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MIGRATION - applicant's partner visa application refused under s 501(1) - conviction of drug trafficking offences - pending charges - applicant a citizen of China - Direction 90 - appropriate case to make assumption that applicant owed non-refoulement obligations - prospect of indefinite detention if decision under review affirmed - full Federal Court decision in WKMZ followed - decision under review set aside

Migration Act 1958 (Cth)

Controlled Substances Act 1984 (SA)

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

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

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

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

A Hao and M Yip "Extraterritoriality of Chinese Law: Myths, Realities and the Future" (2021) Vol 9 The Chinese Journal of Comparative Law pp 328-358

1. After I delivered my decision and oral reasons, I received a request for written reasons, which I now publish. These are the reasons I read out to the parties on 29 April 2022, with minor amendments.

2. This is an application by GRLL, to whom I shall refer as "Mr C", seeking a review of the decision of the respondent's delegate that his application for a partner visa, first lodged in 2010, should be refused under s.501(1) of the Migration Act, 1958 ("the Act"). Mr C's application was refused in the exercise of the delegate's discretion under this subsection.

3. The delegate decided, first, that Mr C did not pass the so-called "character test" under s.501, which was a precondition to the exercise of his or her discretion. This aspect of the delegate's decision is not controversial. The delegate then decided, in the exercise of his or her discretion, to refuse the visa under s.501(1). In weighing the exercise of the discretion, the delegate applied, as he or she was bound to do, Direction no 90 issued under s.499 of the Act[1].

4. Hearing the matter afresh on the evidence adduced before me, I must re-exercise the discretion under s.501(1). Like the delegate, I must apply Direction no. 90. In matters like this, the Tribunal conducts what is known as a de novo hearing on the merits. This means that I must find facts and draw inferences for myself based on the evidence adduced before me. I do not simply proceed to review the delegate's reasons for error as such. It follows that I may affirm the decision under review notwithstanding the presence of an error in the delegate's reasons if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate's reasons if that is the correct or preferable decision on the evidence before me[2]. At the hearing before me, Mr Simmons appeared for Mr C; Ms Laizans, for the respondent.

5. I have decided to set aside the decision under review and to substitute a decision that Mr C's application for a partner visa not be refused under s.501(1). I set out below the background facts and my reasons for this conclusion.

6. Mr C is a citizen of China, born in 1974. He is now 47 years of age. Mr C arrived in Australia on 10 December 2007 with a Temporary Work (Skilled) Visa that allowed him to pursue employment opportunities in Australia. Mr C married an Australian citizen, or permanent resident, in 2010. They had a child together, S, born on 23 July 2010. They are now divorced. Mr C's former wife sponsored his partner visa application when it was made in 2010. It has been put to me by Mr Simmons, and not contradicted by the respondent, that the divorce has not prevented Mr C continuing with the partner visa application, notwithstanding the divorce, as the couple had had a child together. I proceed on that basis. Mr C is completely estranged from his former wife and has no contact with S.

7. Mr C has formed a relationship with a new partner, Ms L, who gave evidence before me. Ms L has a child from a prior relationship, E. In addition, Ms L is expecting a child (of whom Mr C is the father). Her baby was scheduled to be delivered surgically on 3 May 2022, a few days after I delivered my oral reasons in this matter. The surgery will necessitate a post-operative recovery process.

8. On 19 December 2012, not long after his arrival in Australia, Mr C was convicted of serious offences reflecting his involvement in the importation[3] of significant quantities of methamphetamine and pseudoephedrine, a precursor used to make methamphetamine. I had before me in evidence the District Court of SA's sentencing remarks, which I have read carefully: see Exhibit R1 at pp 35_ff_. Mr C was sentenced to gaol for a considerable period of time, namely, six years and eight months with a non-parole period of four years. As he was first taken into custody on 11 May 2011, Mr C became eligible for parole in May 2015. Since being released on parole Mr C has been convicted of a traffic offence in 2018 but in the circumstances the conviction has had no material influence on my decision. I was also informed at the hearing that Mr C will plead guilty to the charge of driving a motor vehicle after having consumed methamphetamine. Whilst the possession and use of methamphetamine for personal purposes is reprehensible, and whilst driving with this drug in one's blood is also reprehensible, this is a matter that does not in my opinion tip the scales, so to speak, one way or the other in my decision-making, and it is not necessary therefore that I refer to it again in these reasons.

9. At the present time, Mr C and Ms L both face a serious charge in the District Court of SA. This charge concerns a count of trafficking in a controlled drug (namely, methamphetamine) contrary to s.32 (3) of the Controlled Substances Act 1984 (SA). Their application to have the charges dismissed because there was "no case to answer" was rejected by the District Court earlier this year. As matters presently stand, the charge is not admitted by either Mr C or Ms L and, as I was informed by Mr Simmons, the proceedings will be listed shortly for trial at some time in the future. The proper approach of the Tribunal to a situation where the applicant before it faces a serious criminal charge arises for consideration in this case.

10. I turn now to consider the application of Direction no 90. In Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119, I set out the background to the Direction at paragraphs [32]ff. I repeat what I there wrote:

"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."

11. 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 the Government's commitment 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 noncitizens in the expectation that they will be law-abiding and will not cause or threaten harm to the Australian community. I keep this consideration in mind.

12. Paragraph 8.1(2) requires me to give consideration to the nature and seriousness of Mr C's conduct to date and, secondly, to the risks to the Australian community should he commit further offences or engage in other serious conduct.

13. 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). Subparagraphs (a) and (b) specify particular offences that are considered either very serious or serious as the case may be; but as is made clear by the drafting, these offences do not exhaust or limit the categories of "very serious" or "serious" offences.

14. In my opinion, it is appropriate in this case to regard the conduct of which Mr C has been convicted as very serious. The widespread problem of drug dependence and misuse in Australia is of very significant societal concern. Addiction to methamphetamine is, as is widely appreciated, a very serious societal problem in its own right. It is a particularly pernicious drug and ending an addiction to methamphetamine is extremely difficult.

15. It is also the case that large-scale trafficking requires the cooperation of a number of people from production through to distribution. People who participate in trafficking contribute to the serious and strongly antisocial problem of organised criminal syndicates. This was true in Mr C's case.

16. I regard the misuse of methamphetamine as a fundamental challenge in Australian society. Mr C has been willing to involve himself in the trafficking of a significant quantity of the drug and of a precursor used to produce it. The sentencing Court referred to Mr C having had a very significant role in the offending[4].

17. It is clear from the sentencing remarks and from the lengthy term of imprisonment that was imposed that the offending was treated very seriously by the Court. I proceed on the basis that even if, as submitted by Mr C, he became involved in the trafficking to earn money with which to pay off a debt, that would not offer any mitigating circumstance. Many people face financial difficulties, including severe ones.

18. Subparagraph (c) requires me to have regard to the sentence imposed, and I do so noting that it was a lengthy one. The offending warranted an aggregate sentence of eight years and six months, which was reduced to six years and eight months given the guilty plea. A non-parole period of four years was fixed. I am required to have regard to the frequency of Mr C's offending and whether there is any trend of increasing seriousness. The three charges to which Mr C pleaded guilty in the District Court related to seven separate acts of importation and one of attempted importation. That is a large number. The total value of the drugs and the precursor was described by the sentencing Court as "significant"[5]. Approximately, 470g of methamphetamine was involved[6]. I also think there is an identifiable trend of increasing seriousness arising from the fact that the last offence was committed by Mr C when he was on bail. That is a particularly concerning aspect of this matter as the sentencing Court recognised[7].

19. I am to have regard under paragraph (e) to the cumulative effect of repeated offending and I do so.

20. In assessing risks to the Australian community I bear in mind the principles that are set out at paragraph 8.1.2(1). I accept in particular that trafficking methamphetamine is a very serious matter indeed.

21. I am directed by paragraph 8.1.2 (2) to have regard to "cumulatively" the nature of the harm to the Australian community on the assumption that the noncitizen engages in further criminal conduct and the likelihood of the noncitizen engaging in further criminal or other serious conduct. I note that I must also address paragraph (c), which concerns whether the risk of harm may be affected by the duration and purpose of the noncitizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

22. I regard the nature of harm to individuals or the Australian community should Mr C engage in further trafficking in methamphetamine as very serious indeed. Methamphetamine is, as is well known, a highly addictive drug that has the potential to produce extreme harm to individuals and to the Australian community more widely. I take this threat very seriously indeed.

23. I must take into account the likelihood of Mr C engaging in further criminal or other serious conduct. This gives rise to the question of whether I should have regard to the pending charges in the District Court. These have yet to be dealt with, as I have said. All I have before me in one sense is the bare fact of untried charges. I accept that Mr C's application that the charge against him be dismissed because there was "no case to answer" has been rejected by the District Court. But that rejection does not amount, of course, to a finding of probable guilt, let alone guilt beyond reasonable doubt: the trial is yet to occur and Mr C and Ms L maintain their innocence. The application before me was not conducted on a basis that permitted me to form a view (even assuming it would be appropriate for me to do so) as to whether the conduct alleged against Mr C and Ms L did, or did not, occur. In the absence of a positive finding by a court, I do not believe I am in any position to form a conclusion that the alleged conduct did in fact occur. Nor should I make any assumptions in that regard. In the circumstances, I believe I should leave out of account the pending charges when assessing risk as a primary consideration.

24. I accept that if, indeed, Mr C was in possession of methamphetamine as alleged in the pending charges, my assessment of risk to the community will be defective. Nevertheless, I must act on the evidence before me, and I do not have a sufficient basis in the evidence before me to draw a conclusion that Mr C was more likely than not in possession of methamphetamine as alleged.

25. In this regard, I would also note that I have not taken account of the various charges against Mr C that have been withdrawn. It seems to me that I cannot draw any adverse inference from these charges having been laid as they were not proceeded with.

26. I accept that, leaving the pending charges to one side, Mr C has not, on the evidence before me, engaged in trafficking since his release from gaol in 2015. I take that into account and the period of time from 2015 to the present day has been a relatively long one. Having heard him give evidence, however, I do not conclude that Mr C has achieved any real insight into the harm his misconduct can cause to the community. I believe on the evidence before me that he lacks that insight quite fundamentally. I do not accept that he feels any genuine remorse, in the sense of moral guilt or shame, for what he has done. I was not persuaded by his evidence in this regard.

27. I do accept, however, that his present predicament (involving his detention in an immigration facility) has impressed upon him the recklessness of his choices and their wide-ranging repercussions upon his family. This will serve as some deterrent to him. I did not have before me a recent psychological report on the recidivist risk Mr C is likely to pose[8]. All in all, I think I should proceed on the basis that Mr C poses at least a moderate risk of reoffending.

28. I accept that under subparagraph (c) the risk of harm will increase given the intention of Mr C to stay in Australia permanently.

29. I must have regard to the best interests of minor children in Australia affected by my decision. The evidence before me does not allow me to conclude that there is any meaningful prospect of Mr C enjoying a positive relationship in the future with his own biological child, S. Apparently S's mother (Mr C's ex-wife) has taken the view that S ought not to have any contact with Mr C. That situation will only be changed, if at all, by court order. No court application has yet been made by Mr C, and I have, in the circumstances of this case, very real difficulty in attaching any weight to the prospect of Mr C playing a meaningful role in S's life in the foreseeable future. Accordingly, I do not at the present time see that S's best interests need to be taken into account as a reason for setting aside the decision under review.

30. I do accept the evidence that was given by Ms L that Mr C occupies in effect the position of a father to her biological child E. I accept that E's biological father plays a limited role in E's life. I accept that E's best interests would be served by Mr C remaining in Australia. I take that matter into account, although I acknowledge that Ms L already performs a parental role in respect of E.

31. As I indicated earlier, Ms L will shortly undergo surgery to have her baby delivered. Strictly speaking, I cannot take into account the best interests of that unborn child as a primary consideration. Nevertheless, the interests of that child do need to be taken into account, even if not as a primary consideration. I note that if Ms L had already given birth to her baby, I would be required to assess and weigh the newborn's best interests as a primary consideration. It seems very strange to accord any substantially lesser weight to the interests of an unborn child who is to be delivered several days only after my decision. I do not think I should draw any substantial distinction in weighting in the circumstances of this case even though the interests are, strictly speaking, non-primary.

32. It is convenient to deal with the interests of the soon-to-be delivered baby at this point in my reasons. I believe that the interests of the baby ought to be given some weight although not technically as a primary consideration. I accept, however, that the relationship is non-existent at the present time. What can be said fairly is that permitting Mr C to remain in Australia would give the newborn, over time, the benefit of the attention, love, and financial support of a father provided Mr C does not revert to criminal behaviour.

33. I must have regard also to the expectations of the Australian community. I note without setting out what appears in subparagraph (1) that the Australian community "as a norm" does not expect the government to allow a noncitizen who has committed a serious criminal offence to remain in Australia. I would also note that paragraph 8.4 (2) requires me to apply a principle that the Australian community would expect the Australian government to refuse entry to Mr C on account of character concerns arising from his conduct. I would regard Mr C's participation in the importation of methamphetamine and pseudoephedrine as a crime of serious international concern falling within subparagraph (e). The illicit production in one country of substances that are being trafficked in connection with drug offences in another is a well-known difficulty throughout the Western world and of serious international concern. I note that the expectations of the Australian community apply regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. I note further that the Australian community expectations consideration is embedded within paragraph 8.4 itself, and it is not necessary for me to make any independent assessment of the community's expectations in this particular case.

34. I turn now to consider the "other" considerations. I note that there is a non-exhaustive list of four such considerations in paragraph 9. I will come to international non-refoulement obligations in due course. I do not believe I should take into account the extent of any impediments Mr C might face were he to be removed to China because, for reasons I shall explain, I believe I should proceed on the basis that Mr C will not be removed to China.

35. I do not have before me any indication from the respondent of any third country to which Mr C might be removed, and I am unable to assess the extent of impediments unless and until I know what that country might be. Moreover, I query whether the Government will secure in any reasonable timeframe a third country option. No evidence in this regard was provided and I must say I regard it as somewhat counterintuitive to suppose that any third country is likely to agree to take Mr C when Australia wishes to exclude him on account of his serious drug-trafficking offences.

36. I must have regard to Mr C's links to the Australian community. I note here the interests of the unborn child, which I have earlier discussed, but which are strictly speaking not interests that arise as a primary consideration. I consider also Mr C's own interests in maintaining what is a serious relationship with Ms L and developing a relationship with his newborn child. I note also Ms L's interests in maintaining her relationship with Mr C from personal, familial, and financial perspectives. In the immediate term, I would note that Ms L has no family here and few contacts. On the evidence before me, she will immediately face recovery from her forthcoming surgery alone and also the responsibility of caring for a newborn infant and E. I accept that in the short term this will impose a considerable burden upon her.

37. Before I come to non-refoulement obligations, I would note that I believe I should also take into account the fact that Mr C is facing pending charges. As I indicated earlier, I did not take this matter into account as part of the risk assessment required under para 8.1.2(2) because I would have had to form a view that the conduct the subject of the charges has more probably than not occurred. As I have explained, there is no evidential basis for me to proceed to make such a finding in this case. Although I do not proceed on the basis that Mr C is more likely than not to have committed the conduct the subject of the charges, I believe that the fact that Mr C has been charged by the Director of Public Prosecutions is a matter to which some weight should be given against him. I say this in circumstances where an application by Mr C to have the charges dismissed on the basis of there being no case to answer has been rejected by the District Court, and the matter is to proceed to trial.

38. I have before me the fact of a ruling from the District Court that there is a case to answer in respect of the serious charges laid by the DPP. That is a judicial determination. This does not mean of course, as I have already pointed out, that Mr C has been found to have done what it is alleged he has done nor is it a determination of probable guilt; but the evidence to be led by the prosecution has, in effect, been adjudicated to be legally sufficient to lead to a conviction (on the assumption that all evidence necessary to sustain a conviction will be admitted by the Court at trial and will be accepted as true by the trier of fact)[9]. Moreover, the charges have been laid, as I have said, by the Director of Public Prosecutions, an independent statutory officer. It is a serious thing for the Director's office to lay charges, and so I have at least its view that charges were appropriately laid in this case. In my opinion, therefore, it is appropriate for me to take into account, when weighing my discretion, the fact that there are pending charges against Mr C: this consideration is one of the "other" considerations I am required to weigh.

39. I do not have information before me concerning the impact on any particular person or the Australian community more generally of any decision I might make to affirm or set aside the decision under review. I accept that a decision to set aside the decision under review would expose the Australian community to a further risk (as estimated above) of anti-social drug trafficking by Mr C whereas a decision to affirm the decision under review would remove the risk of Mr C offending in the future.

40. I now come to consider non-refoulement obligations. This has proved a most difficult aspect of this case. There is no doubt that the drug-trafficking charges of which Mr C was convicted were most serious. I am satisfied on the evidence before me that the charges and convictions were reported in the Australian media[10].

41. Mr Simmons submitted to me that Mr C is owed non-refoulement obligations. He put the submission on the basis that Mr C was at risk of being re-prosecuted for the earlier offences in China and of being treated extremely harshly (including possibly being sentenced to death). He maintained that this prospect was real and on this basis Mr C could not be refouled to China given the recent amendments to section 197C of the Act. The result, he said, could be prolonged immigration detention. I was referred to several Tribunal decisions in this regard. They are set out and discussed in the Mr Simmons' Reply at paragraph [4]. I shall not set them out, but I have considered them.

42. Ms Laizans' submission (as reflected in paragraphs [38] to [39] of the respondent's Statement of Facts, Issues and Contentions) was that the DFAT Country Information Report on China supports a finding that re-prosecution "is possible but unlikely unless the alleged crime relates to a sensitive issue such as a political issue or has attracted significant (social) media attention"[11]. Her submission on behalf of the respondent was that I should not accept that protection obligations arise in Mr C's case. Several points may be made here. First, I note that the DFAT Report extract quoted by the respondent records that re-prosecution is "possible but unlikely". Whether that risk assessment suffices to disengage Australia's potential non-refoulement obligations under the Act is not clear since the possibility of re-prosecution is acknowledged[12].

43. Moreover, the exception refers to "sensitive issues and crimes attracting significant (social) media attention". I do not know to what extent information appearing in the Australian media concerning the drug-trafficking activities of Chinese nationals in Australia is obtained and retained by the Chinese government. Mr C's convictions were certainly reported in the media here, as I have noted. I do know, of course, that the Chinese government is autocratic and repressive. It has taken an extremely serious view of drug trafficking in the past and imposes severe penalties including the death penalty in some cases. Moreover, I would not assume that China's judiciary operates with the same level of integrity, independence, and fairness as Australia's. I note further that Mr C is a Chinese national, and is not an Australian citizen, that the offences in question involved a drug ring operating out of China, and that Mr C was found to have organised a payment by telegraphic transfer to a person in China in connection with the importation[13]. The evidence before me suggests that the Chinese Criminal Code specifically applies to any citizen of China who commits a crime outside the territory of China with limited exceptions only[14]. In these circumstances, on the evidence before me, I cannot conclude that Mr C would face no risk of re-prosecution and serious penal consequences in relation to the drug offences. I cannot conclude that there is no risk of there being an infringement of Australia's non-refoulement obligations if Mr C were returned to China.

44. I am not, however, in a position at the end of my review to make a positive finding of harm to Mr C or to evaluate the risk. Direction 90 addresses this situation in paragraph 9.1(6) as follows:-

"It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether a claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis."

45. As is made clear in this paragraph, a decision-maker is not required in every case to make a positive finding whether the claimed harm will occur but "in an appropriate case may assume in the non-citizen's favour" that the claimed harm will occur and make a decision on that basis. In my opinion, this is an appropriate case in which to make this assumption. Although I am not in a position to make a final positive finding whether the claimed risk of harm is likely to arise, I believe an appropriate evidentiary foundation has been laid in the information made available to me as part of this review that permits me to assume that the claimed harm might well occur. I believe I should proceed in this case on an assumed basis that the claimed harm might well occur − I note the paragraph, in fact, uses the more definite expression "will occur" − and that Mr C is, therefore, owed non-refoulement obligations given this assumption.

46. Having regard to the recent amendments to section 197C of the Act, I note that the assumption I have just made about the existence of non-refoulement obligations leads to a conclusion that if I affirm the decision under review, Mr C will continue to be confined in immigration detention. Mr C would most likely make an application for a protection visa to avoid removal to China if I affirmed the decision under review.

47. If I affirm the decision under review, that period of detention could only come to an end in one of three ways so far as I can see. First, Mr C may make a successful application for a protection visa. On the assumption I have made, Mr C would meet the protection criteria for the grant of such a visa under the Act, and, as I have said, he would most likely make such an application to avoid removal to China.

48. The assessment of his application may take some time, however. Furthermore, the discretion in s.501 might be invoked to refuse the grant of such a visa to him. One legal question that arises is whether I ought to have regard to the fact that s.501 might be invoked to refuse a visa to him since it has already been invoked to prevent the grant to him of a partner visa.

49. This is an important question. I accept that I should avoid the purely speculative exercise of predicting whether the discretion under s.501 to refuse a protection visa might be invoked. But in the recent full Federal Court decision of WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCFCA 55; [2021] FCAFC 55; 285 FCR 463, certain observations were made by the plurality that bear directly on this matter. The Court was there concerned with s.197C as it stood prior to its recent amendment and where there was still an unqualified obligation to remove an unlawful non-citizen as soon as practicable and irrespective of any non-refoulement obligations. This provision had been held not to exclude an allowance of time for a person to apply for a protection visa. The Court made the following remarks at paragraph [124]:

"It has been accepted that s 197C also does not preclude the executive ensuring that sufficient time is given to an individual who is the subject of an unfavourable non-revocation decision, and who is entitled to make a protection visa application, to do so. However, as Rares J's reasons in FRH18 made clear, it is difficult to see how any delegate acting rationally and reasonably, or the Minister herself or himself acting rationally and reasonably, could decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful. To grant or restore a visa in such circumstances would be to return a person to free and lawful residence in the Australian community, an outcome which under a different provision has been determined to pose an "unacceptable" risk to that same community, and in situations such as AQM18 and FRH18, where it has been determined to be against the "national interest". Nevertheless, the scheme permits a visa application in some circumstances, and it has been accepted that the duties in s 198, read with s 197C, should be read as accommodating time for such an application, fruitless as it might appear to be."

50. Of particular relevance is the observation that it would be "difficult to see how any delegate or the Minister herself or himself, acting rationally and reasonably" could decide to grant a visa to a person who has had a different visa cancelled and has applied for the cancellation to be revoked but been unsuccessful.

51. Exactly the same observation might be made in respect of a person, like Mr C, who applies for a protection visa but who has had a partner visa application refused (rather than cancelled) on character grounds under s.501 and been unsuccessful in his review in this Tribunal. I also bear in mind that the delegate found in this case that there was a significant risk that Mr C would reoffend[15].

52. If I am not disentitled in law from taking into account the apparent likelihood of a protection visa being refused in this case under s.501, it follows that I may take into account that there is at least a substantial possibility that Mr C's immigration detention will not be brought to an end by the grant of a protection visa.

53. As the plurality's observations make clear, I do not think I am merely speculating about whether s.501 might be used in the future to deny a protection visa to Mr C. I am, rather, proceeding on the basis that "it is difficult to see how any delegate acting rationally and reasonably" could grant a protection visa to Mr C given the character concerns leading to the refusal of his partner visa application. I believe I should follow the observations of the plurality in this regard and take into account the very real prospect of a protection visa being refused when I form a view as to how and when Mr C's immigration detention might end.

54. The second possibility is that Mr C's continued detention might come to an end if a third country is found to take him so no non-refoulement obligation would be contravened on his removal. I do not have any evidence before me concerning the likelihood of any such country being found. As I have already indicated, it seems counterintuitive to suppose that any such country would take Mr C, a convicted drug trafficker, and so I believe I should assume that the process of successfully exploring that option is not likely to be a short one.

55. The third way Mr C's detention might end if I affirm the decision under review involves Mr C being granted another type of visa by the Minister (under s.195A, for example). The power under s.195A involves a personal and non-compellable discretion. I was not provided with any information as to the likelihood of the Minister granting Mr C a visa, and I do not have information before me indicating an indicative final date by which the Minister would grant Mr C a visa if the process of exploring a third country solution had not been fruitful by that stage.

56. All in all, therefore, I proceed on the basis that there is a very real possibility of Mr C continuing to spend time in detention indefinitely while these processes are worked through if I affirm the decision under review. In my opinion, this is a matter which weighs substantially in Mr C's favour.

57. I turn now to weighing the discretionary considerations. Weighing them has proved difficult.

58. I would return first to the question of indefinite detention as it has been one that is of particular concern in this case. The plurality in WKMZ discussed this factor 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 being litigated, s.197C required the removal from Australia of unlawful noncitizens as soon as practicable irrespective of Australia's non-refoulement obligations: subss.(1) and (2) stood without qualification. Following the amendments last year, the situation is a fortiori in respect of the significance of indefinite detention as there is no longer any statutory authority, let alone duty, to remove a non-citizen to a country in relation to which a protection finding has been made in his or her favour.

59. I have read the plurality's reasons carefully. In addition to the remarks I have earlier quoted, I note those at paragraph [132]. It is there noted 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 detainee 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 C, 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 C's favour will be made if a third country option has not been successfully arranged by then.

60. At paragraph [133] the plurality further noted that administrative steps and enquiries may take a very long time, and not have any clear outcome, despite the presence of the then unamended statutory duty to effect removal as soon as practicable and irrespective of any non-refoulement obligations. I note that at paragraph [136] the plurality noted − importantly in my view − 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.

61. 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. That said, 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 indicates a willingness to take Mr C. That would be to impute the Minister an intention to act in a highly injurious way towards Mr C by maintaining his deprivation of liberty on a fully open-ended basis, and I decline to impute that intention to the Minister.

62. But as the plurality in the Federal Court made clear at paragraph [133], administrative processes to explore the options there might be for the removal of Mr C to a third country may be lengthy. There is, furthermore, no indication before me that the Minister is open to granting Mr C 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 it were indeed a likely scenario. It has not been put to me.

63. The plurality in WKMZ, at paragraph [123], referred to liberty as one of the most basic human rights and fundamental freedoms known to the common law and that the continued deprivation of a person's liberty is a matter visa decision-makers should take into account on that basis.

64. I must weigh all the considerations as part of my review. I have had particular regard to the very serious offending of which Mr C has been found guilty and the very strong community expectation that Mr C should not remain in Australia. I come back to these considerations as weighing very strongly in favour of affirming the decision under review. I have also given weight to the fact of the pending charges, once again involving drugs (methamphetamine), in the manner I have indicated. I note further that primary considerations should generally carry more weight than the "other" considerations under the Direction. But the deprivation of personal liberty on an "indefinite" basis− using this expression in the same way it was used by the plurality in WKMZ − is a very serious matter indeed. Indefinite deprivation of liberty is a very real possibility if I affirm the decision under review (on the assumption that I have made that Mr C would apply for a protection visa and would be found to be owed non-refoulement obligations and given also that there would be no statutory authority for his compulsory removal to China on this assumption). That Mr C could spend an indefinite period of time in detention, albeit not quasi-permanent for the reasons I have explained, is a most serious matter, as I believe the plurality in WKMZ made clear in their reasons.

65. The plurality did not say, of course, that indefinite detention was not a permissible outcome of a review; but it did make clear the need for an interference with liberty to be seriously assessed by decision-makers and the Tribunal on review. Obviously, the other factors favouring the setting aside of the decision under review to which I have referred add strength to Mr C's application.

66. In my opinion, weighing all matters, the correct or preferable decision in this case, on balance, is to find that Mr C's visa application should not be refused under s.501.

67. My formal decision will be, therefore, to set aside the decision under review and to substitute a decision that the applicant's visa application not be refused under s.501.

13 April 2022, 14 April 2022, and 20 April 2022

[1] Direction no. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

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

[3] Including one charge of attempted importation.

[8] The report in Ex R1 at p. 69 dates from 2012.

[9] This is the legal assumption the Court was required to make when deciding whether there was a case to answer.

[11] See paragraph [5.30] of the DFAT Report at Ex R2, pp 30_ff._

[12] The test under s 36(2)(aa) involves the Minister having "substantial grounds for believing" that there is "a real risk that the non-citizen will suffer significant harm".

[13] See sentencing remarks at Ex R1, p. 35.

[14] See Article 7 of the Chinese Criminal Code quoted and discussed in "Extraterritoriality of Chinese Law: Myths, Realities and the Future" by A Hao and M Yip (2021) Vol 9 The Chinese Journal of Comparative Law pp 328-358.