CPDL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1082 (11 April 2022)

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CPDL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1082 (11 April 2022)

ADMINISTRATIVE APPEALS TRIBUNAL	)
	)	No: 2022/0564
GENERAL DIVISION	)

Re: CPDL
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

TRIBUNAL: Senior Member Dr N A Manetta

DATE OF CORRIGENDUM: 12 May 2022

PLACE: Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

In paragraph [58], line 11: delete “is unlikely to be at all” and substitute “will be”.

And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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.

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – serious acts of violence – at least moderate risk of recidivism – other factors – realistic prospect of indefinite detention as applicant is owed non-refoulement obligations but may not be given a protection visa as he is presently a danger to the Australian community – decision under review set aside and in substitution decided that visa cancellation be revoked

Cases
WKMZ v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55

Deng v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2119

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

1. After I delivered my reasons orally, I received a request for written reasons, which I now publish. These are the reasons I read out to the parties on 11 April 2022 with minor amendments.

2. This is an application by CPDL, to whom I shall refer as “Mr K”, seeking a review of a decision by the respondent’s delegate not to revoke the cancellation of his visa. The cancellation had earlier taken place mandatorily under s.501 of the Migration Act, 1958 (the Act). The cancellation had come about because Mr K, having been convicted of a serious offence involving violence towards a former partner, received a lengthy sentence and was serving part of the sentence on a full-time basis in gaol.

3. It was not disputed by Mr K that his visa was appropriately cancelled in the first instance by the delegate. On my review, it is clear that this concession was appropriately made. The critical question before the delegate was whether there was “another reason” for the mandatory cancellation to be revoked: see s.501CA(4)(b)(ii). The delegate decided that there was not “another reason” to warrant the revocation of the mandatory cancellation, and so Mr K’s application to have the cancellation revoked was refused.

4. Hearing the matter afresh on the evidence adduced before me, I must decide whether another reason exists for the mandatory cancellation to be revoked. I must reach my decision de novo on a consideration of the evidence adduced before me. This means 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 adduced 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. At the hearing before me, Mr McKenna appeared for the applicant; Mr Kyranis, for the respondent.

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

6. On the evidence before me, Mr K is a citizen of Uganda. He was born in either 1991 or 1994, but for the purposes of my review it does not matter which year is correct. Mr K arrived in Australia in 2010 on an XB subclass 200 visa. He came with five siblings to join his father, who was living in Melbourne at the time. His father had earlier received a refugee visa from the Australian Government. This visa had been granted to the father on account of his persecution by the Ugandan government. The head of that government is still in power. I note further by way of background that Mr K’s parents separated when he was a boy, and his mother, who has remained in Uganda, remarried in due course.

7. So far as Mr K’s personal circumstances are concerned, he has had three relationships in Australia. Each relationship has led to the birth of a child. The three children are S (born to a Ms N), J (born to a Ms T), and A (born to a Ms M). None of the mothers is presently a partner to Mr K.

8. There are three groups of offences that are referred to in Mr K’s criminal record: see Ex R1 at pp 32-33. I turn now to these offences. On 12 April 2016, Mr K was sentenced before the Ipswich Magistrates Court in relation to two counts of serious assault upon a police officer. The offences had been committed on 5 March 2016 and were punished by sentences of two months and four months, respectively. The sentences were to be served concurrently, but it appears parole was granted immediately. One of the assaults involved biting and/or spitting. I note the offences were serious enough to warrant the imposition of gaol terms. I bear that in mind.

9. The second group of offences concerned certain events on 29 July 2017. On this date Mr K was in a bar and Ms N, his former partner − and I emphasise that she was a former partner at that stage – also happened to be in the bar, together with a male companion. An argument took place, caused apparently by Mr K’s jealousy. Mr K, Ms N, and her companion all left the bar at the same time. Mr K then assaulted Ms N outside the bar. The sentencing Court referred to the assault as “quite vicious” (Ex R1, at p 40) and the Court further noted black eyes, lacerations, and bruising as resulting injuries (see at p 40).

10. Furthermore, Mr K was found guilty of contravening a domestic violence order on this occasion and was also responsible for assaulting or obstructing a police officer. In relation to the offence of assaulting or obstructing the officer, a fine of $400 was imposed. A degree of leniency was extended to Mr K given his background in Uganda (which the Court said involved trauma). For his assault upon Ms N, Mr K was sentenced to three months’ imprisonment together with a probation period of 18 months.

11. The third series of offences occurred on 11 May 2019. These are set out at Exhibit R1, pages 32-33. I will not recapitulate all the offences that are there listed but I have had regard to them all. The circumstances of the offending are recorded in the Court’s sentencing remarks delivered on 13 March 2020 (Ex R1 at pp 34ff).

12. I draw the following from the sentencing remarks. The offending involved the same former partner, Ms N. The Court referred to the fact that the relationship between Mr K and Ms N had ended because of his violence towards her (p 35). I proceed on the basis that this observation is accurate. Mr K and Ms N had been attending a birthday party for their son. Mr K had been drinking excessively and was being driven home by Ms N and a friend. Ms N had to pull over because of Mr K’s verbal abuse. He then punched her in the head several times, so seriously in fact that a laceration was caused which would later need stapling in hospital. Mr K also choked Ms N so that she could not breathe properly. The friend managed to pull Ms N from the car and together they ran away to avoid further assault. Mr K then climbed into the driver’s seat and drove at Ms N. The Court found that Mr K was driving dangerously. The car mounted the kerb and struck Ms N with sufficient force to cause her to fall and roll several times. Mr K threatened to kill her as these events were unfolding. Mr K then drove the car into a wall, reversed, and then attempted to drive at Ms N again, but was thwarted when the car collided with another vehicle.

13. The sentencing Court noted that Mr K’s offending breached his probation order. Mr K was found guilty of one count of assault occasioning harm, one count of choking, one count of a malicious act with intent, one count of the dangerous operation of a motor vehicle, two counts of wilful damage, and one aggravated contravention of a domestic violence order as well as the summary offence of unlicensed driving. The sentences imposed by the court are set out at Exhibit R1, p 36. I shall not set them out, but they were lengthy and reflected the gravity of the offending. The Court explicitly described the offending as “very serious” and “absolutely deplorable” (at p.35).

14. In deciding whether there was “another reason” warranting the revocation of the cancellation decision, the delegate was bound to apply Direction 90 issued under s.499 of the Act. I, too, am bound to apply Direction 90 as part of my review.

15. I set out the background to the Direction at paragraphs 32ff of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2119. I quote these paragraphs again:

“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.”

16. I now turn to consider the primary considerations under Direction 90. The first primary consideration is the protection of the Australian community.

17. 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 should have particular regard to the principle that remaining in Australia is a privilege conferred on non-citizens in the expectation that they be law-abiding and not cause or threaten harm to individuals in the Australian community. I bear this requirement steadily in mind.

18. I must consider the nature and seriousness of Mr K’s conduct to date and the risks to the Australian community should Mr K commit further offences or engage in other serious conduct: see para 8.1(2).

19. I have already referred to the nature of Mr K’s offending. In my opinion, the offending is very serious indeed. It has involved violent crimes against a former partner and police officers. The most recent assault on Ms N was particularly serious and represented a marked and very concerning escalation of considerable violence and brutality. It is also clear from the sentencing remarks that Mr K had threatened to kill his former partner when he struck her with the car and, very concerningly, he was intent on striking her again, but was, fortunately, frustrated in this attempt by the presence of another vehicle. The offending also involved the dangerous operation of a motor vehicle on a public road, which had implications for other road users.

20. I note that the offending involved verbal abuse which then escalated to a violent physical attack upon Ms N and culminated in the misuse of a car to strike her. All this must be considered against the background of an earlier assault upon the same victim, which I have described, and the undoubted violence in their domestic relationship when they were cohabiting. The seriousness of all this offending must be rated as very high indeed.

21. I also regard the assaults on the police officers as serious, involving as they do both defiance of the law and the demonstration of disinhibited behaviour towards officials whose primary responsibilities include maintaining peace and good order in the community.

22. Mr McKenna submitted that the offending did not involve acts of “family violence” as defined in the Direction because the violence was directed toward a former partner. The definition of “family violence” under the Direction refers to violence directed toward a member of the perpetrator’s family, but not to a former member. I was referred by Mr McKenna to the authority of Deng v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 in this regard.

23. The definition in the Direction does cause difficulties, limited, as apparently it is, to present members, rather than both present and past members, of the perpetrator’s family. In this case, I note that Mr K and his partner have a child together.

24. I doubt that the concept of family violence, given the drafting of its definition in the Direction, extends in its terms to violence to former domestic partners where neither person acknowledges a current relationship. I would note that it would only be with considerable difficulty that a former couple, separated and without children, could be described as a “family”. If the concept does extend so far in the circumstances of this case, it must be, in my opinion, because of the existence of the minor child. On the other hand, it makes little sense for the Direction to be concerned with acts of violence by one former partner to another where there is a minor child, but not to be concerned with the acts of one former partner to another when there is no such child.

25. I am prepared, however, in this case to assume against Mr K that the intention of the Direction was to treat his violent assaults against his former partner, Ms N, as instances of family violence. I note that the Direction requires me to regard such violence very seriously. I do so.

26. I would also note that the crimes involved physical violence and instances of violence towards a woman. On multiple grounds, therefore, Mr K’s offending must be taken very seriously indeed under the Direction, and I do so.

27. Even though I need not have regard to the sentences imposed because the crimes involved a woman and also constituted acts of family violence (on the assumption I have made), the sentence imposed on the last occasion was lengthy and reflected the gravity of the offending.

28. I must have regard to the frequency of Mr K’s offending and whether there is any trend of increasing seriousness. I bear in mind that the relationship between Mr K and his former partner has been a violent one in the past and was subject to a domestic violence order. I regard Mr K’s offending as frequent now, and there is clearly a trend of increasing seriousness. Verbal abuse has escalated to physical violence in the form of physical blows, and the physical violence has more recently escalated to threats of murder accompanied by the use of a vehicle with which to strike the victim. I must also have regard to the cumulative effect of repeated offending and I do so in this case. In my opinion, it is likely that Ms N will bear the physical and psychological impacts of her mistreatment by Mr K for a long time.

29. I must consider the risk to the Australian community. I shall not set out paragraph 8.1.2(1) but I have had close regard to it. I am required under subparagraph (2) to have regard to, “cumulatively”, the nature of the harm to individuals or the community should Mr K engage in further criminal conduct and the likelihood of his so doing^[1].

30. So far as the first factor is concerned, I regard the nature of the harm to individuals as very serious indeed. The risk to Ms N is still present in my opinion. I note also that although the violence, on the evidence before me, has involved one former partner only, I do not believe I should proceed on the basis that the risk is confined to Ms N alone. There is a risk to other women with whom Mr K might be involved in the future and a risk to his other two former partners (with whom he has children). I regard the risk of harm to women as extremely serious because the violence has escalated on a number of occasions when there were ample opportunities for Mr K to draw back from further aggression. Mr K’s most recent attack upon Ms N, for example, was extremely concerning because, not satisfied with verbal abuse and having punched her in the head and having hit her once with the car, he sought actively to hit her again with the car all the while indicating he would kill her. It is hard to imagine a more serious threat to Ms N’s safety. I would also note that Mr K would also pose a threat to any person in the vicinity who might seek to intervene to assist Ms N (or any other victim).

31. There is also a risk to police officers because they have borne the brunt of Mr K’s anger and defiance in the past. Although trained to do so, police officers should not be required to deal with aggressive behaviour. I bear in mind that one assault involved the particularly unpleasant and intimidating act of spitting blood at the police officer involved.

32. In assessing the risk of a non-citizen committing further criminal acts or other serious conduct, I am directed to have regard to information and evidence concerning risk and evidence of rehabilitation.

33. I think it is clear that the risk in this case is at least moderate and certainly not low. In answer to a question from me, Mr Kyranis indicated that the respondent believed it was above low. I accept Mr K’s evidence that he is now better aware of the seriousness of his behaviour. He is certainly aware that a recurrence of his behaviour will lead him back to gaol and also, very significantly, to possible removal to a third country or extended confinement in immigration detention. That reality has been brought home to him unmistakably. Nevertheless, I take into account that Mr K has not undergone treatment either for his alcohol abuse, which was referred to in evidence before me, or for any continuing psychological effects of any trauma he suffered in Uganda as a child that may be contributing to his violent behaviour. These were referred to by Mr K as possible factors influencing his behaviour.

34. I accept that Mr K genuinely wishes to address these problems, but it remains the case that he has not yet done so through one-on-one sessions with competent professionals. Moreover, rehabilitation in Mr K’s case, as proves true for many offenders, can be expected to take some considerable time. I accept that Mr K has not consumed alcohol whilst in gaol or in detention; but, equally, I bear in mind that without long-term treatment leading to substantial psychological rehabilitation, there is a very real risk that Mr K will revert to alcohol in the future.

35. Reversion to alcohol will certainly exacerbate substantially the risk of his reoffending in my opinion. For Mr K alcohol is a very serious problem: it has been linked closely to his offending to date. It has clearly had a disinhibiting effect upon him that has led to very serious crimes of violence.

36. Despite Mr K’s genuine desire to turn his life around, and his interest in developing his nascent Christian faith, the fact remains that he is only effectively at the beginning of his rehabilitation process. At the present time, therefore, the risk of his reoffending in the same violent way that he has in the past remains at least moderate in my view.

37. I am directed by paragraph 8.2 to take into account the family violence committed by Mr K. I have already indicated my intention to conduct my review on the assumption that Mr K’s assaults upon his former partner amounted to instances of family violence. Subparagraph (1) notes the government’s serious concerns about non-citizens remaining in Australia when they have engaged in acts of family violence. Subparagraph (3) requires me to have regard to a number of matters in assessing the seriousness of the family violence engaged in by Mr K. There has been some frequency in his misconduct and there has clearly been a trend of increasing seriousness. I have regard to the cumulative effect of repeated acts of family violence directed towards Ms N, and I also have regard to the fact that there have been only limited attempts at rehabilitation since Mr K’s last known act of family violence.

38. I must have regard to the best interests of minor children in Australia: para 8.3. I accept that Mr K has played a role in the upbringing of the two older children, S and J, in the past. I also accept the evidence of Ms T and Ms N in support of Mr K and that he plays a role in the lives of each of these children^[2]. I have less confidence in the relationship with the third child, the youngest, A, born in late 2018. I do not think it can be said that there is any positive relationship between the two. Mr K has spent most of the time she has been alive in jail or detention and she is very young.

39. I am prepared to accord some weight to the interests of the three children but more particularly the two older children. I accept that each of the three children concerned has a mother and other family members involved in their care and upbringing, but normally in these matters it is appropriate to attach some significance to the desirability of a father being present as it is in the interests of a child to have the active involvement of both biological parents where possible. I am not aware of other male figures who have explicitly assumed the paternal role as such. In Mr K’s case, however, the weight I might normally attach to this consideration is reduced substantially by considerations of alcohol and violence. It must be borne in mind that Mr K’s children ought not to be exposed to violence directed towards their mother − and I do not exclude that as a risk − and they have an undoubted interest in any event in the continued well-being (physical and psychological) of their mother, whether they were to witness any violence or not. If there were further instances of violence against Ms N (or to the other former partners), the interests of the child concerned would be substantially and adversely affected.

40. Accordingly, I am prepared to give some weight to this consideration in Mr K’s favour, but quite limited weight only. I think Mr K’s relationship with his nephews and nieces is of no real moment as a factor and I can leave it to one side.

41. I must have regard to the expectations of the Australian community. I note the expectations are embedded, so to speak, in paragraph 8.4 itself, and I am not to assess the expectations for myself. I note in particular the community expectation that the Australian government can and should cancel visas where serious character concerns are raised through conduct involving, amongst other things, family violence and the commission of crimes against officials such as the police in the performance of their duties. These expectations apply whether or not the non-citizen poses a measurable risk of causing physical harm to the community. This primary consideration clearly weighs heavily against Mr K.

42. I must have regard to other relevant considerations. These are listed non-exhaustively in paragraph 9(1).

43. Mr K raised before me safety concerns regarding his removal to Uganda. I note that Mr K received an XB subclass 200 visa following, as I understand the evidence, his father’s receipt of a humanitarian refugee visa. The delegate proceeded on the basis that there is at least a possibility that Mr K (who shares the same surname as his father) could suffer discrimination and/or persecution on return to Uganda on account of his familial tie with his father and that his removal would potentially breach Australia’s non-refoulement obligations: see Ex R1, p 27, paras [81] - [82].

44. At the hearing before me, I did not have the benefit of an internal assessment in respect of this matter. It would appear that the delegate did not have the benefit of such an assessment either. Under paragraph 9.1(6), I note that the situation where non-refoulement issues may not be able to be addressed fully is adverted to, and it is noted expressly that in an appropriate case, the decision-maker may assume in the non-citizen’s favour that the claimed harm will occur and make a decision on that basis. I am satisfied by the evidence adduced by Mr K, which was not actively contradicted by the respondent, that there is a possibility of Mr K being at risk of persecution should he return to Uganda, and that this is an appropriate case in which to proceed in accordance with paragraph 9.1(6). I note the respondent accepts that “there is at least a possibility that the applicant could face a real risk of suffering harm in Uganda on the basis that the applicant’s father is likely to have a profile in Uganda”: see paragraph [49] of the respondent’s Statement of Facts, Issues and Contentions.

45. When I make the assumption in paragraph 9.1(6), I believe Australia’s non-refoulement obligations are engaged. I note that Mr K is eligible to apply for a protection visa in the assumed circumstance of his suffering harm were he to be removed to Uganda^[3].

46. There is a further question, however, that I believe I should address. Under s.36(1C)(b) of the Act, it is a criterion for the grant of a protection visa that the applicant in question not be a person whom the Minister considers on reasonable grounds to be “a danger to the Australian community” (where, as is the case here, the applicant has been convicted by a final judgment of “a particularly serious crime” as defined). It is clear that the offence of which Mr K was convicted most recently involving the assault upon Ms N was a particularly serious crime as defined.

47. On the evidence adduced before me, I think it is clear that Mr K would be “a danger to the Australian community” if he left detention. This conclusion is consistent with the respondent’s submissions to me concerning Mr K’s risk of reoffending: see paragraphs [34] - [35] of the respondent’s Statement of Facts, Issues and Contentions.

48. The question of whether a person poses a danger to the Australian community requires, in my opinion, an assessment of the risk of reoffending and of the type or types of harm in question. In some cases, even a high risk of some types of harm occurring will not result in a person being appropriately assessed as “a danger to the Australian community”. An example might be a kleptomaniac who confined himself or herself to the occasional theft of trivial items from a supermarket. On the other hand, even a low risk of certain types of harm can make a person a danger to the community. An extreme example might be a person who poses a very low risk of placing an explosive device in a public place. The risk may be low but the potential consequences so serious that the person might well be considered a danger to the Australian community.

49. Turning to Mr K’s situation, I note that the violence of which he has shown himself capable is very serious indeed, and the violence has occurred on a number of occasions now, even if it has been directed principally to one person. On the evidence before me, at the present time, he poses at least a moderate risk of re-engaging in violent conduct towards women given all his circumstances. I also bear in mind, although to a lesser degree, his assaults upon police officers. When I consider the types of violence in which he has engaged and the risk of its recurrence, which I have earlier discussed, I do not doubt that Mr K is, at the present time, a “danger to the Australian community”.

50. It follows in my opinion that, if I were to affirm the decision under review, and if Mr K were assessed to be a “danger to the Australian community” (as the evidence before me leads me to conclude), Mr K would not be eligible to receive a protection visa, although, on the assumption I have made he would be found to be owed non-refoulement obligations. This implies a continuation of his detention in immigration detention in the immediate term for reasons I shall explain.

51. Mr Kyranis submitted that I should not concern myself with the question posed by s.36(1C)(b). I do not accept that submission. I must engage − or at least I am not prevented in law from engaging − with the likely consequences of my decision and with what will ensue from the facts as I have found them to be in my review. Where the evidence before me shows that a person is presently a danger to the Australian community, I believe I should take that matter into account for the purposes of ascertaining what the practical consequences under the Act will be for that person should I affirm the decision under review.

52. Under the recent amendments to Division 8 of the Act, the duty under s 198 to remove an unlawful non-citizen from Australia has been modified substantially. Following the amendments, section 198 no longer “requires or authorises” an officer to remove an unlawful non-citizen to a country if a protection finding has been made, even if a protection visa has been refused: see s 197C(3). The legal result is that Mr K could not lawfully be refouled to Uganda on the assumption I have made that he is owed protection obligations.

53. I believe it is plain that Mr K would make an application for a protection visa in order to prevent his removal to Uganda were I to affirm the decision under review. From this it follows that Mr K would continue to be detained while that application was considered if I affirmed the decision under review. On the assumption paragraph 9.1(6) requires me to make, and given the finding I have made as to Mr K being a “danger to the Australian community”, a very real possibility is that Mr K would be found to be owed non-refoulement obligations but would be assessed as ineligible for a protection visa.

54. This would mean, effectively, that if I affirmed the decision under review, Mr K would continue to be detained in immigration detention until the impasse, so to speak, were broken either by a third country agreeing to receive him or by the Minister exercising a discretion to grant him a visa under, for example, section 195A^[4].

55. I have no evidence before me that suggests the respondent’s officers have any third country presently in mind. I must say that I query what country would be willing to receive a person with Mr K’s criminal history; but in any event I have no information that suggests a third country is likely to be found in a short period of time. Equally, I do not have any evidence before me that suggests the Minister is likely to exercise his section 195A power in Mr K’s favour, or exercise some other power under the Act, so as to end his confinement in immigration detention within a relatively short period of time. I have no basis for concluding that Mr K will cease to be a danger to the community in the foreseeable future, thereby removing the bar to his receipt of a protection visa under s.36(1C)(b).

56. I further conclude that I am not prevented in law from taking into account the period of indefinite detention that Mr K’s situation implies as a realistic possibility. Neither party referred me to authorities on this question. In the very short time available, I have read and considered the full Federal Court’s decision in WKMZ v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55, which clearly establishes (cf for example at [162]), that this Tribunal is obliged to consider the prospect of indefinite detention when it arises on the facts before it.

57. The proposition that a person has a vital and legitimate interest in his or her liberty hardly needs the citation of legal authority. As the plurality in WMKZ pointed out at [123], the continued deprivation of a person’s liberty by reason of the operation of the statutory scheme under the Act remains a matter a decision-maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law.

58. That, on the evidence before me, Mr K would remain in immigration detention for an “indefinite” period of time, in the sense in which that word was used by the plurality^[5], is of particular concern. I cannot proceed on the basis that I can be sure that if a third country option were not available, Mr K would receive, within a reasonable period of time, a visa from the Minister to end his detention in Australia. I do believe I should proceed on the basis that Mr K’s continued detention would at some point have to be broken by the grant of a visa as the quasi-permanent detention of a person would be entirely unreasonable, and I do not think I should assume that scenario would arise. But I do not think I can proceed on the basis that the period of time in which Mr K is likely to be detained in detention, if I affirm the decision under review, will be short. It could well be prolonged. There is no longer a statutory authority to remove a person who is owed protection obligations to his or her home country. The prior statutory obligation to remove an unlawful non-citizen no longer exists in respect of those who are found to be owed non-refoulement obligations in respect of the country to which they might otherwise be refouled.

60. Given what I have put above, I do not believe that Mr K may lawfully be removed to Uganda and hence the consideration of “extent of impediments if removed” does not apply.

61. I must consider the impact of my decision on victims. I have no evidence of the impact on the police officers of a decision to affirm or set aside the decision under review and so I regard that matter as neutral. Ms N, who is a victim, clearly desires that Mr K remain in Australia. Her statement in this regard dated 28 February 2022 formed part of Exhibit A1. I accept that she has some interest in securing ongoing support from Mr K that is far less likely to be provided if Mr K remains in detention, but I must also bear in mind that whether she appreciates it or not, she is at risk of serious violence from Mr K. That is an important matter. I regard this consideration under the Direction as neutral.

62. I am also to have regard to the consideration of “links to the Australian community”. Under this heading I accept that Mr K himself has an interest in the maintenance of one-on-one relations with his children. I accept also that he has spent his adult life in Australia although he began offending relatively soon after his arrival. The criterion of “links with the community” is one I would take into account if Mr K were to be removed from Australia to a third country. I find it difficult to take this consideration into account, however, on the assumption that Mr K will remain in immigration detention for some considerable period of time. I think the concerns that I have already raised about Mr K remaining in detention indefinitely subsume his interest in maintaining ties with his children and recommencing a proper life in Australia, and so I do not give this criterion independent weight.

63. The weighing of the considerations to which I have referred is clearly intended to be a discretionary exercise, although my discretion is informed, and controlled to a considerable extent, by the provisions in the Direction. It is also important to bear in mind that the Direction requires me to give more weight generally to primary considerations than to the so-called “other” considerations. Equally, however, I must consider the individual circumstances of the case at hand, and in an appropriate case even strong countervailing primary considerations will yield to other considerations.

64. In my opinion, the balancing exercise that I must undertake – and I emphasise I do not wish to oversimplify the exercise because the weighing process is a complicated matter – particularly involves the primary considerations of protection of the Australian community, family violence, and expectations of the Australian community on the one hand, versus, on the other hand, indefinite immigration detention and, less significantly, the interests of the minor children. I do not need to repeat here what I have already put about the very strong case for affirming the decision under review arising under the primary considerations I have mentioned, given the level and frequency of Mr K’s violent and antisocial behaviour towards his former partner. I add that I do not overlook the assaults upon the police and the other antisocial offending of which Mr K has been found guilty.

65. That said, it remains the case that the very real possibility of indefinite immigration detention is of substantial concern to me on the assumption, which the Direction anticipates decision-makers will make in an appropriate case, that Mr K is in fact owed non-refoulement obligations and that the claimed harm of persecution in Uganda will occur if he is returned there.

66. The assumption that I have made in this regard has led me to conclude that there is no authority under the Act to remove Mr K from Australia to Uganda. But because my findings of fact have also led me to believe that Mr K is presently, on the evidence before me, a danger to the Australian community, I must also conclude that there is presently a legal prohibition on the Minister granting him a protection visa given the terms of section 36(1C)(b). I would have been assisted in this case by a clear indication from the respondent of the Minister’s position in respect of the grant of a visa under section 195A or another provision of the Act. I do not have that information before me. I do not think I can assume, as I have said, that any impasse of continuing detention in this case would be broken in any short period of time by the securing of a third-country option or by the exercise of one or other of the respondent’s other statutory discretions.

67. Prolonged immigration detention represents a very serious intrusion upon personal liberty. That the detention could continue indefinitely, albeit not permanently, is a matter that in my opinion has proved decisive in my review although I have not excluded the other factors in Mr K’s favour. The liberty of the applicant in this case must be given very serious weight, indeed, in my opinion.

68. Notwithstanding, therefore, the very strong considerations in favour of affirming the decision under review, I have decided, on balance, to set it aside.

69. My formal decision will be to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked.

Date of hearing:	4 May 2022 & 5 May 2022
Advocate for the Applicant:	Mr Dominic McKenna, Inclusive Migration Australia
Advocate for the Respondent:	Mr Jake Kyranis, Sparke Helmore Lawyers

^[1] I must also have regard here to the duration of the visa in question, which is, in effect, a permanent one in this case. This raises the risk to the Australian community of Mr K’s continued presence in the community.

^[3] The fact that his humanitarian visa has been cancelled does not preclude him from applying for a protection visa.

^[4] Leaving to one side the speculative possibility of regime-change in Uganda.

Administrative Appeals Tribunal of Australia

CPDL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1082 (11 April 2022)