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

[2022] AATA 1381

YFYZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1381 (27 April 2022)

Division:GENERAL DIVISION

File Number(s):      2022/0898

Re:YFYZ

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:27 April 2022

Date of written reasons:        25 May 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 safe haven enterprise visa – applicant guilty of participation in cultivation and packaging of cannabis – non-refoulement obligations owed to applicant – applicant may not be returned to home country – prospect of indefinite detention if decision affirmed – full Federal Court decision in WKMZ considered - decision set aside and cancellation decision revoked

Legislation

Migration Act, 1958 (Cth)

Cases

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

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

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

25 May 2022

1. After delivery of my decision and oral reasons on 27 April 2022, I received a request for written reasons, which I now publish.  These are the reasons I read out on 27 April 2022 with minor amendments.

2. This is an application by YFYZ, to whom I shall refer as “Mr N”, seeking a review of a decision of a delegate of the respondent.  By that decision, the delegate refused to revoke the mandatory cancellation of Mr N’s visa.  Before its cancellation, Mr N was the holder of a safe haven enterprise visa, a form of protection visa, issued to him under the Migration Act 1958 (“the Act”).

3. Mr N’s visa was cancelled mandatorily under s.501(3A) of the Act after he was convicted of serious offences stemming from his involvement, on one occasion, in the unlawful cultivation of cannabis and, on a separate occasion, in packaging dried cannabis for distribution. He was sentenced to a lengthy period of imprisonment upon conviction. Relevantly, s.501(3A) requires the mandatory cancellation of a visa when the visa-holder is sentenced to a term of imprisonment of at least 12 months and when part of the sentence is required to be served full-time in a custodial institution.

4. There is no doubt that Mr N’s visa was appropriately cancelled in the first instance. Given this situation, the prime question the delegate was required to address when Mr N sought reinstatement of his visa was whether there was “another reason” for revoking the cancellation decision: see s.501CA(4)(b)(ii).  In reaching his or her decision in this regard, the delegate was required to apply Direction no. 90[1] issued under s.499 of the Act. In the event, the delegate decided that the cancellation decision should not be revoked.

   [1] 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 AND JURISDICTION

5. Hearing the matter afresh on the evidence adduced before me, I must decide whether “another reason” exists for the revocation of the cancellation decision. Like the delegate, I am obliged to apply Direction 90 when reaching this decision.

6. In these matters, the Tribunal exercises a de novo jurisdiction and reaches the correct or preferable decision on the evidence before it[2]. This means that the Tribunal may affirm the decision under review notwithstanding an error in the delegate’s reasons, if that is the correct or preferable decision to make on the evidence before the Tribunal; equally, the Tribunal 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, Ms Bones appeared for Mr N; Mr Li, for the respondent.  I am indebted to them for their assistance and measured advocacy.

   [2] See Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, at 589.

   STATEMENT OF CONCLUSION

7. I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr N’s visa be revoked.  I now turn to set out the background facts and my reasons for this conclusion.

   BACKGROUND FACTS

8. As I have said, Mr N was the holder of a safe haven enterprise visa, a form of protection visa under the Act. Mr N, a citizen of Vietnam, was born on 20 October 1995 in a Vietnamese village called Hung Tay in Nghe An province. He reached Christmas Island by boat on 19 March 2011 and was classified on landing as an “authorised maritime arrival”. Mr N has no family here in Australia.

9. A delegate of the respondent found in due course that Mr N was owed protection obligations under the Act in respect of the threat to his personal safety that might arise if he were returned to Vietnam; and, accordingly, a protection visa was granted to him on 13 January 2017. Further aspects of Mr N’s background are set out in a statement (see Exhibit A1 pp 3ff).  I do not need to recapitulate the contents of that statement but I have read it carefully.  Mr N’s evidence, which I accept, is that he was granted the right to seek paid work in 2015, and that he had various jobs from 2015 to 2018.  It has not been put to me by the respondent that the situation in Vietnam has changed so far as the threat to Mr N’s personal safety is concerned.

10. Mr N became involved in drug cultivation in 2018.  The material facts are set out in the Court’s sentencing remarks (see Exhibit R1, pp 32ff).  At the time of his offending, Mr N was living in a house where five rooms had been fitted out for cannabis cultivation. The police found 91 plants in the house ranging from 20 cm to 1 m in height.  They also found a further 201 seedlings.  It was accepted by the prosecutor that Mr N’s role was towards the lower end of a hierarchy in a broader criminal enterprise.  His role was to care for the plants and to pay the rent on the premises, but nothing further.

11. Mr N was arrested and charged on 1 October 2018, but he was eventually released on bail.  Whilst on bail awaiting trial, Mr N committed a further offence.  He assisted in the packaging of dried cannabis at certain private premises.  Police found nearly 23 kg of dried cannabis at these premises. Mr N returned to the premises while the police were there and he was arrested.

12. The sentencing Court, which dealt with both charges on a plea of guilty, referred to Mr N’s background, including his persecution in Vietnam, and to the fact that he had no family in Australia and some friends only.  The Court categorised the quantity of drugs involved in the first offence as “reasonably large” and the quantity involved in the second as “large”. The Court found that it was an aggravating feature of the second offence that it was committed whilst Mr N was on bail for the first offence.

13. In respect of the two offences, the Court decided that an aggregate sentence of three years and eight months was appropriate. For that reason the appropriate individual sentences of two years and two-and-a-half years were reduced to 18 months and 26 months respectively.  These were to be served consecutively.

14. In his evidence before me, Mr N indicated that he did not believe at the time that his cultivation of cannabis in the house (which was the subject of the first offence) was illegal.  He maintained that he now knows it to be an unlawful activity, but he said he was not aware of this at the time of his offending.  Mr N did not deny that he knew that he was committing an offence on the second occasion.

    DIRECTION 90

15. I now turn to Direction 90.  In Re Rai and Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119, I set out the background to the Direction at paragraphs [32]−[36], which I reproduce below:

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

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

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

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

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

    APPLICATION OF DIRECTION 90

16. I now turn to consider the primary considerations under the Direction.  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. I am directed to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they will be law-abiding and will not cause or threaten harm to the Australian community. I bear this consideration steadily in mind.

17. Paragraph 8.1(2) requires me to give consideration to the nature and seriousness of Mr N’s conduct to date and, secondly, to the risk to the Australian community should he commit further offences or engage in other serious conduct.  So far as the first factor is concerned, I am required to take into account a number of matters referred to in subparagraphs (a) to (g) of paragraph 8.1.1(1).  I note that subparagraph (a) and subparagraph (b) specify a number of offences that are deemed very serious or serious, respectively. In both cases, it is clear that the specified offences are not intended to limit the range of conduct that may be considered to be very serious or serious as the case may be.

18. In my opinion, it is appropriate in this case to regard Mr N’s conduct as very serious. The effects of drug misuse (including the misuse of cannabis) are of acute societal concern. Many people lead compromised, often ruined, lives as a result of drug misuse.  Drug addiction, which is one potential outcome of prolonged misuse, is a pernicious personal affliction, and, as is widely known, it is very hard to break an addiction.

19. It is also the case that drug trafficking requires the active co-operation of a number of people from cultivation through to manufacture and then on to distribution.  People who participate in the trafficking of drugs frequently contribute to the serious and strongly anti-social problem of organised crime gangs.

20. Moreover, there is no doubt that those who misuse drugs often end up imposing quite significant burdens on others.  Families (including partners and children especially) may suffer in all sorts of ways.  Families frequently bear the brunt of significant antisocial behaviour brought on by the misuse; and very often money which would otherwise be available and necessary for the support of family dependants is wasted on the purchase of drugs. 

21. Society suffers too.  Those who misuse drugs very often depend on health services and social-welfare payments when they might otherwise be employed, independent, and living without undue reliance on the state.  The widespread misuse of drugs represents a fundamental challenge to society.

22. The problems associated with illicit drug misuse and addiction in Australia are, I believe,  well known.  Drug misuse and addiction are quite widespread, and I proceed on the basis that Australian society is seriously challenged by this phenomenon.  I also proceed on the basis that anyone who has an involvement in the trafficking of a “reasonably large” or “large” amount of drugs – and I am now quoting the descriptions used by the sentencing Court in relation to the two charges laid against Mr N – engages in conduct that should be regarded very seriously indeed. 

23. Subparagraph (c) requires me to have regard to the sentence imposed.  I do so and I note that the overall sentence imposed on Mr N was a very significant one reflecting the Court’s estimation of the gravity of the offending.

24. Subparagraph (d) requires me to have regard to the frequency of Mr N’s offending and whether there has been any trend of increasing seriousness.  There have been two occasions of serious offending and I have regard to that fact. I regard the second offence as indicative of a trend of increasing seriousness.  Although the offences may be approximately equal when considered solely from the point of view of their individual gravity, the second offence was committed by Mr N when he was on bail and is, therefore, of a more serious nature, as indeed the sentencing Court itself noted.

25. I am instructed in subparagraph (e) to have regard to the cumulative effect of repeated offending and I do so.

26. Turning to a consideration of “risks to the Australian community”, I note that I must have regard to the principles in para 8.1.2(1).  Relevantly, this paragraph requires me to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal conduct, and I should have particular regard to the principle that remaining in Australia is a privilege conferred on non-citizens in the expectation they will be law-abiding and not cause harm to the Australian community.  I bear these principles in mind.

27. Subparagraph (2) requires me, relevantly, to have regard to “cumulatively” two matters; namely, the nature of the harm to the Australian community should Mr N engage in further criminal conduct and the likelihood of Mr N engaging in such further conduct.

28. So far as the first factor is concerned, I regard the nature of the harm to the Australian community should Mr N reoffend as very serious indeed. In this respect I believe I should proceed on the more general basis that Mr N has shown himself willing to engage in the trafficking of drugs.  In the circumstances of this case, I do not think I should differentiate between cannabis on the one hand, and, on the other hand, other, more serious drugs such as methamphetamine or heroin.  I think it is right to consider the range of criminal conduct of which Mr N might be capable in the future as including assistance in the trafficking of any illicit drugs.  On this assumption, were Mr N to engage in further criminal conduct, he would pose a most serious threat to the Australian community. I have already referred to the profound damage to the fabric of society that involvement in the illicit drug trade helps to cause.  I shall not repeat myself.

29. As for the risk of Mr N’s further engagement in criminal conduct, I assess it as “trending towards low”, to use the phrase employed by Mr Watson-Munro, the expert psychologist who gave evidence.  There are a number of matters that point in this direction. 

30. First, at the time of sentencing, Mr N had spent some 548 days in custody. The Court referred to a pre-sentence report, and this report, the Court observed, recorded that the experience of incarceration had already had a significant beneficial effect on Mr N.  The Court’s own conclusion was that Mr N was remorseful and presented a low risk of reoffending (see Ex R1, p36).  I accept that assessment although I must say that I have less confidence in the aspect of remorse.  Whilst I accept that Mr N expressed profound remorse before me, and was apparently credible, I must balance that expression against what I believe to be an implausible stance he adopted; namely, that he did not understand that he was doing anything wrong at the time of the commission of the first offence. I do not accept that evidence.

31. I have also had regard to the contents and reasoning of Mr Watson-Munro’s report (see Exhibit A1, pp 9ff). In that report Mr Watson-Munro concluded that the risk of recidivism was trending towards low provided there were ongoing support, supervision, and treatment in the community. I believe this conclusion is consistent with the sentencing Court’s remarks and with what I would independently have believed the case to be having heard and evaluated Mr N’s evidence.  I note that Mr Watson-Munro was cross-examined in respect of his conclusion (given Mr N’s stated position that he did not know that cultivating cannabis was wrong) and, as I understood his evidence, Mr Watson-Munro did not accept that statement by Mr N as true− at least he did not accept it fully.

32. I note further that Mr N was relatively young when he committed the offences.  He had not had a prior experience of significant time spent in gaol.  Mr N fully understands that were he to involve himself in further trafficking offences, he would face an increased penalty as a recidivist offender. He would also face the mandatory cancellation of any visa he holds and be detained with a view to his deportation to a third country (on the assumption that he could not be returned to Vietnam at that point in time due to a continuing risk of persecution).  He also understands that the likelihood of his receiving leniency from the Minister personally or his departmental delegates or from this Tribunal would be greatly reduced.

1. The deterrent effect of gaol and prolonged immigration detention is of particular significance in the case of first-time offenders. I believe a significant deterrent effect operates in this case.

2. I further accept that there are community supports in place for Mr N.  Mr Nguyen, who knows Mr N, was called as a witness.  He indicated that he has offered Mr N accommodation on his release from detention. Mr Nguyen will otherwise offer moral support to Mr N.  Mr N indicated in his evidence to me that, on release, he would wish to study to improve his employment options in the medium term. I regard his evidence in this regard as plausible. Mr N wishes also to re-involve himself in his Catholic community, which I also regard as a positive stabilising factor.  All in all, I have assessed the risk of Mr N reoffending as trending towards low (as Mr Watson-Munro indicated).

3. There is no evidence before me of family violence: outside detention, Mr N lived alone.  Furthermore, the best interests of minor children is not a relevant factor in this case.

4. Paragraph 8.4 concerns the expectations of the Australian community.  Subparagraph (1) refers to an expectation that non-citizens will obey Australian laws while in Australia. It refers also to the Australian community expecting “as a norm” that the Government will remove non-citizens who have engaged in serious conduct in breach of the expectation.  I acknowledge this provision.  I acknowledge also the principle in subparagraph (2) that non-revocation of the cancellation of a visa may be appropriate simply because the nature of the character concerns in issue or of the offences is such that the Australian community would expect that the person should not continue to hold a visa. I note that this principle can apply notwithstanding the fact that none of paragraphs (a) to (f) of subparagraph (2) is fulfilled.

5. I take into account these expectations. I note that I am to proceed on the basis of the Government’s views as articulated in paragraph 8.4 without assessing the community’s expectations in any particular case.  Furthermore, these expectations are specified to apply whether a non-citizen does or does not pose a measurable risk of causing physical harm to the Australian community.

6. I must have regard to so-called “other” considerations: see para 9. These are specified in a non-exhaustive list of four.  They must be taken into account, but only “where relevant”.

7. I do not regard the second of the four considerations (namely, the extent of impediments if removed) as applicable in this case. The evidence shows that Mr N is owed non-refoulement obligations: that was common ground before me. The Act, following its amendment last year, no longer authorises the removal of a person from Australia to a country in breach of Australia’s non-refoulement obligations where a person has applied for a protection visa and a protection finding has been made: see s 197C(3). Accordingly, I do not need to take into account the extent of impediments that Mr N would face if he were returned to Vietnam as he may not be returned there. I cannot meaningfully take into account the extent of impediments Mr N would be likely to encounter in a third country without knowing what, if any, third countries might be persuaded to take him. In any event, in the absence of supporting evidence, I do not think that I should proceed on the basis that Mr N is at all likely to be accepted by a third country. In the absence of supporting evidence, it seems to be to be a speculative hypothesis that a third country would take a convicted trafficker whom Australia does not wish to continue to have.

8. The “impact on victims” consideration is not applicable in this case.  I do not regard Mr N as having strong links to the Australian community.  All in all, I regard this consideration, if I am to attach any weight to it at all, as having at best a marginal impact only in favour of revocation of the cancellation decision.

9. This leaves the criterion of international non-refoulement obligations, under which I would propose to consider the prospect of continued detention.  I understand that it is accepted by the respondent that if I were to affirm the decision under review, Mr N could not lawfully be returned to Vietnam as a result of the recent amendments to s.197C.  That reflects my understanding of the situation.  As I have said, the prospects of a third country taking Mr N, who has been convicted of two offences connected with drug trafficking, would appear to be rather speculative on the face of matters; and, as I have said, no information was put to me suggesting that there is any likelihood of a third country accepting him.

10. This effectively means that the most likely consequence of my affirming the decision under review is a period of indefinite detention.  As matters presently stand, affirming the decision under review would lead to a situation where the detention would continue unless and until a third country were found that was willing to take Mr N (which I have already indicated is, on the evidence before me, a speculative possibility only) or until the Minister exercised his non-compellable personal power to grant Mr N a visa (for example, under s.195A). I was not provided with any information by the respondent as to the likelihood of such a visa being granted in this particular case or the likely timeframe within which such a decision might be reached. In my opinion, therefore, I should proceed on the basis that one possible consequence of my affirming the decision under review is a prolonged period of further detention.  In my opinion, that is a matter that weighs substantially in Mr N’s favour.

11. Mr Li submitted that the prospect of any prolonged detention as a result of my affirming the decision would be counterbalanced by the prospect of prolonged detention on the opposite hypothesis; namely, if I decided to set aside the decision under review.  For this reason, Mr Li submitted continued detention should be considered to be a neutral factor. 

12. Mr Li submitted in this regard that Mr N’s safe haven enterprise (“SHE”) visa has now expired and that he requires an extension of time within which to seek a further visa.  If I decide to set aside the decision under review, Mr N’s cancelled SHE visa would be reinstated, but it would be an expired visa.  Mr N would need an extension of time in which to apply for a further SHE visa and this would entail the exercise of a non-compellable ministerial discretion, as does the grant of a visa under s.195A, for example.  Mr Li submitted that while Mr N’s application for an extension of time is being considered and determined, he would remain in detention.  Furthermore, the extension might be refused.

13. Mr Li’s submission is correct as far as it goes, but I do not accept that there is a true equivalence between the two situations. I believe that I should proceed on the basis that the Minister is more likely to grant promptly an extension of time within which Mr N may make an application for a new SHE visa than he is to grant Mr N a section-195A visa, for example.  The decision to allow Mr N an opportunity to apply for a further SHE visa raises different considerations to those which would inform the grant of a section-195A, or other, visa.  The plain justice of the situation is that, if I set aside the decision under review and revoke the cancellation decision, Mr N should be granted an extension of time within which to lodge an application to seek a renewal of his expired SHE visa (because he was ineligible to seek a new or extended visa after his visa was cancelled by the Minister’s delegate).  Had his SHE visa still been in force, Mr N would have been eligible to seek its renewal without seeking an extension of time from the Minister.  The need for an extension of time has only arisen, as I understand matters, because the visa could not be renewed while the cancellation process (including a review in this Tribunal) was progressing.  In the exercise of his discretion, the Minister would be informed by this Tribunal’s merits review decision that the cancellation of Mr N’s visa should be revoked. 

14. In all the circumstances, I proceed on the basis that it is far more likely that the Minister would grant promptly an extension of time within which Mr N might seek a new or extended SHE visa (after the Tribunal revokes the cancellation decision) than it is likely that the Minister would exercise a power to grant Mr N a section-195A or other visa (if the cancellation decision is not revoked by this Tribunal) or find a third country to take Mr N.  Accordingly, I do not proceed on the basis that whatever I decide, the likelihood is that  Mr N will face an equally long period in detention.

    WEIGHING THE DISCRETION

15. I turn now to weighing the discretionary considerations in order to determine whether there  is another reason for the cancellation decision to be revoked.   Weighing the discretionary considerations in this case is a difficult matter.  Essentially, given the facts that I have found, the weighing process involves balancing, on the one hand, the primary considerations, all of which favour affirming the decision under review, against one other consideration favouring revocation of the cancellation decision; namely, the prospect of indefinite detention.

16. The plurality in the Federal Court decision of WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463 discussed this latter consideration at some length. It did so in the context of the Act before its amendment last year. As the Act stood at the time WKMZ was decided, s.197C required the removal from Australia of unlawful non-citizens as soon as practicable irrespective of Australia’s non-refoulement obligations: subs-s (1) and (2) stood without qualification.  Following the amendments last year to which I have earlier referred, the situation is a fortiori in respect of the significance of indefinite detention: there is no longer any statutory authority to remove a non-citizen to a country in respect of which the person has the benefit of a protection finding.

17. I have read the plurality’s reasons carefully. I begin by noting their remarks at paragraph [132]. It is noted there that the period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, since it is dependent on the completion of various inquiries. The plurality noted that the person concerned will have no accurate conception of when his or her detention might end. That observation holds true in this case as I have not been informed by the respondent of the likelihood of a third country taking Mr N, or of a visa being granted under s 195A, for example, nor have I information that suggests a final deadline by which a visa decision in Mr N’s favour will be made if a third country option has not been successfully arranged by then.

18. At paragraph [133] the plurality noted that the necessary administrative steps and enquiries may take a very long time, and not have any clear outcome, despite the presence of s.197C (which has, of course, been amended since the decision was delivered so as to no longer authorise the removal of Mr N to Vietnam).  I note further that at paragraph [136] the plurality noted that decision-makers in the position of the Tribunal are “not entitled to ignore the continued deprivation of liberty of a person while the executive pursues its policies to avoid refoulement”.

19. I repeat that the respondent has not put before me any indication of how long the period in detention in this case could be expected to be. I make clear that I do not proceed on the basis that the period of detention would be quasi-permanent, that is, that it would continue unless and until a third country indicated a willingness to take Mr N. That would be to impute to the Minister an intention to act in a highly injurious way towards Mr N by maintaining his deprivation of liberty on an open-ended basis, and I decline to impute that intention to the Minister. 

20. As the plurality noted, however, administrative processes to explore what other options there might be for the removal of a detainee to a third country may prove to be protracted.  There is, furthermore, no indication before me that the Minister is open to granting Mr N a visa to remain temporarily in the community  while options for his removal to a third country are explored.  That is an option for the Minister, but I would expect that option to have been put to me as one that is likely to be pursued in this case if that were indeed a likely scenario.  It has not been put to me.

21. The plurality in WKMZ referred, at paragraph [123], to liberty as one of the most basic human rights and fundamental freedoms known to the common law and, as such, the continued deprivation of a person’s liberty is a matter visa decision-makers− and I infer this Tribunal on review− should take into account.

22. I am conscious of the fact that the primary considerations should “generally” predominate under the Direction; but equally, I must give consideration to the facts of each individual case and in an appropriate case a substantial “other” consideration may tip the balance in favour of a revocation of the cancellation decision.  This is one such case. I believe I ought to attach very considerable weight to the prospect of indefinite detention in this case, in the sense which the word “indefinite” was used by the plurality in WKMZ. I do not overlook the very serious aspect of the Mr N’s offending in this case.  My earlier remarks demonstrate adequately, I believe, my view of the threat to a well-ordered society trafficking in drugs poses.  I acknowledge that even though the risk of Mr N reoffending is “trending to low”, that is a matter that is required under the Direction to be added “cumulatively” to the harm that society would suffer if a further offence were committed: it does not operate as a depreciating factor when risk is assessed under the Direction.

23. Nevertheless, Mr N’s liberty remains a most important factor in the weighing process, and I believe that the correct or preferable decision in the circumstances of this case is to find that there is, on balance, “another reason” under s.501CA(4)(b)(ii) warranting the revocation of the cancellation decision.

    FORMAL DECISION

24. I shall set aside the decision under review and substitute a decision that the cancellation of Mr N’s visa be revoked. 

    
    …………[Sgnd]……………

    Legal Administrative Assistant

    Dated: 25 May 2022

Date of hearing:	6 April 2022 & 7 April 2022
Advocate for the Applicant:	Ms Kate Bones, Legal Aid NSW
Advocate for the Respondent:	Mr Nathan Li, Wentworth Selbourne