BNFN and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1417
•25 June 2025
BNFN and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1417 (25 June 2025)
Applicant/s: BNFN
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3088
Tribunal:Deputy President Thompson SC
Place:Perth
Date:25 June 2025
Date of written reasons: 15 August 2025
Decision:The decision of a delegate of the Minister dated 2 April 2025 not to revoke the cancellation of the Applicant’s Refugee (Class XB) (subclass 200) visa is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked under section 501CA(4) of the Migration Act 1958 (Cth).
Statement made on 15 August 2025 at 8:32am
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – expectations of the Australian community – extent of impediments if removed – Applicant is a 26-year-old year old citizen of Somalia – extent of impediments if returned to Somalia – Non-Revocation Decision is set aside
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth) – section 56(1)
Migration Act 1958 (Cth) – sections 15, 189, 196, 197C, 198, 499, 499(1), 499(2A), 501(3), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501E, 501F, 503
Migration Regulations 1994 (Cth) – Schedule 5 cl 5001
CASES
AJL20 v Commonwealth of Australia (2020) FCR 549; [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection; (2019) 273 FCR 12; [2019] FCAFC 202
Khalil and Minister for Home Affairs (2019) 271 FCR 326; (2019) 166 ALD 1; (2019) 372 ALR 424; [2019] FCAFC 151
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47
Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2024] FCA 1273
Stoneley v Minister for Immigration & Multicultural Affairs [2025] FCA 143
SECONDARY MATERIALS
Australian Government, Department of Foreign Affairs and Trade, Somalia (Latest update) ˂ COI Report – Somalia: Security Situation, May 2025, ˂ for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024) – paras 5.2, 5.2(2), 5.2(3), 5.2(4), 7, 7(2), 8, 8.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.3, 8.5, 8.5(1), 8.5(2), 8.5(2)(c), 8.5(4), 9, 9.1, 9.2, 9.2(1), 9.2(1)(a), 9.2(1)(b), 9.2(1)(c)
Statement of Reasons
The decision in this matter was made and provided to the parties on 25 June 2025 with a note that written reasons would be provided within a reasonable time. These are those written reasons.[1]
THE APPLICATION
[1] Khalil and Minister for Home Affairs (2019) 271 FCR 326; (2019) 166 ALD 1; (2019) 372 ALR 424; [2019] FCAFC 151 at [41].
The Applicant has sought review of a decision of a delegate of the Respondent (Minister) dated 2 April 2025, not to revoke the cancellation of his Refugee (Class XB) (subclass 200) visa under section 501CA(4) of the Migration Act 1958 (Act).[2]
[2] Exhibit R1, G2, 17.
BACKGROUND
The Applicant was born in 1999 in Somalia[3] and remains a citizen of Somalia. From about 10 days of age until about age 15 he was living, essentially as an undocumented refugee, in Yemen with his mother. He then spent the next three years of his life in Indonesia, generally under the care of his Aunt, again as a refugee.[4] He arrived in Australia in May 2017 along with his Aunt. He has not left Australia since arriving and has not seen his mother or siblings since he fled Yemen.[5]
[3] Exhibit R1, G8, 52; G10, 63
[4] Exhibit A1, 1; Exhibit R1, G8.
[5] Exhibit R1, G14.
Shortly after arriving in Australia, the Applicant’s Aunt died. The impact of this on the Applicant was catastrophic as he found himself homeless and without support in a country where he had been living for only a matter of months. In order to survive, the Applicant committed a range of minor criminal offences, including trespassing, shoplifting and stealing food. He also became addicted to heroin.[6] He has been diagnosed with schizophrenia and PTSD.[7]
[6] Exhibit A1, 1 – 2.
[7] Exhibit A2; Exhibit R1, G10, 74.
On 30 August 2022, the Applicant was convicted in the Bankstown Local Court of common assault, on his plea of guilty, for which he was sentenced to 14 months’ imprisonment.[8]
[8] Exhibit R1, G3, 37.
On 15 November 2024, the Minister cancelled the Applicant’s visa under section 501(3A) of the Act (Cancellation Decision), [9] on the basis that the Applicant had a substantial criminal record within the meaning of section 501(6)(a), and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory. The Applicant was notified of the Cancellation Decision by letter of the same date for delivery by hand at Parklea Correctional Centre.
[9] Exhibit R1, G12, 77.
On 17 November 2024, the Applicant made representations to the Minister requesting revocation of the Cancellation Decision under section 501CA of the Act.[10]
[10] Exhibit R1, G7; G8.
On 2 April 2025, pursuant to section 501CA(4) of the Act, a delegate of the Minister decided not to revoke the Cancellation Decision (Non-Revocation Decision).[11] The Non-Revocation Decision was hand-delivered to the Applicant on 2 April 2025. The Applicant lodged his application for review by this Tribunal on 9 April 2025.[12]
[11] Exhibit R1, G2.
[12] Exhibit R1, G1.
THE HEARING AND THE EVIDENCE
The hearing took place via video link on 10 and 11 June 2025. Both parties were legally represented, and the Applicant was assisted by an interpreter throughout the proceedings. He also gave some of his evidence in English, without the use of an interpreter, during which time he impressed me as articulate, intelligent, and genuine in his desire to improve himself and his life.
The following documents were marked as exhibits:
(a)the Applicant’s statement, filed 12 May 2025 (Exhibit A1);
(b)a psychological report of Mr Billel Rababi, dated 14 May 2025 (Exhibit A2);
(c)the section 501G Documents, labelled G1 – G18, comprising 112 pages (Exhibit R1); and
(d)the Tender Bundle, comprising 668 pages (Exhibit R2).
The Applicant and Mr Rababi gave oral evidence and were cross-examined. The Applicant gave evidence by video link and Mr Rababi gave evidence by telephone.
I was also assisted by:
(a)the Applicant’s Statement of Facts Issues and Contentions, dated 11 May 2025 (Applicant’s SFIC);
(b)the Minister’s Statement of Facts, Issues and Contentions, dated 29 May 2025 (Respondent’s SFIC);
(c)a table of convictions prepared by the Minister, reproduced as ‘Annexure A’ of this decision; and
(d)a table of the calculation of the total time that the Applicant had spent in custody or immigration detention, prepared by the Minister and reproduced as ‘Annexure B’ of this decision.[13]
LEGISLATIVE FRAMEWORK
[13] The data in the annexure presents a misleading picture of the Applicant’s offending as it includes a number of instances where the Applicant had been detained on remand, but was later acquitted, or charges were dropped. It does not assist the Tribunal in undertaking its review to have misleading information provided by the Minister: see section 56(1) of the ART Act.
Migration Act
Under section 501(3) of the Act, the Minister may cancel a person’s visa if he or she is satisfied that the person does not pass the ‘character test’.
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record, which in turn is set out on section 501(7)(c) to mean they have been sentenced to a term of imprisonment of 12 months or more.
Once a person’s visa is cancelled under section 501(3A) of the Act, the Minister must give them written notice inviting them to make representations about revocation of the original decision. If representations are made, the Minister may revoke the decision to cancel the visa if satisfied that: [14]
(a)the person passes the character test; or
(b)there is another reason why the original decision should be revoked.
[14] Section 501CA(4)(b) of the Act.
That is, to make a decision under section 501CA(4) a decision-maker must first decide whether the person passes the character test under section 501CA(4)(b)(i) and, only if satisfied that the person does not pass that test, decide whether, under section 501CA(4)(b)(ii), there is another reason why the original decision should be revoked.[15]
[15] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Section 499(2A) of the Act mandates that the Tribunal must comply with written directions given by the Minister regarding its functions or the exercise of those powers given to it under section 499(1) of the Act.
Direction no. 110
On 7 June 2024, the Minister issued Direction no. 110 under section 499 of the Act (Direction 110). The direction applies specifically to decisions by the Tribunal on an application for revocation of a mandatory cancellation of a visa under section 501CA.
Paragraph 5.2 of Direction 110 sets out mandatory principles which ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’.
These principles include the following:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
Paragraph 8 of Direction 110 sets out the primary considerations which must be taken into account in making a decision under section 501CA(4). These are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether there is family violence engaged by the Applicant;
(c)the strength, nature and duration of the Applicant’s ties to Australia;
(d)the best interests of minor children in Australia affected by the decision; and
(e)the expectations of the Australian community.
Paragraph 9 of Direction 110 sets out the other considerations which the Tribunal must take into account, insofar as they are relevant to an application. These are:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
Paragraph 7 of Direction 110 provides:
(a)information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations;
(b)the protection of the Australian community is generally to be given greater weight than other primary considerations, and primary considerations should generally be given greater weight than the other considerations; and
(c)one or more primary considerations may outweigh other primary considerations.
ISSUES
The Applicant, by his Counsel, concedes that he does not pass the character test in sections 501(6)(a) and 501(7)(c) of the Act.[16] Therefore, the sole live issue for consideration is whether there is another reason why the Cancellation Decision should be revoked.[17]
[16] Applicant’s SFIC at [11].
[17] Section 501CA(4) of the Act.
THE APPLICANT’S CONDUCT AND OFFENDING
The Applicant has committed a number of offences, which are set out in Annexure A to this decision. The Applicant’s most serious conviction was one count of common assault, for which he was sentenced to 14 months’ imprisonment.[18]
[18] Exhibit R1, G3, 37.
As can be seen from Annexure A, many of the convictions resulted in fines or similar non-custodial sentences. The common assault conviction is his only violence related conviction. Otherwise, his criminal record is, unsurprisingly, the types of offences typically associated with homelessness. For example, there are several offences involving having a knife in a public place, which the Applicant explained to me in evidence was him being in possession of cutlery for his personal use when living in his car. There are also shoplifting and trespass offences, which the Applicant explained arose as a result of his homelessness and need to find food, clothing and shelter.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant concedes[19] that he fails the character test in section 501(6) of the Act because his convictions and the sentence imposed for them means he falls within the meaning of section 501(7), having been sentenced to a term of imprisonment of 12 months or more. That concession is properly made as his failure to pass the character test arises as a matter of law. [20] I find that he has failed the character test.
[19] Applicant’s SFIC at [11].
[20] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 [63].
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Given the power to revoke the Cancellation Decision is only enlivened if there is ‘another reason’, within the meaning of section 501CA(4)(b)(ii) of the Act, and the concession as to the character test, all the evidence and submissions at the hearing were directed at this question.
Protection of the Australian Community
Direction 110 at paragraph 8.1(1) requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Criminal history and other conduct
The Applicant’s most recent criminal history which gave rise to the Cancellation Decision is the conviction for common assault in August 2022, for which he was sentenced to a term of imprisonment of 14 months. This was his first and only conviction for an offence involving violence. His full criminal history set out in Annexure A discloses a life of petty crime of an unsurprising nature given his history of homelessness, mental health issues, and a lack of support since he came to Australia, just after his 18th birthday.
Nature and seriousness of the conduct
I must consider the nature and seriousness of the Applicant’s criminal offending and other conduct.[21] I am directed that certain types of criminal or other conduct is viewed very seriously by the Government and the Australian community[22] and that certain criminal or other conduct is considered serious[23]. The scope of what I may consider as either very serious or serious, is not limited to those matters specifically included in Direction 110.[24]
[21] Paragraph 8.1(1) of Direction 110.
[22] Paragraph 8.1.1(1)(a) of Direction 110.
[23] Paragraph 8.1.1(1)(b) of Direction 110.
[24] Paragraph 8.1.1(1)(a) – (b) of Direction 110.
The Applicant concedes that his August 2022 conviction for common assault was ‘serious’.[25] The Minister contends that the Applicant’s offending as a whole is ‘very serious’.[26] I do not accept that characterisation.
[25] Applicant’s SFIC at [23].
[26] Respondent’s SFIC at [32].
The Minister’s submissions fail to give any real consideration to the circumstances of the Applicant’s conduct. No analysis of the circumstances of offending was provided by the Minister and, despite hearing the Applicant’s evidence, the Minister persisted in what was plainly an untenable submission as to the seriousness of the offending as a whole.
The common assault conviction is plainly the most serious offence. The Applicant explained in his evidence that it occurred as a result of an altercation between the two individuals, him and the victim, at a shared house. Both of them sustained injuries as a result of the altercation. The Applicant pleaded guilty to the offence and received a total prison term of 14 months and had a violence restraining order made against him lasting for 2 years.
The Minister also made the submission that the victim was vulnerable as a result of being ‘elderly’. Whilst the victim was apparently aged 65 at the time of the offence, no other information was made available to support the proposition that he was elderly and vulnerable. It may be that a particular 65-year-old man is elderly and vulnerable, but it is not necessarily the case. In this case, the sentencing Magistrate did not make any finding that the victim of the common assault was vulnerable, so that paragraph 8.1.1(1)(b)(ii) of Direction 110 does not apply. I do not accept the submission that mere age alone is sufficient to find that a person is vulnerable or elderly, in the absence of any actual evidence to substantiate the broad generalisation and stereotyping that the Minister’s submission was grounded in.
Whilst violence is abhorrent and viewed seriously, this offence was plainly at the lower end, as reflected in the 14 months’ total sentence and the 7 months’ non-parole period. The Magistrate did not make any relevant comments regarding his view of the seriousness of the assault.[27] Notably, at the time of the sentencing, the Applicant had been in custody for a period longer than the non-parole period, as reflected in the Magistrate’s sentencing remarks:
That sentence commences on 24 January, so come 23 August 2022, which was about six days ago, you have served the non-parole period. That means you are entitled to be released to parole unless there is something else keeping you in custody. You will be on parole for seven months.[28]
[27] Exhibit R1, G9.
[28] Exhibit R1, G9, 60 Ln 24-27.
I do not regard the non-violent offending as serious within the meaning of Direction 110 at paragraph 8.1(1). Whilst there is a pattern of repeat offending, placed in the context of an Applicant who was young, homeless, without supports or family and new to the country having come from a war-torn past and years of struggling to survive in Yemen and Indonesia, along with his history of PTSD and schizophrenia, it is plainly wrong, but contextually explicable.
In my view, having regard to the evidence, and the concession made by the Applicant regarding the common assault offence, I have concluded the offending was serious but weighs only slightly against revocation.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I must also consider the risk to the Australian community should the Applicant commit further offences.[29] This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct,[30] and an assessment of the likelihood of the Applicant engaging in that type of conduct.[31] There is no statutory constraint on the way I am to assess that risk, other than the requirement for me to adopt a rational and probative approach to the assessment[32].
[29] Paragraph 8.1.2 of Direction 110.
[30] Paragraph 8.1.2(2)(a) of Direction 110.
[31] Paragraph 8.1.2(2)(b) of Direction 110.
[32] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
Nature of the harm
To determine the risk to the Australian community if the Applicant committed further offences or engaged in other serious conduct, I must consider the nature of the harm to individuals or the Australian community should he reoffend.[33]
[33] Paragraph 8.1.2(2)(a) of Direction 110.
The non-violent offending comprises a range of property offences, including shoplifting, trespass and larceny, some drug possession, and several convictions for possession of a taser and a knife.
(a)The property offences were not victimless and plainly caused harm by way of minor property damage and the dispossession of goods, as well as impacting the already busy workloads of the police, courts and the justice system as a whole. This is real, albeit relatively low level harm, to the Australian community as a whole.
(b)The possession appears to have been for personal use as a result of the Applicant’s drug addition, homelessness, and mental health issues. Other than inflicting personal harm on himself, the harm, if repeated, is also relatively low level harm to the community as a whole as a result of the impact on policing, the courts and the justice system as a whole.
(c)Given the knives were the personal cutlery of the Applicant, I do not consider that any future similar offending would cause harm to individuals or the Australian community, if repeated.
The more significant harm to the Australian community, and potentially to individuals, is most apparent with any repeat of the common assault or possession of a weapon, like the taser the Applicant has had in the past. I accept that there is real potential for people to be adversely impacted if these offences are repeated. I also accept that the underlying causes of these offences are to be found in the Applicant’s mental health issues, homelessness and drug addiction. Provided these issues are managed, I am of the view that the potential harm, whilst real, is only modest.
I consider the nature of the harm which may be caused if the Applicant reoffended in a similar manner to his past history, to be modest.
Likelihood of the non-citizen engaging in further criminal or serious conduct
To determine the risk to the Australian community if the Applicant committed further offences or engaged in other serious conduct, I must also consider the likelihood of reoffending if he is permitted to remain in the Australian community.[34]
[34] Paragraph 8.1.2(2)(b) of Direction 110.
Mr Rababi, a registered psychologist, provided a written report and gave oral evidence at the hearing. His report found:
[The Applicant] demonstrated strong insight into his mental health, recognising the impact of his substance abuse and untreated schizophrenia but also highlighting the positive changes he’s made, particularly his commitment to sobriety.[35]
[35] Exhibit A2, 3.
Following the administration of psychometric testing and based on a comprehensive history from the Applicant supplemented by his review of clinical and other records, Mr Rababi formed the view that the Applicant met the diagnostic criteria for:
Generalised Anxiety Disorder 300.02 (F41.1)
Post Traumatic Stress Disorder 309.81 (F43.10)
Opiod Use Disorder, in sustained remission, on maintenance, therapy in a controlled environment, sever 304.00 (F11.20) Severe
Schizophrenia, multiple episodes, currently in full remission 295.00 (F20.9) (Previously diagnosed).[36]
[36] Exhibit A2, 6.
Mr Rababi also found:
These conditions played a significant role in his offending behaviour, impairing his decision-making, emotional regulation and impulse control. Deporting him to Somalia, where he has no family or access to proper mental health carer, would greatly harm his well-being and undo the progress he has made in his recovery.[37]
. . .
The nexus between [the Applicant’s] mental health diagnoses and his offending behaviour is evident. His experiences of trauma, anxiety, and schizophrenia, compounded by substance abuse, contributed to a lack of emotional regulation, impaired decision-making, and poor impulse control. His offending behaviour occurred during a period when he was using drugs to cope with his mental health symptoms. The other diagnoses, particularly GAD, PTSD, and schizophrenia, were the underlying factors that led him to adopt such maladaptive coping strategies. Deportation to Somalia would likely deprive [the Applicant] of the critical mental health support he needs to continue his recovery, resulting in a significant decline in his well-being and exacerbating the symptoms that contributed to his offending in the first place.[38]
[37] Exhibit A2, 8.
[38] Exhibit A2, 9.
As to the risk of reoffending, Mr Rababi said:
The risk of recidivism for [the Applicant] will continue to decrease as long as he remains sober and continues to treat his mental health. [The Applicant] has shown significant progress in his recovery, and his risk of reoffending is low as long as he maintains his sobriety and adheres to his treatment plan. Importantly, [the Applicant] had no history of criminal conduct prior to his substance use, indicating that his offending behaviour was primarily driven by the combination of substance abuse and untreated mental health conditions.
He has demonstrated excellent insight into his offending behaviour and has shown genuine remorse for his actions. This self-awareness, combined with his commitment to recovery, further reduces the likelihood of future offending. [The Applicant] has successfully completed several rehabilitative programs, including drug and alcohol programs, a management course, technology programs, and a behavioral [sic] program. He advised these programs have equipped him with skills and strategies to better manage his emotions and actions.[39]
[39] Ibid.
I acknowledge that Mr Rababi had understood that the Applicant had an NDIS plan which would permit continued treatment and provide for his psychological and psychiatric care.[40] This was regarded by Mr Rababi as a protective factor and likely to reduce the likelihood of recidivism. Investigations initiated by the Tribunal were unable to identify proof that an NDIS plan exists[41] although, as the Applicant’s Counsel submitted, it appears that the Applicant is eligible for NDIS support[42]. The Applicant’s eligibility for NDIS support was not challenged by the Respondent.
[40] Exhibit A2, 10.
[41] Letter from the National Disability Insurance Agency dated 20 June 2025.
[42] Applicant’s submissions on eligibility for National Disability Insurance Scheme (NDIS) dated 16 June 2025.
The Respondent accepted that the Applicant did not present a high risk of reoffending. The Respondent also accepted that if the Applicant addressed his substance and mental health issues, he would be a low risk of reoffending.
In my view, the likelihood of the Applicant engaging in further criminal or serious conduct is low.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s conduct, and the risk to the Australian community should he commit further offences or engage in other similar conduct, I have concluded that this consideration weighs only slightly against revocation.
Family violence committed by the non-citizen
There is no evidence of family violence. Consequently, this consideration is irrelevant.
The strength, nature and duration of ties to Australia
In accordance with paragraph 8.3 of Direction 110, I must also consider the strength, nature and duration of the Applicant’s ties to Australia.
The Applicant arrived in Australia in 2017 and has not left since he arrived.[43] He has spent approximately 8 years living in Australia.
[43] Exhibit R1, G14.
Following the death of his Aunt in 2017, he was unable to continue to live in her home. His two female cousins married and moved, and his male cousin also married and moved away. He has lost contact with them. At this time, he was only 18 years of age and could not fund the rent for the home by himself, so he abandoned his studies and attempted to find work. He had some short-term employment but became unemployed and then homeless, and had to sleep in his car. He later moved to Sydney. Since being in Sydney, he has lived in various short-stay accommodations and suffered periods of homelessness and has apparently not been employed.
The Applicant has not identified any friends or relatives who might support him. He does express a desire, which I regard as entirely genuine, to make a positive life, to work, to have a family, and to contribute to Australia.
The social disfunction and disadvantage he has suffered has been a dominant feature of his life, since his birth. The fact that he has no real ties in Australia is hardly surprising given the tragedy of his life to date. Even the opportunity of a life in Australia has been stymied by the untimely death of his Aunt and the dislocation which this event brought to him at a young age. The fact that he is articulate and has some education is a testament to his character and perseverance.
He has contributed to Ramadan at Lakemba in Sydney and has undertaken studies at TAFE having obtained an automotive certificate. He has been employed at a tyre shop, in construction, and in solar power installation.[44].
[44] Exhibit R1, G10, 73 – 74.
The Minister’s written submissions criticise the Applicant’s lack of evidence of ties to family and others in Australia and the lack of ‘objective evidence’ of the positive steps the Applicant has made as set out in the paragraph above. It is an extraordinary submission to make in the context of this young man’s life, and symptomatic of an approach to the case that fails to grapple with the reality of the enormous hardship he has faced and the impact that has had on his ability to make a positive contribution to Australia.
Overall, I conclude that the strength, nature and duration of the Applicant’s ties to Australia weighs moderately in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
There are no minor children in Australia who would be affected by this decision. Consequently, this consideration is irrelevant.
Expectations of the Australian Community
I am required to consider the expectations of the Australian community as set out in paragraph 8.5 of Direction 110. The consideration of this question, as with the others, is done against the background of the principles set out in paragraph 5.2 of Direction 110 and specifically in this case, those matters set out in paragraphs 5.2(2), 5.2(3) and 5.2(4).
The first sentence of paragraph 8.5(1) is a reflection of the rule of law as it applies to both citizens and non-citizens.[45] The remainder of paragraph 8.5(1) sets out the expectations of the Australian community as a norm. I accept that the effect of this is to deem what the expectations of the community are and thereby preclude me from undertaking any assessment of what, in any particular factual circumstances, the actual expectations of the Australian community might be.[46] That proposition itself is contained in paragraph 8.5(4) of Direction 110. The utility of this approach by Government in order to assist decision-makers is obvious.
[45] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [69] – [70].
[46] Ibid at [67], [92] – [93].
The Applicant concedes that this consideration weighs in favour of non-revocation, but submits it should not be afforded significant weight so as to outweigh the other considerations that support the revocation of his visa.[47]
[47] Applicant’s SFIC at [43].
Paragraph 8.5(2) provides the following guidance:
Non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not... continue to hold a visa.[48]
[48] Paragraph 8.5(2) of Direction 110.
As discussed above, the Minister’s submissions emphasised what was said to be the ‘objectively elderly’ nature of the victim in the only violence offence which the Applicant had been convicted of. This was done in an effort to bring the offending within paragraph 8.5(2)(c) of Direction 110. As I set out above, I do not accept that based solely on the fact the victim was 65 years of age, he was elderly and vulnerable. This is the more so when the explanation offered by the Applicant, which I accept, was that the altercation which led to the offence being committed was very much a two-way street. In my view insufficient information is provided to properly ground the submission about vulnerability. I also reject the submission from Counsel that when a person is in their 60s, they are ‘objectively’ elderly, which was said be an ‘uncontroversial’ proposition. I do not accept that paragraph 8.5(2)(c) of Direction 110 applies to this matter.
I have dealt with the risk to the community if the Applicant were to reoffend earlier in my reasons. I accept there is some risk of some harm, but I do not regard it as other than a low risk. I do not regard this risk as unacceptable given the Applicant’s current treatment and commitment to reforming his life based on him remaining drug free and continuing his treatment for his mental health concerns.
I therefore find that the expectations of the Australian community weigh slightly against revocation in this case.
Other considerations
Legal consequences of decision under section 501 or 501CA
I am required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[49]
[49] Paragraph 9.1 of Direction 110.
This consideration also makes reference to the range of legal consequences of a decision not to revoke the Cancellation Decision. These legal consequences include:
(a)the Applicant’s unlawful status;
(b)becoming subject to detention and/or removal, pursuant to sections 189, 196, 197C and 198 of the Act;
(c)the refusal of other visa applications and cancellation of other visas, pursuant to section 501F of the Act;
(d)a prohibition on applying for other visas, pursuant to section 501E of the Act; and
(e)periods of exclusion and special return criteria may apply, pursuant to section 503 of the Act and special return criteria 5001 of the Migration Regulations 1994 (Cth).
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[50] Under section 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under section 198.[51] At the time of the hearing the Applicant was in immigration detention and was liable for removal.
[50] Section 15 of the Act.
[51] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112] – [122].
I accept the removal and visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of section 501. However, in my view the consequences of liability for removal on an individual applicant should not be ignored, irrespective of them being intended by the Parliament.[52] It is worth noting that the Parliament has not evinced any preference as to the outcome of a review like this one, and a positive outcome of the review will of course avoid the adverse consequences of the legislative scheme.[53]
[52] Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2024] FCA 1273.
[53] Stoneley v Minister for Immigration & Multicultural Affairs [2025] FCA 143 at [36].
The Applicant came to Australia as part of the international humanitarian program in July 2017, as an 18-year-old having a XB subclass 200 visa. Immediately prior to his arrival he was living in Indonesia and prior to that, from 2000 until early April 2014, he lived in Yemen.[54] He had fled Somalia as a 10-day old baby with his mother, as a result of the civil war and family conflict. He is a member of the Somali (Rer-Hamar) clan, a minority clan in Somalia. His father abandoned his mother when her pregnancy was discovered. In Yemen, he attended school for about 9 years but suffered disadvantage and abuse as a result of being an undocumented migrant. Ultimately in April 2014 he left Yemen and went to Indonesia with his Aunt.[55] About 6 months after his arrival in Australia his Aunt died. As a result of this he became homeless.
[54] Form 80 (Personal particulars for assessment including character assessment) dated 6 March 2017, 4.
[55] UNHCR assessment as per UNHCR Resettlement Registration From dated 24 February 2017 at [4.5].
When viewed against the relatively low level criminal record this Applicant has, and in light of the accepted reasons for his offending, including his traumatic background, which led to him being accepted in Australia at the age of 18 years of age under the humanitarian program, the intended outcomes of the Act are extremely harsh.
In addition, to return the Applicant to Somalia, where he is accepted by the Minister to be at risk given the clan he is a member of, and the on-going civil war that rages, raises considerable concern.
The Federal Government’s Smartraveller website offers the following advice in its update made in April 2025, which remained current at June 2025:[56]
[56] Australian Government, Department of Foreign Affairs and Trade, Somalia (Latest update) ˂ continue to advise:
Do not travel to Somalia due to the dangerous security situation and the threat of armed conflict, terrorism, kidnapping and violent crime.[57]
. . .
Do not travel to Somalia. If you’re in the country, leave as soon as possible. If you decide to stay, get professional security advice.
Terrorist attacks occur in Somalia . . . Recent incidents have caused hundreds of fatalities and injuries . . . [58]
[57] Emphasis in original.
[58] See too EUAA, COI Report – Somalia: Security Situation, May 2025, ˂>
The Minister’s criticism of the Applicant’s claims of harm as being ‘very vague and not supported by any corroborative evidence other than the Applicant’s own speculation’,[59] is not appropriate in light of the Smartraveller report and the EUAA Report which I provided to the Minister’s representatives prior to closing submissions.
[59] Respondent’s SFIC at [80].
I am not in a position to make a non-refoulement finding. However, the Minister concedes the Applicant can apply for a protection visa[60] and the claims can be properly assessed in that context. Having made that concession, and in light of the material readily available about the general security situation in Somalia, the Minister cannot maintain his submission that this consideration should be given neutral weight.
[60] Respondent’s SFIC at [81].
I find that in the particular circumstances of this case, this consideration carries strong weight in favour of revocation of the Cancellation Decision.
Extent of impediments if removed
Paragraph 9.2 of Direction 110 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-paragraph 9.2(1) are:
(a)the Applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in their country.
The Applicant is a citizen of Somalia but given he was primarily raised in Yemen, does not speak Somalian. The Applicant has been treated for schizophrenia, anxiety and depression since 2019.[61] He also suffers from PTSD.
[61] Patient Health Summary from [Applicant’s] Medical Centre dated 20 June 2025, 5.
Whilst he is an adult, being aged 26 years of age, he remains a young man and has significant vulnerabilities arising from his lack of Somalian language, his mental health issues, and the fact he fled Somalia aged only 10 days. These factors alone would cause him to have substantial difficulties in reintegrating into Somalia if he were to be returned.
In addition to these aspects which are personal to the Applicant, the security situation in Somalia, which I have set out above, is a substantive impediment to him being returned to that country.
I find that the extent of impediments if removed weighs heavily in favour of revocation.
Impact on Australian business interests
There is no evidence that any business interests would be affected by this decision. Consequently, this consideration is irrelevant.
CONCLUSION
I have found the Applicant does not pass the character test under section 501 of the Act.
I have therefore considered if there is another reason why the Cancellation Decision should be revoked, giving regard to the considerations set out in Direction 110, and weighing the various considerations in accordance with paragraph 7 of the Direction, and in accordance with the authorities which bind my decision making.
In determining the weight to be applied to each individual consideration, I have considered all the primary and other relevant considerations and weighed them in light of the evidence and according to the guidance provided by Direction 110.
Of the primary considerations, I find:
(a)the protection of the Australian community and the expectations of the Australian community both weigh slightly against revocation;
(b)the Applicant’s ties to Australia weighs moderately in favour of revocation;
(c)family violence is not relevant to my decision; and
(d)the best interests of minor children are not relevant to my decision.
In relation to those other considerations which are relevant to this Applicant’s case, I find:
(a)the legal consequences of the decision weighs strongly in favour of revocation and should be afforded strong weight in the Applicant’s case; and
(b)the extent of impediments if removed weigh strongly in favour of revoking the cancellation of the Applicant’s visa.
Paragraph 7(2) of Direction 110 states that primary considerations should generally be given greater weight than the other considerations. It also provides that the protection of the Australian community is generally to be given greater weight than the other primary considerations. In my view, the unique circumstances of this Applicant including the nature of his offending, the limited nature of the harm which might be caused should he reoffend, and the low risk of reoffending, mean that on balance in this particular case the general position identified in paragraph 7(2) of Direction 110 is displaced.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, I conclude that the primary considerations of protection of the Australian community and the expectations of the Australian community do not outweigh those primary considerations which weigh in favour of revocation, being the strength, nature and duration of ties to Australia, and the other considerations of the legal consequences of non-revocation and the extent of impediments if the Applicant is removed.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction 110, I am satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.
DECISION
For these reasons, I concluded that the decision of the delegate of the Minister dated 2 April 2025 not to revoke the cancellation of the Applicant’s Refugee (Class XB) (subclass 200) visa is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked under section 501CA(4) of the Migration Act 1958 (Cth).
I certify that the preceding ninety-four paragraphs are a true copy of the reasons for the decision herein of Deputy President Clare Thompson SC
.........................[sgd]...............................................
Associate
15 August 2025
Date of hearing: 10 and 11 June 2025 Counsel for the Applicant: Mr F Nikjoo Solicitors for the Applicant: Nikjoo Lawyers Counsel for the Respondent: Mr A Sharma Solicitors for the Respondent: HWL Ebsworth Lawyers ANNEXURE A – CRIMINAL CONVICTIONS[62]
[62] The manner of providing this information was very unhelpful. The material was presented as a cut and paste of the National Criminal History check, without any explanation provided of the codes used, the legislation under which the offences were committed, or even cross-matching of original convictions and sentences with appeal outcomes. Providing an information “dump” of this type is not consistent with the role of the Minister under section 56(1) of the ART Act. It is also unfair to the Applicant as the manner of presenting it made it appear as a far more extensive criminal history than in fact it is.
Court Offence Offence Date Conviction Date Sentence Paramatta Local Court Shoplifting value <=$2000 31/07/2019 01/08/2019 $250 Parramatta Local Court Goods in personal custody suspected being stolen 31/07/2019 01/08/2019 $250 Bankstown Local Court Travel or attempt travel without valid ticket - adult 27/08/2019 09/10/2019 $100 Bankstown Local Court Possess prohibited drug 27/08/2019 05/11/2019 Conviction with no other penalty Burwood Local Court Possess prohibited drug 10/10/2019 05/11/2019 $400 Burdwood Local Court Goods in personal custody suspected being stolen (Not M/V) 10/10/2019 05/11/2019 $200 Fairfield Local Court Goods in personal custody suspected being stolen 26/08/2019 22/11/2019 Community correction order: 12 months
Supervision: 12 months
Fairfield Local Court Shoplifting value <=$2000 26/08/2019 22/11/2019 Community correction order: 12 months
Supervision: 12 months
Bankstown Local Court Goods in personal custody suspected being stolen 27/08/2019 04/12/2019 Community correction order: 2 years
supervision: 2 years
Bankstown Local Court Fail to appear in accordance with bail acknowledgment 05/11/2019 04/12/2019 Conviction with no other penalty Bankstown Local Court Possess prohibited drug 06/10/2019 11/12/2019 $750 Fairfield Local Court Goods in personal custody suspected being stolen 21/11/2019 -
22/11/2019
12/02/2020 $500 Fairfield Local Court Give a false name 21/11/2019 -
22/11/201912/02/2020 $500 Fairfield Local Court Enter enclosed land without lawful excuse 02/11/2019 - 04/11/2019 19/02/2020 Conviction with no other penalty Bankstown Local Court Goods in personal custody suspected being stolen 27/08/2019 15/07/2020 $600 Bankstown Local Court Goods in personal custody suspected being stolen 26/08/2019 15/07/2020 $550 Bankstown Local Court Shoplifting value <=$2000 26/08/2019 15/07/2020 Community correction order: 18 months
Supervision: 18 months
Bankstown Local Court Shoplifting 27/05/2020 15/07/2020 Imprisonment: 2 months Bankstown Local Court Shoplifting value <=$2000 26/08/2019 21/09/2021 $500 Bankstown Local Court Goods in personal custody suspected being stolen 21/04/2021 21/09/2021 Imprisonment (aggregate): 7 months Bankstown Local Court Custody of knife in public place - subsequent offence 27/05/2021 21/09/2021 Imprisonment (aggregate): 7 months Bankstown Local Court Resist or hinder police officer in the execution of duty 16/07/2021 21/09/2021 Imprisonment (aggregate): 7 months Bankstown Local Court Escape police custody 16/07/2021 21/09/2021 Imprisonment (aggregate): 7 months Bankstown Local Court Custody of knife in public place - subsequent offence 16/07/2021 21/09/2021 Imprisonment (aggregate): 7 months Bankstown Local Court Goods in personal custody suspected being stolen 09/05/2021 21/09/2021 Imprisonment (aggregate): 7 months Bankstown Local Court Possess prohibited drug 28/05/2021 21/09/2021 Conviction with no other penalty Bankstown Local Court Possess prohibited drug 27/05/2021 21/09/2021 Conviction with no other penalty Bankstown Local Court Enter enclosed land without lawful excuse 16/07/2021 21/09/2021 Conviction with no other penalty Bankstown Local Court Not wearing approved bicycle helmet/fitted/fastened 09/05/2021 21/09/2021 Conviction with no other penalty Bankstown Local Court Possess or use a prohibited weapon without permit 18/10/2021 30/08/2022 $750
weapon/implement forfeited
Bankstown Local Court Common assault-T2 13/07/2021 30/08/2022 Imprisonment: 14 months
non parole period: 7 months
Parramatta District Court (on appeal from Bankstown Local Court) Goods in personal custody suspected being stolen 30/09/2022 03/11/2022 Community correction order: 12 months commencing Parramatta District Court (on appeal from Bankstown Local Court) Goods in personal custody suspected being stolen 30/09/2022 03/11/2022 Community correction order: 12 months Parramatta District Court (on appeal from Bankstown Local Court) Goods in personal custody suspected being stolen 30/09/2022 03/11/2022 Community correction order: 12 months Parramatta District Court (on appeal from Bankstown Local Court) Larceny value <=$2000 30/09/2022 03/11/2022 Community correction order: 12 Months Parramatta District Court (on appeal from Bankstown Local Court) Goods in personal custody suspected being stolen (Not M/V) 30/09/2022 03/11/2022 Community correction order: 12 months Parramatta District Court (on appeal from Bankstown Local Court) Goods in personal custody suspected being stolen (Not M/V) 30/09/2022 03/11/2022 Community correction order: 12 months Parramatta District Court (on appeal from Bankstown Local Court) Goods in personal custody suspected being stolen (Not M/V) 30/09/2022 03/11/2022 Community correction order: 12 months Bankstown Local Court Enter enclosed land without lawful excuse 24/03/2023 13/04/2023 $100 Parramatta District Court Enter enclosed land without lawful excuse 08/05/2023 26/07/2024 Conviction with no other penalty Parramatta District Court Armed with intent to commit indictable offence -T1 08/05/2023 26/07/2024 Community correction order: 15 months Parramatta District Court (on appeal from Bankstown Local Court) Larceny-T2 18/10/2024 06/02/2025 Imprisonment: 1 month Parramatta District Court (on appeal from Bankstown Local Court) Enter vehicle or boat without consent of owner/occupier 18/10/2024 06/02/2025 $150 Parramatta District Court (on appeal from Bankstown Local Court) Enter vehicle or boat without consent of owner/occupier 18/10/2024 06/02/2025 $150 Parramatta District Court (on appeal from
Bankstown Local Court)
Destroy or damage property 18/10/2024 06/02/2025 Imprisonment: 1 month ANNEXURE B – APPLICANT’S CUSTODIAL HISTORY[63]
[63] The Minister included in this table times when the Applicant was in remand and ultimately not convicted. This provides an inappropriate picture as, in the absence of understanding that the Applicant had been in remand and then not convicted, it suggests he has a far more serious criminal history than he in fact does.
Location
Type of Detention
Date Admitted
Date Released
Days
Court cells
Custody until fine paid
31 July 2019
1 August 2019
1
Correctional Centre
Custody until released on bail
7 October 2019
8 October 2019
1
Court Cells and Remand Centre
Custody until released on bail
22 November 2019
18 March 2020
118
Court cells and Remand Centre
Custody until released on bail
20 March 2020
7 April 2020
19
Court cells, Correctional centre and Long Bay Hospital
Remand - No conviction
28 May 2020
22 January 2021
240
Court cells
Custody until released on bail
28 May 2021
17 June 2021
21
Court cells
Imprisonment
17 July 2021
24 September 2021
70
Court cells, then Correctional Centre
Imprisonment
19 October 2021
30 August 2022
316
SCC and MRRC
Remand - Conviction
1 October 2022
14 November 2022
45
Various correctional centres
Remand – Conviction
9 May 2023
26 July 2024
445
SCC and PCC
Imprisonment
19 October 2024
17 November 2024
30
Villawood Immigration Detention Centre
Immigration
17 November 2024
25 June 2025
250
0
10
0