period. The Minister suggested that the judicial review process will be completed more quickly should the Applicant remain in detention. I do not consider that that justifies the Applicant having his right to freedom removed. This consideration counts firmly in favour of revoking the cancellation.

    EXTENT OF IMPEDIMENTS IF REMOVED

28. This consideration requires me to consider the consequence for the Applicant should the visa not be restored and he is required to return to Sri Lanka and re-establish his life there. The Minister submitted that as I am dealing with a bridging visa this consideration is irrelevant because the Applicant will not be returned to Sri Lanka as result of any decision in this review but will instead remain in detention until the outcome of the judicial review is known. The Minister submits that it will be the ultimate outcome of that process that will determine whether the Applicant returns to Sri Lanka. I accept the Minister’s submission, so that this consideration is irrelevant. I need not consider it further.

    ANOTHER CONSIDERATION

29. The Direction allows a decision maker to deal with other matters that might be relevant to the question of whether there is another reason to revoke a decision cancelling a visa. I raised with the Minister’s representative whether I was entitled to take into account the Applicant’s personal circumstances and history as ‘another consideration’ relevant to this review and was told I could do so.

30. The matters I specially identified as relevant concerned the Applicant’s particular circumstances where he fled Sri Lanka in 2012 because, whether rightly or wrongly, he feared for his safety. The inevitable consequence of that was separation from his then wife and his two young children. He has had no contact with his children for many years.  He has suffered from post-traumatic stress disorder since then. In 2016, his father died and in 2022, his mother died. In 2019, and again a few years later, he was subject to two violent attacks whilst living in the community in Australia. In one of those attacks, he was struck on the head with a hammer and suffered an injury. He has no contact with any of his brothers who live in either France, Sri Lanka or India. He has no ongoing connection with his country of citizenship. He has, albeit potentially, an unfounded real fear about returning there.

31. The Applicants personal circumstances require consideration with compassion. His adversity and suffering over more than a decade are something that weighs in favour revoking the cancellation of the visa. 

    THE RELATIVE IMPORTANCE OF THE CONSIDERATIONS

32. I have found that the protection of the Australian community weighs slightly in favour of not revoking the cancellation of the visa because the Applicant is in my opinion unlikely to reoffend. I consider that the expectations of the community weigh slightly in favour of non-revocation but having regard to the Applicant’s particular circumstances that I have identified, I do not consider this consideration is that important in the weighing exercise.

33. I consider the Applicant’s ties and contribution to the community are important but not overly so. I consider amongst all of the considerations the most significant is the Applicant being further in immigration detention for an unknown and unidentified period of time into the future. This, in context, is after his almost 12 months in immigration detention already which followed his eight months in gaol. The deprivation of the Applicant’s fundamental freedom is also in circumstances where he has endured considerable suffering in Sri Lanka and Australia.  I consider that the Applicant remaining in immigration detention, the legal consequences of the decision, and his personal circumstances are much more important and outweigh the considerations of the protection of the community and the expectations of the community in this matter.

    THERE IS ANOTHER REASON TO REVOKE THE CANCELLATION

34. The evaluation of all the relevant considerations points in favour of there being another reason to revoke the cancellation of the visa. That reason lay in the fact that the Applicant should not in all the circumstances be deprived of his fundamental right to freedom.

35. I  set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class WE (Subclass 050) Bridging E visa.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

........................................................................

Associate

Dated: 6 May 2024

Date of hearing:	22 April 2024
For the Applicant:	Self-represented
Solicitor for the Respondent:	Mr M Gao, HWL Ebsworth Lawyers