Farah and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3577

Farah and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3577 (3 November 2023)
Division:GENERAL DIVISION
File Number(s): 2023/6188
Re:Farhan Ahmed Farah
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R. West
Date:3 November 2023
Place:Melbourne

The decision under review is set aside and in substitution the Tribunal decides that the statutory discretion under s 501CA(4) of the Migration Act 1958 (Cth) is to be exercised to revoke the cancellation of the Applicant’s Class AH Subclass 117 Orphan Relative (Permanent) visa.
..............................[sgd]..........................................
Member R. West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – other considerations – legal consequences of the decision – extent of impediments if removed – decision set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences)Act 2023 (Cth)
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842
CKL21 v Minister for Home Affairs [2022] FCAFC 70
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DOB18 v Minister for Home Affairs [2019] FCAFC 63;
Erradi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 703
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
NHBK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 364
Pearson v Minister for Home Affairs [2022] FCAFC 203
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 167
Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Member R. West
3 November 2023

This matter concerns an application for the review of the decision of a delegate of the Respondent not to revoke the cancellation of the Applicant’s Class AH Subclass 117 Orphan Relative (Permanent) visa (Visa) under s 501CA(4) of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The Applicant was born in Somalia in August 1998.
He first arrived in Australia in February 2015 on a Class AH Subclass 117 Orphan Relative (Permanent) visa.[1]
[1] G9.
He was convicted in the Melbourne Magistrates’ Court of:
a.robbery and theft related offences and sentenced to an aggregate term of 8 months imprisonment on 10 December 2020; and
b.robbery and sentenced to 4 months imprisonment on 5 March 2021.[2]
[2] G3 and G4 at pp.29-32.
On 26 May 2021, the Applicant was convicted of armed robbery in the County Court of Victoria and sentenced to 26 months imprisonment.[3]
[3] G5 at pp.33-62.
On 16 June 2021 the Applicant’s Visa was cancelled under s 501(3A) of the Act (Cancellation Decision) and the Applicant notified of the cancellation and invited to make representations about revocation.[4]
[4] G10 at pp.154-159.
On 5 August 2021, the Victorian Supreme Court allowed an appeal against the Applicant’s 26 May 2021 sentence and re-sentenced the Applicant to 9 months imprisonment.[5]
[5] G6 at pp.63-76.
On 24 November 2021, the Applicant was again notified of the cancellation of the Visa and invited to make representations about revoking the Cancellation Decision.[6]
[6] The previous notification and invitation of 16 June 2021 was held by the Federal Circuit Court (DPV21-MLG2650/2021) to not meet with the requirements of the Act identified in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship,Migrant Services and Multicultural Affairs [2021] FCAFC 174 which necessitated a renotification.
On 26 November 2021 the Applicant sought revocation of the cancellation of the Visa and made representations to the Respondent as to why the cancellation of the Visa should be revoked within the prescribed period and in the manner specified.[7]
[7] G14 and G15, 16, 17,18,19 and 20.
On 15 August 2023 a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Visa (Reviewable Decision).
The Applicant was notified of the Reviewable Decision on 16 August 2023.[8]
[8] G2.
On 24 August 2023 the Applicant applied to the Tribunal for review of the Reviewable Decision (Application).[9]
[9] G1 at pp.1-6.
HEARING
The Tribunal conducted a hearing of the Application on 23 and 24 October 2023. The Applicant was represented by Mr David Carolan of counsel. The Respondent was represented by Mr Christopher Orchard, a solicitor.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 501G of the Act, sequentially numbered G1 to G26 and paginated from pages 1 to 274
(G Documents), and further documents including those produced under summons and lodged by the Respondent as supplementary documents marked as Exhibits TB1 to TB4 and paginated from pages 1 to 123 (SG Documents);
(b)the documents lodged by the Applicant and marked as Exhibit A in Appendix A, and
(c)the oral evidence of:
(i)the Applicant;
(ii)Fatuma Farah;
(iii)Jamila Farah; and
(iv)Dr Laura Anderson.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a)the Applicant passes the character test as defined in s 501; or
(b)there is another reason why the cancellation should be revoked.
Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record.
Section 501(7) relevantly provides that for the purpose of the character test, a person has a substantial criminal record if:
(a)…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
Section 5AB of the Act provides:
The provisions of this Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.
This provision was introduced into the Act by the Migration Amendment (Aggregate Sentences) Act 2023[10] which came into effect on 17 February 2023 and had retrospective effect.[11]
[10] In response to the decision in Pearson v Ministerfor Home Affairs [2022] FCAFC 203.
[11] Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 167.
Applicant’s Criminal Record
A complete statement of the Applicant’s criminal record is set out in a National Criminal History Check produced by the Australian Criminal Intelligence Commission.[12] It records that:
(a)On 10 December 2020 the Applicant was convicted in the Melbourne Magistrates’ Court of without authority/excuse enter private place, robbery, theft, attempted robbery, attempted carjacking robbery, commit indictable offence whilst on bail (2 charges), contravene a conduct condition of bail (3 charges), theft from a shop and fail to answer bail and was sentenced to an aggregate 8 months imprisonment.
(b)On 7 January 2021 the Applicant was found guilty in the Melbourne Magistrates’ Court of theft, theft from shop and commit indictable offence whilst on bail and was fined $800 without conviction.
(c)On 5 March 2021 the Applicant was convicted in the Melbourne Magistrates’ Court of robbery and sentenced to 4 months imprisonment.
(d)On 26 May 2021 the Applicant was convicted in the County Court of Victoria of armed robbery and sentenced to 26 months imprisonment, the sentence being reduced to 9 months imprisonment by the Supreme Court of Victoria on appeal on 5 August 2021.
[12] G3 and G4, pp.29-32.
The Applicant’s criminal record includes sentences of 8 months imprisonment on 10 December 2020 and further periods of 4 months on 5 March 2021 and 9 months on 5 August 2021. On the basis that the total term of imprisonment for these three sentences exceeds 12 months the Tribunal is satisfied that the Applicant has a substantial criminal record as defined in s 501(7) and that by virtue of s 501(6)(a), the Applicant is deemed not to pass the character test.
The Applicant concedes that he does not pass the character test.[13]
[13] ASFIC at [10].
Accordingly, the sole issue before the Tribunal is whether, under s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant’s Visa should be revoked.
On 23 January 2023, the Minister issued Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 99) to commence operation from 3 March 2023. Direction 99 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s Visa should be revoked.
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the direction.[14]
[14] See Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, [17].
DIRECTION 99
Clause 6 of Part 2 of Direction 99 provides that decision-makers must take into account the considerations identified in cls 8 and 9, where relevant to the decision.
Clause 8 of Part 2 sets out five primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
Clause 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests.
Clause 6 stipulates that the decision-maker must be informed by the principles stated in cl 5.2 in assessing these considerations.
EVIDENCE
Sentencing Remarks
The Tribunal has had regard to the transcript of the proceedings in the County Court of Victoria[15] and the sentencing remarks of Justice Tinney in sentencing the Applicant on 26 May 2021[16] and the appeal judgement of the Victorian Supreme Court sitting as the Court of Appeal in reviewing the sentence dated 5 August 2021.[17]
[15] G7 at pp.77-151
[16] G5 at pp.33-62.
[17] G6 at pp.63-76.
Applicant’s Evidence
The Applicant affirmed his statement of 13 October 2022[18] and gave oral evidence at the hearing.
[18] G16 at pp.191-196.
In his statement, the Applicant stated:
(a)He was born on 3 August 1998 in Hosingow, Somalia. He has four older sisters: Jamila, Edilo, Abshiro and Fatuma.
(b)Not long after he was born his father passed away from illness and his mother re-married and had two more daughters. In 2006 his step-father was abducted by the military and his mother went to look for him and never came back. He was told later by family members that his mother died in a bomb blast in around 2008.
(c)Life in Somalia was really difficult. He had to hustle to live and he would sell clothes or whatever he could obtain to get money to buy food. There were days when he couldn’t eat. There was war and violence everywhere and he never knew when it would be his turn to die. People were killed for no reason all the time.
(d)In about 2008, he fled to Kenya with his sisters after Edilo’s brother in law was killed and her husband disappeared. Edilo’s husband later joined them in Kenya but he died from illness. At first, they lived in the Hagardheer refugee camp in North East Kenya, which was really hard and unsafe. Later he and Fatuma moved to Nairobi and lived with another family and eventually in a rented place. While in Nairobi he and Fatuma were supported by his sister Jamila and her husband from Australia.
(e)While in Nairobi he attended high school but life was really tough.
(f)He arrived in Australia on Class AH Subclass 117 Orphan Relative visa with his sister Fatuma on 6 February 2015. He has not departed Australia since then.
(g)At first he and Fatuma lived with Jamila but the house was crowded so they moved out and lived in a commission house. He attended school at Reservoir High School but struggled to be engaged with school because he had difficulty learning, having never gone to school properly before. He stopped attending school at around age 15. He studied carpentry at TAFE for about 8 months which he enjoyed.
(h)He said that by the age of 18 he was drinking a lot of alcohol to block out the bad memories from his childhood and had fallen in with a bad crowd.
(i)He first offended when he was around 21 years old. His drinking and drug taking was really bad around this time and he doesn’t remember the offending very well because he was drug or alcohol affected.
(j)In custody, he undertook education including a drug and alcohol course in prison and courses on traffic management to help him prepare for the work force. While on Christmas Island he was unable to do any courses or get proper counselling, but he is keen to get some counselling when he is released.
(k)If he is released, he plans to start working and to turn his life around.
(l)As to his ties to the Australian community, his sisters Fatuma and Jamila live in Australia and he talks to them almost every day.
(m)Jamila has six children. The eldest is around 13 years old. He has a good relationship with his nephews and nieces but he doesn’t speak to them much because they are younger than him and its difficult from inside a detention centre. Fatuma has one child, Zain, who was born in November 2021 and he would like to have a relationship with him too. He would like to have a relationship with his nieces and nephews and be there for them growing up. He is their only maternal uncle. It would impact them a lot if his visa cancellation is not revoked. They would not get to see him and he would not be able to be there for them.
(n)He has been diagnosed with depression, substance abuse disorders and complex trauma because of the experiences he has had in his life, especially the things that happened to him in Africa. He can’t sleep very well and usually feels quite down. He started taking antidepressants (Avanza) in prison and found this helpful. The medication helps keep him calm.
(o)He used to be dependent on alcohol and various drugs like cannabis and painkillers but regrets using them now. When he lived in Africa, robbery and theft happened all around him and he saw many people close to him die. He had a hard time feeling safe. After he came to Australia he didn’t know how to handle his thoughts and memories so he used drugs and alcohol to block out the pain. All of his offending happened when he was intoxicated from alcohol and other drugs. He knows that this is no way to cope with his bad thoughts.
(p)He now has better ways to cope. He trains at the gym every day which helps him feel good and listens to a lot of music which helps him feel calm. He will continue to do this in the community and stay on the right path.
(q)He cannot return to Somalia. There is still deadly tribal conflict and he could be killed. Many of his relatives have been killed in the past. He has been told there is famine in Somalia right now. He does not speak Somali well anymore and often mixes in English words so people would know that he has lived in a foreign country and think he has money and target to rob him or kill him.
(r)He does not have anyone he could rely on for support in Somalia. He has two sisters in Australia and two in Kenya. He acknowledges that before he was born his father had two other children who may still be in Somalia but he doesn’t really know them, they are much older than him and he has no idea if they are even still in Somalia or still alive. He is not in contact with them or with any cousins, uncles, aunties or any other relatives in Somalia.
(s)He would not be able to get a job in Somalia and would have nowhere to live.
(t)He concluded:
I am really sorry for what I have done. I have turned my life around and want to stay on the right path. I ask for a second chance to be a good member of the community in Australia.
The Applicant said in his oral evidence that:
(a)His memory of life in Somalia was limited.
(b)He started drinking and taking pills and smoking cannabis when he was 17 or 18. He said he was influenced by some bad people and thought it was because he was distant from family and had no job.
(c)He is now changed. He has started reading the Koran and praying five times per day. He goes to the gym and exercises, reads books and listens to music which makes him relax.
(d)He has little recollection of his offending because he was very drunk at the time. He recalled an occasion when he got into someone’s car without permission and they called the police. He remembered that his conviction on 1 March 2021 was for stealing a phone and wallet from a 15 year old boy.
(e)He said he felt for his victims and said no one should have to go through what he did to them and he felt guilty about it.
(f)He said he had worked in warehousing while in prison and had completed a certificate in traffic management and a drug and alcohol course.
(g)He said that if released he wanted to get a job, continue to exercise, spend time with his family and stay away from bad people.
(h)He said he will not drink alcohol or take drugs if released because he is now very religious and had moved on from doing that.
(i)He said he spent time with his sister Jamila’s children before he was imprisoned and played soccer with them and took them to the park.
(j)He confirmed that he speaks Somali but with an accent.
(k)In cross examination he confirmed that he currently takes antidepressant medication but denied that he had been diagnosed with any mental health condition or had any such condition other than talking in his sleep. He said he would see a psychologist if released but had made no arrangement yet to do so. He would access his sister’s general practitioner.
(l)He was taken to prison disciplinary records and denied assaulting other prisoners or abusing prison staff as recorded.
Witnesses
Fatuma Farah
Ms Farah provided a written statement dated 12 October 2022[19] and gave oral evidence at the hearing.
[19] G19 at pp.212-213.

In her written statement Ms Farah stated:
(a)The Applicant is her younger and only brother with whom she is very close.
(b)The Applicant calls her regularly even from detention, and she sends him money to buy things, usually every two weeks.
(c)She has a baby, Zain Ali (born 16 November 2021) and lives with her partner. She wants the Applicant to have a relationship with Zain.
(d)She would be devastated if the Applicant has to go back to Somalia. Somalia is not safe at all. The Applicant will die if he goes back. He does not have any close relatives left in Somalia. There are members of the extended family somewhere in Somalia but they are not in touch with them and the Applicant will not be able to find them and ask for help.
(e)She described the Applicant’s mental health issues as follows:
I understand a little bit how hard things have been for [the Applicant] who has mental health problems. If he is released from detention, his mental health will be under control because he will be on medication. He is no longer drinking or taking drugs. We have spoken many times about what he did and he has told me that he does not remember a lot. It’s because of his drinking and his mental health problems – he would get really drunk and do stupid things; afterwards he would not remember what he was doing and when he finds out he would cry and feel terrible about himself and the harm he caused. He’s better now and I know he won’t do anything like this in the future.
(f)She said that the Applicant understands that he cannot be friends with the same people as before. They are not good for him. They will leave him alone now and the Applicant knows not to try to contact them at all in the future.
(g)She said she has seen a lot of change in the Applicant. He is not an irresponsible child anymore. He says he needs to get married, study and work, and she believes him.
In her oral evidence Ms Farah stated:
(a)She confirms that the Applicant was led into trouble by bad friends in about 2018, but now he is more mature and won’t go back to them if released.
(b)She said she was not aware of his alcohol and drug use or his offending until he was arrested.
(c)She said she spoke to the Applicant in prison when he called her and asked for money. Now that he is in detention she speaks to the Applicant about once per week.
(d)If the Applicant is released he will live with her and her partner and son in their two-bedroom flat in Collingwood. She will support him to access a psychologist and whatever he needs.
(e)She would be upset and concerned if he was sent to Somalia. His arrest affected her when she was pregnant and contributed to her becoming depressed.
Jamila Farah
Ms Farah provided a written statement dated 11 October 2022[20] and gave oral evidence at the hearing.
[20] G19 at pp. 214-217.
In her written statement Ms Farah stated:
(a)The Applicant is her only full brother and she loves him very much. He is an orphan, just like her and has been through a lot in his life.
(b)She was born in Kismanyo in Somalia in 1985 and lived there until the start of the civil war in 1991. When the war started her family moved to Hosingow in Somalia. The Applicant was born in Hosingow in 1998. When he was a baby, their father died. Their mother re-married in 2003. She and her second husband had two daughters together. She believes her two half-sisters are in Kenya now. Around 2006 her mother’s second husband left the family to go to Kismanyo and she believes he was kidnapped by the military. Around 2008, her mother said she wanted to find him, left the house and never came back. She was later told her mother died in a bombing.
(c)For a while after her mother left, her sister Edilo looked after the Applicant, Fatuma and Edilo’s own young children in Somalia. In 2008 Edilo’s brother-in-law was killed and her husband disappeared. She fled with the Applicant, Fatuma and her own five children to the Hagardheer refugee camp in Kenya. Edilo’s husband turned out to be alive and joined them later in Kenya but then later he passed away. Eventually, because she could not cope, Edilo sent Fatuma and the Applicant to live with a Kenyan family.
(d)In 2005 she came to Australia on a Partner Visa to be with her husband whom she had married in Kenya in 2004. Her mother and all her siblings and half-siblings including the Applicant stayed behind. Her husband had come to Australia in 1992 with his family as refugees. She and her husband are both Australian citizens and they now have six children. Her sister Fatuma has applied for Australian citizenship and is waiting for it to be approved.
(e)She has completed a childcare certificate and worked in the field for a few years. Later she studied aged care and worked in that field for about three years. She then stopped working to raise her children.
(f)She sponsored the Applicant and her sister Fatuma to come to Australia to improve their chances for a better life.
(g)The Applicant and Fatuma arrived in Australia in early 2015 and for the first two years the Applicant did well. He loved Australia as there was safety and no tribal fights.
(h)He tried his best to be a model student, he went to the language centre in Collingwood to learn English and after one year he went to Reservoir High School. She and her husband rented a house and the Applicant and Fatuma live with them for one year to settle them in. The Applicant attended school and did casual jobs at the market. He also went to the soccer club two days a week for training after work, and on Sundays he played soccer matches. On Fridays he used to go swimming with one of his Chinese friends.
(i)At Reservoir High School there were a lot of Sudanese and Somali students. The Applicant looked a lot younger than he was, he wasn’t mature and she thinks he had developmental delays. The students upset him, he couldn’t settle down. He had no positive role models of his age. He had never had a proper education before Australia and he struggled academically. Then he dropped out. When he stopped going to school, he did not think it was a big deal. The other boys used him to break the rules and then the law. A lot of trouble started because the Applicant could never say no to the other boys who were up to no good. He is not that smart and he is meek.
(j)To keep him out of trouble, the family moved house. Even then a few of the boys still came looking for him. They were always asking him to go out with them. He could not say no to them and she could not stop him. The other boys told him not to listen to her because she was not his mother.
(k)Trying to manage the Applicant became a full-time job for her. He couldn’t sleep and she couldn’t either. Boys would come and knock on the door at 4-5am and she did not know what to do. They called him constantly. She changed his phone number and went to the police. The police could not do anything. Sometimes she had to go out in the middle of the night to look for the Applicant. The boys controlled him.
(l)Sometimes the boys would steal things and they would give the things they stole to the Applicant and take his clothes off him so if the police caught him, he would be blamed.
(m)She said she feels so sad that the Applicant is not at the soccer club anymore. Her children have started playing there and if he is released the Applicant could start playing again.
(n)She described the Applicant as a good helper, he used to help her vacuum the house and put the children’s shoes on them. He never talked back to her. He was a soft-hearted person.
(o)When the Applicant was last released by the court conditionally, he was supposed to receive counselling and services to go back to study and work. Unfortunately, due to Covid, the service providers who were supposed to provide these services were mostly working from home and could not provide the services he was supposed to receive at the time.
(p)She believes the Applicant is truly sorry for his actions and for what he has put his victims and his family through. When he drinks or take drugs, he forgets what he has done and he cries when it is explained to him.
(q)She concluded:
As his older sister, I know [the Applicant] is more than capable of reforming and getting on a better path. I’m certain that if he is given a chance, he will reform and rebuild his future for the better. He is keen to restart his life and the family will help him as much as we can.
If he has a place to live and does his best to establish himself, I will help him with things he needs. But I think that in the past I spoiled him too much and he did not get a chance to grow up and be responsible.
(r)If the Applicant is sent back to Somalia he will probably die and her whole family will be devastated. The Applicant only has a few distant relatives who live in Somalia but no close relatives. The Applicant has lost many, many people who were close to him in Somalia and he can be killed too if he goes back. It is still a dangerous country.
In her oral evidence to the Tribunal, Ms Farah stated:
(a)In the first two years the Applicant was in Australia he was involved in playing soccer and swimming, he worked at the market 3 days per week, attended language school and had Chinese friends with whom he went to a farm.
(b)She said his trouble started after he made friends with some African boys at school. They gave him a hard time because his English was poor and they bullied him. She said the Applicant recognised they were bad people who would lead him into trouble and asked her to take him back to Kenya to learn English before he came back. She said these bad friends controlled the Applicant who was weak.
(c)She took the Applicant to stay with an aunt in Adelaide in August 2018 and again in December 2018 to get him away from the bad people but they found him again when they returned to Melbourne.
(d)She confirmed that the Applicant would live with Fatuma in Collingwood if released but she was trying to relocate him from Collingwood because that was where the bad people lived.
(e)She agreed the Applicant was susceptible to bad influences.
(f)She said she didn’t speak to the Applicant in detention often because she became emotional and she would be devastated if he was sent back to Somalia or detained indefinitely.
Other Evidence
Psychologist’s Report
Dr Laura Anderson, a clinical psychologist, provided a written report dated 7 December 2020[21] and an addendum report of 11 April 2021[22] and gave oral evidence at the hearing.
[21] G17 at pp.197-208.
[22] G18 at pp.209-211.
Dr Anderson assessed the Applicant on 12 November 2020 at the request of his legal representative for the purpose of his matters then before the courts. Dr Anderson stated in her report of 7 December 2020 that:
Mr Farah presents as 22-year-old Sudanese man whose childhood was characterised by exposure to war and conflict, significant experiences of grief and loss, and overall instability and a lack of psychological safety. It is clear that Mr Farah found his early life experiences to be highly traumatic and this has had a long-lasting impact upon his emotional development. He has subsequently developed an avoidant coping style in which he maladaptive engages in alcohol and other drug use as a means of avoiding his negative emotional experiences. It is opined that he meets the diagnostic criteria for Complex Post-traumatic Stress Disorder and has severe disordered levels of alcohol, cannabis and sedative use. Furthermore, it is my clinical opinion that these psychological factors, in conjunction with his early childhood normalisation of antisocial means of having ones needs met, act as precipitants for his recent engagement in offending behaviour. Nonetheless, Mr Farah presented with a reasonable level of insight into how these factors contribute to his pattern of offending behaviour and he currently presents as highly motivated to engage with support services to address these relevant factors[23].
[23] G17 at p.207.
Dr Anderson provided several recommendations to address the psychological factors that appear to contribute to the Applicant’s pattern of offending behaviour, including:[24]
(a)intensive alcohol and drug counselling;
(b)support services and psychological intervention to address his early childhood experiences;
(c)support to pursue appropriate employment options;
(d)support to engage in prosocial social engagement such as a local sporting club;
(e)ongoing connection with his family; and
(f)referral to a neuropsychological assessment to better understand his current lower level of cognitive functioning.
[24] G17 at p.208.
In her oral evidence Dr Anderson stated:
(a)She clarified her diagnosis of complex PTSD as arising from prolonged and multiple trauma events associated with the conflict in Somalia and the Applicant witnessing the death of family and friends.
(b)Her diagnosis was based on the self-reported evidence of the Applicant and also empirical psychometric evidence and her own observations of the Applicant.
(c)She described the Applicant as being of below average cognitive ability and borderline to the disabled range. This led to the Applicant expressing himself in basic language and in simplistic and unsophisticated terms. She said this was exacerbated when under stress.
(d)The Applicant used alcohol to block out memories and thoughts as a maladaptive coping mechanism causing him to revert to normalised behaviour from his childhood.
(e)She noted that at the time of her report in 2020 the Applicant was in the early stages of remission from drug and alcohol abuse and given his abstinence while in prison and detention he could be now regarded as in sustained remission in a controlled environment.
(f)She opined that the Applicant was susceptible to impressionable peers and easily influenced by bad people but conversely if he was exposed to positive peers it would help him navigate issues with the positive values of that group.
(g)She stated that there were positive indications for the Applicant’s rehabilitation. He had insight into the cause of his offending. He did not have antisocial attitudes. He had strong family connections. She opined that he would improve the prospect of avoiding reoffending by receiving treatment for his alcohol and drug use, by getting positive peer group support, and by psychological counselling under a mental health plan (available to him under Medibank).
(h)She said that a return to Somalia would almost certainly astronomically escalate his hypervigilance and she would have serious concerns for his mental health. She said indefinite detention would likely lead to an experienced trauma response and result in a sense of hopelessness and depressed mood.
Other Evidence
The Applicant also tendered the following articles which were marked for identification purposes as Exhibit A:
(a)Submission to Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. 7 May 2022
(b)Parliamentary Joint Committee on Human Rights. 29 April 2021
(c)Amnesty International Report, “The impact of indefinite detention”. 29 June 2005
(d)DFAT Country Information Report Somalia. 13 June 2017
(e)US State Department Country Report on Human Rights Practices Somalia 2022. Released 20 March 2023
(f)Source Guide on the Cost of Australia’s Refugee and Asylum Policy. 26 April 2022
PRIMARY CONSIDERATIONS – CLAUSE 8 OF PART 2
Protection of the Australian Community
In considering the protection of the Australian community, the Tribunal has had regard to the matters set out in cl 8.1(1) and (2) of Part 2 of Direction 99.
Clause 8.1(2) requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and Seriousness of the Applicant’s Conduct to Date
Clause 8.1.1(1) of Part 2 of Direction 99 provides a description of what is considered very serious and serious conduct. Paragraphs 8.1.1(1)(a)(i)-(ii) lists certain crimes of violence which are to be regarded as very serious. Paragraph 8.1.1 (1)(b) gives examples of crimes which are to be regarded as serious.
The factual circumstances giving rise to the Applicant’s conviction for armed robbery on 26 May 2021 are set out in the Court of Appeal’s reasons for judgement dated 5 August 2021.[25] In summary the circumstances were:
The Applicant acted in company with two accomplices “F” and “C”. The victim was a student known to each of the offenders. At around 3.30pm on 26 August 2019 the Applicant, F and C were sitting in a car outside the home of “S”. The victim approached the car on his way home from university. F called the victim over to the car and asked him to make a phone call to “S” who was known to the victim and lived in an adjacent apartment. When the victim produced his mobile phone to make the call C got out of the car and grabbed the phone out of his hand. C then produced a taser. The Applicant exited the car, approached the victim and grabbed the victim’s Airpods from his jacket pocket. C then demanded that the victim disclose his iCloud password. The victim refused. C waved the taser in the direction of the victim and threatened to use it if he did not get the password. The victim attempted unsuccessfully to snatch the iPhone back from C. C then activated the taser attempting to hit the victim but missed. S, who had by then exited his apartment, intervened and the Applicant, F and C got back into the car and drove away with the iPhone and Airpods.
[25] G6 at pp.65-66, [6].
The offending on 26 August 2019 involved violence, at least in relation to the threatened and actual discharge of the taser. Armed robbery is by its nature a crime of violence and it is not essential that actual physical harm be inflicted on the victim. As the Tribunal has noted:
The concept of “violence” is not one that appears to have been the subject of exhaustive definition. Nevertheless, as understood both at common law and in the context of its etymology, it encompasses not only actual physical force but also “threats or menaces to induce fear and terror or to intimidate.” Hence, an act of violence includes “... acts of intimidation and menaces as well as physical force.[26]
[26] Erradi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 703 at [46] as endorsed by Perry J. in DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [87].
Although the Applicant did not actually utilise the taser in the robbery, he participated as a co-offender in subjecting the victim to what the sentencing judge described as a frightening offence.
The Court of Appeal noted in its judgement regarding the sentence for armed robbery on 5 August 2021 that:
By its nature, armed robbery is a serious crime. The applicant’s offence is, however, a long way from being in the worst category.[27]
[27] G6 at p.75, [27].
On 10 December 2020 the Applicant was convicted of without authority/excuse enter private place, robbery, theft, attempted robbery, attempted carjacking robbery, commit indictable offence whilst on bail (2 charges), contravene a conduct condition of bail (3 charges), theft from a shop and fail to answer bail and was sentenced to an aggregate 8 months imprisonment.
The Respondent highlighted the Applicant’s conviction for attempted carjacking and asserted that it was also a crime of violence and inherently serious conduct.

Section 79(1) of the Crimes Act 1958 (Vic) defines carjacking as:
A person (A) commits a carjacking if—
(c)A steals a vehicle; and
(d)immediately before or at the time of doing so, and in order to do so, A—
(i)uses force on another person; or
(ii)puts or seeks to put another person (B) in fear that B or anyone else will then and there be subjected to force.
Sub-section 321N(2) of the Crimes Act provides that
For a person to be guilty of attempting to commit an offence, the person must—
(a)intend that the offence the subject of the attempt be committed; and
(b)subject to subsection (2A), intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the offence is to take place.
The Tribunal is satisfied that the Applicant’s conviction for attempted carjacking at least involved the formation of an intent by the Applicant to use force or to put another person in fear and as such it was an inherently serious offence. In addition, the aggregate sentence of 8 months imprisonment imposed by the court for all of the offences indicates that the offending taken as a whole involved serious conduct on the Applicant’s part.
On 7 January 2021 the Applicant was found guilty in the Melbourne Magistrates’ Court of theft, theft from shop and commit indictable offence whilst on bail and was fined $800 without conviction. The relatively lenient penalty imposed in circumstances where the Applicant had prior convictions for similar offences suggests that these offences were not particularly serious offences. The Applicant stated in his oral evidence that the offence related to shoplifting.
On 5 March 2021 the Applicant was convicted in the Melbourne Magistrates’ Court of robbery and sentenced to 4 months imprisonment. The Applicant confirmed in his oral evidence that the victim in this case was a 15 year old boy from whom he stole a mobile phone and a wallet. The nature and seriousness of this offence was commented on by Justice Tinney in sentencing the Applicant on the armed robbery charge on 26 May 2021. His Honour said
You were also before me in relation to an appeal against the sentence imposed at the Melbourne Magistrates' Court on 5th March of this year. On that occasion, you received a four-month prison term for a charge of robbery. It was unusual in the sense that the robbery could have come up to this Court with both matters heard together. Instead, it was severed off and heard summarily in a setting where there was already a plea date in this Court for this armed robbery. It was all a bit messy. I suppose you got the advantage of the jurisdictional limits to the maximum allowable penalty which apply to the Magistrates' Court. Anyway, you were quite lucky to receive such an outcome given the nature and seriousness of that offence, targeting as it did a 15-year-old, and with significant enough impact. That appeal was abandoned at the outset of the hearing after I had warned of the possibility of an increase in penalty.[28]
[28] G5 at p.34, [1].
The Respondent sought to rely on the police charge sheet related to the incident giving rise to the robbery conviction[29] to establish the circumstances of the robbery offence. The Applicant objected. The information in the charge sheet is untested and the Applicant was not taken to it in any detail in his evidence. The Tribunal is not satisfied that it is a proper basis to make findings of fact related to the offence. However, based on the Applicant’s admissions and the comments of Justice Tinney on 26 May 2021, the Tribunal is satisfied that the Applicant’s offending for which he was sentenced on 5 March 2021 was committed against a 15 year old victim and therefore a vulnerable member of the community. It was therefore serious offending of the kind described in cl 8.1.1(b)(ii).
[29] TB4 at p.51.
The Applicant’s convictions for offences on 10 December 2020 and 5 March 2021 and the findings of guilt on 7 January 2021 were for essentially property offences. Under cl 8.1.1 (1)(b)(iii) conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test is to be regarded as serious conduct. Of the aspects of the character test listed in s 501(6) the only one relevant to the Applicant is s 501(6)(c)(i) which provides that a decision-maker may form an opinion that having regard to the persons past and present criminal conduct the person is not of good character. Property theft demonstrates a disregard for the property rights of members of the Australian community and is the kind of conduct that may form the basis of a finding that the Applicant is not of good character and is therefore serious conduct.
The descriptions given in cl 8.1.1(1)(a) and (b) are not exhaustive and cl 8.1.1(1)(c)-(h), set out a range of factors decision-makers must consider in assessing the nature and seriousness of the criminal offending or other conduct to date. This includes, for relevant purposes in this case:
(a)the sentences imposed by the court;
(b)the frequency of the Applicant’s offending; and
(c)the cumulative effect of any repeated offending.
The Applicant has been found guilty of multiple offences in four separate court appearances. The frequency and effect of his repeated offending indicates that his criminal conduct was serious. However, as the Applicant points out, it is relevant to take into account that the offending is confined to a relatively short period between August 2019 and July 2020 with his four court appearances being in the period from December 2020 to May 2021. Prior to August 2019 he had lived in Australia for over 4 years without any convictions, a matter noted by the Court of Appeal in reviewing his sentence for the armed robbery offence.[30]
[30] G6 at p.75, [29]
Nevertheless, the Applicant was subject to three separate terms of imprisonment. The Tribunal has recognised that:
Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.[31]
[31] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Having regard to these considerations the Tribunal finds that the nature of the Applicant’s criminal conduct to date has involved serious offences against the property rights of members of the community and has involved violence, albeit not actual physical violence by the Applicant personally.
In assessing the seriousness of the Applicant’s conduct it is relevant that theft and particularly armed robbery have the potential to inflict distress and anxiety on the victim even if no actual physical assault is involved. The sentencing judge recognised the potential impact on the victim of the armed robbery in his judgement noting:
There is no victim impact statement here. Armed robbery is an inherently serious crime. It was obviously a frightening offence. It was in company and there was a weapon. Of course it would have an impact upon the innocent victim who was just minding his own business whilst you were doing precisely the opposite. There is no material before me as to any sizeable impact so I cannot find that to be so.[32]
[32] G5 at p.37, [14]
The Tribunal also takes into account that the value of the goods stolen in the armed robbery (a mobile phone and airpods) and in the robbery of the 15 year old boy (a mobile phone and wallet) was not high. There is no indication that the Applicant’s other theft offences involved the theft of property of high value.
Having regard to all of these matters the Tribunal assesses the Applicant’s prior criminal conduct as serious, although not at the higher end of seriousness.
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
Clause 8.1.2(2) of Part 2 of Direction 99 relevantly states that in assessing the risk that may be posed by a non-citizen to the Australian community, the decision-maker must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non- citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)…whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and there are strong or compassionate reasons for granting a short stay visa.
Nature of the Harm
Should the Applicant engage in further criminal or other serious conduct of the kind he has committed previously it can be expected that he will expose members of the community to the risk of theft of their personal property and the infliction of distress and angst resulting from the interference with their property rights.
Likelihood of Reoffending
The Applicant asserts that his insight and remorse into his offending suggest that the risk of harm to the community in the future is low. He says he has undertaken significant steps towards his rehabilitation since his offending, including sobriety and abstinence from drugs and the commencement of antidepressant medication, and he has support in the community which will enable him to undertake further rehabilitation.
In assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, consideration must be given to paragraph 8.1.2(1), which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The decision-maker must have regard, cumulatively, to:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non- citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
In assessing the risk of reoffending, the Tribunal is mindful of the comments of the Full Court in CKL21 v Minister for Home Affairs[33] that:
…while the future is not predictable, it is possible to assess the degree of likelihood of an event occurring in the future based on past and current circumstances. On occasions, the task of predicting future events in curial or administrative decision-making has been described as involving speculation. That is an unfortunate description, as the word speculation is typically used as a synonym for conjecture, which is the formation of an opinion without sufficient evidence for proof. In curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future requires more than mere speculation. It must be based on a logical process of reasoning based on the known facts. A conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk. Further … a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
Nature of the Offending
[33] (2022) 293 FCR 634 at [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599 at 574-575.
It is important to put the Applicant’s offending in context. First the offending was concentrated in a short period of time between August 2019 and July 2020 when the Applicant was around 20 years old. He came to Australia as an orphan from a background of childhood trauma and displacement and was described by Dr Anderson as being of below average cognitive ability. At the time of his offending he was a heavy user of drugs and alcohol and his sisters each gave evidence that he was under the influence of a bad peer group. In assessing the risk that the Applicant will reoffend it is important to bear these factors in mind.
Psychological Assessment
The Applicant’s early life was marked by violence, trauma and displacement including the death of his father and mother. The Tribunal accepts that these experiences have adversely impacted the Applicant’s psychological wellbeing. The Court of Appeal recognised this in reducing his sentence for armed robbery.[34]
[34] G6 at p.75 at [28].
However, the Applicant did not demonstrate a clear understanding of his own mental health issues. He denied in his oral evidence that he suffered from any mental health issues, save for talking in his sleep. In his Personal Circumstances Form, he declared he had no medical or psychological conditions.[35] This contradicts his written statement that he had been diagnosed with depression, substance abuse disorders and complex trauma because of the experiences he has had in his life, especially the things that happened to him in Africa.[36]
[35] G15 at p.185, Q 12.
[36] G16 at p.194, [27].
The Applicant’s medical records while in prison between October 2020 and August 2021[37] confirm that he was regularly taking prescribed antidepressant medication to treat his anxiety and insomnia. Initially he was prescribed Paroxetine which was changed to Mirtazapine and the dosage increased to 30 mg in April 2021. The reports of psychiatric nurses who examined the Applicant during that period note that his presentation was generally settled and stable and he was at a low risk of self-harm, although they note that the Applicant reported hearing voices telling him to hurt people. The Applicant acknowledged that he had reported hearing voices but said that this cleared up once he started taking antidepressant medication.
[37] TB1 at pp.-15.
Dr Anderson opined in her report of 7 December 2020 that the Applicant had “clinically significant levels of depressive symptoms and symptoms associated with Post-traumatic Stress Disorder (PTSD)” when she assessed him in November 2020.[38]
[38] G17 at p.199, [5.2.3].
The Applicant claimed in his evidence that his offending always took place when he was heavily affected by alcohol and drugs. Dr Anderson reported that he told her that he began drinking socially at 15 and by 18 was sometimes consuming 24 cans of beer and two bottles of spirits per day.[39] He claims to have been using cannabis heavily at the time he was arrested. Dr Anderson observed the Applicant shows little insight into the reasons why he was drinking so heavily, aside from saying he was trying to “block stuff out”.[40] Dr Anderson diagnosed the Applicant with complex trauma, alcohol use disorder, cannabis use disorder, and sedative, hypnotic or anxiolytic use disorder.[41]
[39] G17 p.201, [5.5.2].
[40] G17 p.201, [5.5.3].
[41] G17 p.2015, [7.2.1-7.2.2].
Dr Anderson noted in her oral evidence that at the time of her report in 2020 the Applicant was in the early stages of remission from drug and alcohol abuse and given his abstinence while in prison and detention he could be now regarded as in sustained remission in a controlled environment.
The Tribunal is satisfied on the basis of Dr Anderson’s diagnosis that the Applicant has significant symptoms of depression and complex PTSD and has an alcohol and substance use disorder which is currently in sustained remission in a controlled environment.
Rehabilitation
It was the assessment of the County Court and the Court of Appeal that the Applicant had reasonable prospects for rehabilitation at the time of his sentencing in 2021. Justice Tinney noted in his sentencing remarks that the Applicant had quite realistic prospects of rehabilitation.[42] The Court of Appeal noted:
It is also important that the applicant was youthful when he first offended. Despite his appalling background, he had lived several years in this country without breaching the law, until he became involved in a relatively confined (albeit serious) burst of criminal activity. His youth and previous good character required that his prospects of rehabilitation be given significant weight in the exercise of the sentencing discretion.[43]
[42] G5 at p.48, [64].
[43] G6 at p.75, [29].
In her oral evidence Dr Anderson said:
(a)given his abstinence from alcohol and drugs while in prison and detention the Applicant could be now regarded as in sustained remission in a controlled environment and this would dampen his dependence, although she had not undertaken an assessment of his current condition;
(b)the Applicant was susceptible to impressionable peers and easily influenced and this could be both negative or positive depending on the values of the peer group; and
(c)there are positive indications for the Applicant’s rehabilitation, including that he has insight into the cause of his offending, he does not have antisocial attitudes and he has strong family connections.
Dr Anderson commented that the prospect of avoiding reoffending would be improved by the Applicant receiving treatment for his alcohol and drug use, by getting positive peer group support and by psychological counselling under a mental health plan (available to him under Medibank).
In her report of 7 December 2020 Dr Anderson recommended actions the Applicant could take to reduce his risk of reoffending[44]. They included:
(a)intensive alcohol and drug counselling;
(b)support services and psychological intervention to address his early childhood experiences; and
(c)referral to a neuropsychological assessment to better understand his current lower level of cognitive functioning.
[44] G17 at p.208
The Applicant claims that he has abstained from alcohol and drug use while incarcerated and that he completed a drug and alcohol rehabilitation course while in prison.[45] In answer to a question on his Personal Circumstances Form dated 22 May 2023 whether he had completed any courses or programs that will help him avoid further reoffending the Applicant answered “No”.[46] Otherwise the Applicant has not taken any steps to address his underlying psychological issues and in particular his substance abuse disorders. He has not taken any of the three steps recommended by Dr Anderson in her report of 7 December 2020.
[45] G16 at p.193 at [19].
[46] G15 at p.178.
In giving his evidence the Applicant showed little understanding of his own psychological condition and Dr Anderson’s diagnosis and what was involved in psychological treatment and how he could access appropriate support. The Applicant’s low cognitive ability combined with his limited education and reading skills indicate that there is a significant risk that if he is released into the community he will not access appropriate mental health support to address his underlying psychological condition and his susceptibility to substance abuse.
In addition there remains a risk that his susceptibility to peer group influence will again lead him into offending if he falls in with the wrong group. The evidence did not disclose any concrete plans to align the Applicant with positive peer influences if he is released. The concerns expressed by Jamila about his return to the flat in Collingwood raises the possibility that he will again come within the influence of bad people.
Remorse
The Applicant has expressed remorse for his offending and the impact on his victims.[47] The Tribunal accepts that he is genuine in his feelings of remorse. He plead guilty to all of the charges for which he was convicted and in giving his evidence to the Tribunal he accepted responsibility for his actions. The Tribunal does not draw an inference that he lacks remorse from the Applicant’s evidence that he did not remember much of his offending. The Tribunal notes that he was intoxicated at the time of his offences and his recollection in the witness box was further impaired by his poor cognitive ability under stress as explained by Dr Anderson. Importantly, when put to him directly, the Applicant was forthright in accepting responsibility for his actions and he conveyed a genuine regret for his conduct and the effect on his victims.
Deterrence of prison and deportation
[47] G14 and G16.

The Applicant served three terms of imprisonment between 2019 and 2021. Some of his offences were committed while on bail. He confirmed in his oral evidence that on at least one occasion he reoffended shortly after being released from custody. He was not deterred from reoffending at the time by the threat of prison.
In addition, he was involved in breaches of discipline while in prison. His prison record includes two Governor’s disciplinary hearings. In December 2019 he was found guilty of being involved in a fight with several other prisoners and fined $50 and 14 days lost privileges.[48] In October 2020 he plead guilty to a breach of discipline associated with a minor assault on another prisoner and was penalised 14 days lost privileges.[49]
[48] TB1 at p.24.
[49] TB1 at p.31.
The Applicant now says his experience of incarceration and the threat of deportation or further detention will deter him from further offending. Having observed the Applicant give his evidence the Tribunal is satisfied that the Applicant now realises the seriousness of the consequences that would befall him if he were to reoffend and that this is likely to be a strong factor in deterring him from further criminal conduct if released into the community.
Protective Factors
The Applicant has support available to him to establish himself in the community but it is limited.
The Applicant has the support of his two sisters Fatuma and Jamila. While the Tribunal accepts that the Applicant has their love and support there are limitations on their ability to provide effective support.
Jamila, the older sister, gave evidence of the difficulties she has had in controlling the Applicant’s behaviour in the past once he became an adult. She described the Applicant as being meek and having fallen heavily under the influence of a bad group of young men who bullied and harassed him. She described how she had tried to break the influence this group held over the Applicant including taking the Applicant to stay with an aunt in Adelaide on two occasions. At one stage she contemplated taking the Applicant back to Kenya to give him some time out to learn English and to reconsider his life, but this did not eventuate. She indicated in her evidence that she may consider this option again if the Applicant is now released into the community.
The Tribunal notes the difficulties Jamila has had in the past in dealing with the Applicant’s behaviour and notes further that she now has six young children of her own to care for.
Fatuma gave evidence that she would provide the Applicant with a home if he is released into the community and confirmed that she lives in a two bedroom apartment in the Housing Commission high rise in Collingwood with her partner and young child. She confirmed that her partner had not met the Applicant. These arrangements do not appear to be an ideal basis for the Applicant to begin re-establishing himself in the community. However, the Tribunal is satisfied that the strength of the bond between the Applicant and his sister Fatuma would more than offset the disadvantages of the proposed living arrangements. On the other hand, Jamila stated in her evidence that she did not like the idea of the Applicant living in Collingwood because it would risk him coming into contact with the bad people he had been involved with in the past.
The Applicant has not identified any members of the community beyond his family who could provide a strong level of support for him.
In addition, the Applicant has virtually no employment history, has no formal qualifications beyond a certificate in traffic management and incomplete carpentry studies and he has an extensive criminal record for theft. He also has told Dr Anderson that he cannot read and may have a learning disability.[50] Dr Anderson assessed the Applicant’s cognitive ability as below average and borderline disabled. Jamila described him as “not that smart and he is meek”.[51] Each of these factors is likely to add to his difficulties in finding secure employment if released.
[50] G17 at p./200, [5.4.1].
[51] G20 at p.216 at [18].
Conclusion
The Applicant is a young man who presented as genuinely remorseful for his actions and who understands that he faces a bleak future if he offends again after being released. The Tribunal is satisfied that he is not a violent person but he has a criminal record involving serious crimes. He has some support in the community but it is limited. He has largely untreated mental health and substance abuse issues and limited prospects for future employment. He has had time to reflect while in prison and detention and has had some success in abstaining from drug and alcohol use for several years although this is untested in the community. He is not antisocial and has adopted some prosocial interests while in detention including the active practice of his religion and commitment to physical fitness. However, he is impressionable and susceptible to peer group pressure and his future appears to depend significantly on whether he finds friendship with a positive group or again falls under the influence of the wrong crowd.
Having regard to these factors the Tribunal is satisfied that the Applicant presents a moderate risk of committing further crimes if released into the community.
The Tribunal notes cl 8.1.2(1) and the view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases and that some conduct, and the harm that would be caused if it were repeated, is so serious that any risk that it may be repeated may be unacceptable. The Tribunal is not satisfied that the Applicant’s past offending is so serious that the moderate risk of him committing similar crimes is unacceptable.
The protection of the Australian community is a primary consideration under Direction 99 and weighs in favour of not revoking the cancellation of the Applicant’s Visa. While a repetition of the Applicant’s offending could potentially involve harm to the Australian community in the form of a risk of theft of their personal property and the infliction of distress and angst resulting from the interference with their property rights, the risk of that occurring is moderate and accordingly the Tribunal gives this consideration moderate weight.
Family Violence committed by the Applicant
Clause 8.2(1) of Direction 99 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence that the Applicant has engaged in family violence and this consideration is not relevant to him.
The Strength, Nature and Duration of Ties to Australia
Clause 8.3 of Direction 99 requires that decision-makers:
(1)…must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
Impact on the Applicant’s Family Members
The Applicant has no partner or children of his own. The Applicant’s family in Australia is limited to his two sisters Fatuma and Jamila and their immediate families who are all Australian citizens. Jamila also stated in her evidence that she has an aunt in Adelaide with whom the Applicant had briefly stayed but the Applicant gave no evidence about his relationship with the aunt or her two children.
The Applicant has a very close relationship with his sisters who have looked after each other over the years since their parents were killed in Somalia. Jamila, as the older sister, has assumed a quasi-parental role. She came to Australia before the Applicant and Fatuma went to Kenya to live and provided financial support to the Applicant and Fatuma while they were in the refugee camp in Kenya. She later organised for them to live with a family in Nairobi. Jamila sponsored the Applicant and Fatuma to come to Australia and then cared for them on their arrival and later arranged housing for them. Fatuma, when she was in her early teens looked after the Applicant while they were in the refugee camp and later in Nairobi and has lived with the Applicant since arrival in Australia.
Jamila was visibly emotional in giving evidence that she would be devastated if the Applicant was sent back to Somalia or placed in indefinite detention and that her children would be saddened to lose the opportunity to have their uncle as part of their lives growing up. Fatuma said that the Applicant was much loved by Jamila’s children. Fatuma said she would be upset and concerned if the Applicant were deported to Somalia or placed in indefinite detention and that she wanted him to have a relationship with her son Zain.
The Applicant has not claimed any strong relationships with persons outside his family and he has not provided any evidence of any involvement in community organisations or activities beyond his involvement with a soccer club while at school. He has not undertaken paid employment beyond some casual work at the supermarket when he was at school. He was on Centrelink payments prior to his most recent imprisonment.[52]
[52] TB1 at p.19 and G5 at p.41, [25].
When completing a Personal Circumstances Form[53] on 23 May 2023, the Applicant wrote “no” when asked what contributions he had made to the community, and when asked whether any hardship would be caused to the Australian community by his removal, he wrote “nothing”.
[53] G15 at p.185, Q11.
The Applicant has lived in Australia for over 8 years. He was aged 16 when he arrived in Australia having spent a significant part of his formative years outside Australia. He was first convicted in December 2020 in relation to offences committed in August 2019.[54] In the 8 years he has lived in Australia the Applicant has spent a total of 21 months in prison and has been in prison and immigration detention since July 2020.[55]
[54] G3.
[55] G7 at p.116.
Under cl 8.3(4) the length of time the Applicant has resided in Australia is a relevant consideration but the Applicant lived outside Australia for most of his formative years and he began offending reasonably soon after arriving in Australia. There is little evidence that he has made a positive contribution to the Australian community. Accordingly, the Tribunal gives limited weight to the time he has spent in Australia.
In final submissions the Applicant contended that this consideration warrants more than minimal weight.
The Applicant identifies with Australia and has strong ties with his family who are Australian citizens. This demonstrate that he has a connection with Australia but those ties are limited in their strength, nature and duration. Under Direction 99, the strength, nature and duration of ties to Australia is a primary consideration, and this represents a change in policy from that expressed in the previous Direction 90.[56] However, even though it is a primary consideration, the Tribunal affords it only moderate weight in the Applicant’s case in favour of revocation.
[56] NHBK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 364 at [125].
Best Interests of Minor Children affected by the Decision
Clause 8.4(1) requires that decision-makers must make a determination about whether non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision.[57]
[57] This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made: cl 8.4(2) of Direction 99.
The Applicant has no children of his own but has identified the following children as minor children whose best interests require consideration:[58]
a.his six nieces and nephews, the children of his sister Jamila, the eldest of whom is around 13 years of age; and
b.his sister Fatuma’s son, Zain, who was born in November 2021.
[58] The Applicant’s representative noted the reference to the Adelaide aunt’s children in Jamila’s evidence but did not press for a consideration of their interests under Clause 8.4(1).
The best interests of each child must be given individual consideration to the extent that their interests differ.[59] However, there is insufficient evidence before the Tribunal to support a conclusion that there are differing interests between the children nominated to justify giving them separate consideration.
[59] Clause 8.4(3) of Direction 99.
The Applicant said in his written statement that he has a good relationship with his nephews and nieces, but he does not speak to them much because they are younger than him and its difficult from inside a detention centre. He also said that he would like to have a relationship with Zain as well but acknowledged that he has had no actual contact with the child since his birth due to his incarceration.
In considering the best interests of the child, cl 8.4(4) requires specific factors to be considered. The consideration of the factors relevant in this case are set out below:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Jamila gave evidence that the Applicant had regular contact with five of her children before he went into custody in July 2020. At this time he played soccer and took the children to the park. The sixth child was born after he went to prison. Since being incarcerated the Applicant has had very little actual contact with any of her six children. He is not likely to play any parental role in their future as the children have other persons who already fulfil a parental role for them. The views of the children are not known but Jamila stated that he was a good uncle to them.
There is no evidence that paragraphs 8.4(4)(g) or (h) are relevant in the Applicant’s case.
Notwithstanding the limited contact the Applicant has had with the children he has maintained a close relationship with his sisters Fatuma and Jamila and he is the children’s only surviving maternal uncle. Given the unfortunate death of their parents and separation from the other sisters in Kenya the Applicant represents an important cultural and family link for the children of Jamila and Fatuma as they grow.
While there would be some opportunity for the children to develop and maintain a relationship with the Applicant if he were deported to Somalia or kept in indefinite detention that opportunity would be greatly enhanced if the Applicant was released into the Australian community.
On balance, the Tribunal is satisfied that it would be in the best interests of the Applicant’s seven nieces and nephews for the Applicant to remain in Australia. The Tribunal adds for completeness that revocation is also likely to favour the interest of the children of the aunt in Adelaide who may wish at some future time to develop a relationship with the Applicant and their interests are also included in the overall assessment of this consideration.
The best interests of minor children affected by the decision is a primary consideration under Direction 99 and weighs in favour of revoking the cancellation of the Applicant’s Visa. However, given that the Applicant has no parental role and has had limited contact with any of the children to date the Tribunal gives this consideration only moderate weight.
Expectations of the Australian Community
Clause 8.5 of Part 2 of Direction 99 provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

The majority of the Full Court of the Federal Court has explained that cl 11.3 of the former Direction 79 which mirrors the wording of cl 8.5(1) and (2):
…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasizes that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[60]
[60] FYBR v Minister for Home Affairs (2019) 272 FCR 454, [75]-[76].
As to the weight to be given to this consideration, considerable care is required in determining the proper weight and the Tribunal must carefully consider the facts and circumstances of the case to determine whether it is appropriate.[61]
[61] Ibid at [71]-[72] (Charlesworth J), [97]-[98] (Stewart J).
Clause 8.5(2) of the Direction provides that refusal 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 be granted or continue to hold a visa. The Applicant’s offences are not in this category.
The Tribunal is mindful that the Applicant was a relatively young man at the time of his offending and that he came to Australia as an orphan after a difficult early life of displacement and exposure to violence. He has low cognitive ability and has underlying mental health issues and is prone to substance abuse. He committed his offences under the heavy influence of drugs and alcohol. While he enjoyed the love and support of his sisters and their family he made poor choices as an immature young man to associate with the wrong people and to engage in heavy drug and alcohol use. This led to his criminal conduct. He committed multiple crimes but his offending was confined to a brief period of less than one year. The offending was serious but did not involve the Applicant in any actual violence personally. These factors go some way to moderating the expectations of the Australian community and the weight that should be given to this consideration.
Having regard to these circumstances the Tribunal is satisfied that the expectation of the Australian community, a primary consideration, should be given only moderate weight in favour of not revoking the cancellation of the Applicant’s Visa in the overall assessment of all the considerations.
OTHER CONSIDERATIONS – CLAUSE 9 OF PART 2
Legal Consequences of the Decision
Clause 9.1(1) requires decision-makers to be:
…mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
If the Tribunal were to affirm the Reviewable Decision the consequences for the Applicant are:
(a)he would be liable to immediate removal from Australia to Somalia pursuant to s 198 of the Act; and
(b)he would have the option to apply for a protection visa.
The Applicant asserts that he is a person to whom Australia has non-refoulement obligations in respect of his removal to Somalia[62] and that it would be a breach of Australia’s international obligations for him to be forcibly removed to that country.
[62] A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
If the Applicant decided not to apply for a protection visa, which seems highly unlikely,[63] he would be liable for removal from Australia under s 198 irrespective of whether Australia owes him non-refoulement obligations.
[63] The Applicant’s counsel conceded in submissions that the Applicant would be advised to apply for a protection visa and the Respondent argued that the Tribunal should assume as a fact that an application would be made.
It seems to the Tribunal much more likely, given the Applicant’s concerns about a return to Somalia that he would apply for a protection visa if he is unsuccessful in these proceedings. Pending consideration of his application for a protection visa he would likely be held in immigration detention for a considerable time while the application is determined.
While it is open to the Applicant to raise international non-refoulement obligations, cl 9.1.2(2) of Direction 99 makes it clear that:
… it is not necessary 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 and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
The majority in Plaintiff M1/2021 v Minister for Home Affairs[64] explained that where a decision-maker defers assessment of whether non-refoulement obligations are owed to permit the applicant to apply under the protection visa procedures, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon in support of there being "another reason" why the cancellation decision should be revoked.
[64] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [39] citing various Full Federal Court authorities including DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636 at 681 [185] and Omar [2019] FCAFC 188; (2019) 272 FCR 589 at 607 [39].
The Applicant gave evidence that he could not return to Somalia because of the risk of being killed due to ongoing tribal violence and because he would be targeted for robbery as a person who had lived in a foreign country and would be assumed to have money. He also said there was a famine in Somalia and that he had no family support, no prospect of getting a job and had nowhere to live.[65]
[65] G16 at p.195 [34]-[41].
The Tribunal accepts that the Applicant’s concerns about the risk of violence in Somalia is justified. The DFAT Country Information for Somalia states:
The security situation in Somalia is highly volatile and security incidents and crime are a common feature of everyday life. Somalia is ranked first of 178 countries on the 2016 Fragile States Index and seventh on the 2016 Global Terrorism Index. Inter-communal violence is the major destabilising factor in Somalia, including armed conflict between clans or warlords. Other factors include: protracted conflict, severe humanitarian conditions, widespread corruption, piracy, border disputes with Ethiopia and Kenya, and the presence of al-Shabaab and other Islamist groups (including those linked to ISIL–the Islamic State of Iraq and the Levant aka Daesh). All contribute to an unstable and unpredictable security environment…….Due to high rates of poverty and widespread impunity, crime, including violent robbery, kidnapping and personal violence is a serious issue, particularly in Mogadishu…..Extra-judicial killings are common in Somalia and are perpetrated by all parties, including government forces, armed militia and al-Shabaab[66]
[66] Exhibit A5 at p.189 and 198.
Whether or not those risks would engage Australia’s non-refoulement obligations in respect of the Applicant is a matter which is best determined under the process for determining protection visa applications and the Tribunal will proceed on the basis that if and when the Applicant applies for a protection visa any protection claims he has will be assessed.
Broadly speaking there are two aspects to be satisfied for the grant of a protection visa under s 36 of the Act. First, under s 36(1C) the Applicant must not be a person whom the Minister considers, on reasonable grounds, is a danger to the community (having been convicted of a particularly serious crime). Secondly, the Applicant must be a person to whom Australia has protection obligations as stated in s 36(2), resulting in a protection finding (as defined in s 197C of the Act).
If a protection finding is made in relation to the Applicant his protection visa application could be refused for failure to meet the criterion under s 36(1C). In that event s 197C(3) of the Act provides that s 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if a protection finding has been made for the non-citizen in respect to that country. The Applicant would then:
(a)continue to be an unlawful non-citizen and liable to remain in indefinite detention; and
(b)be prevented by s 48A of the Act from making a further application for a protection visa while he is in the migration zone and from applying for any other class of visa except a Bridging R (Class WR) visa.
The Tribunal notes the Respondent’s preference for the term ‘indeterminate’ detention rather than indefinite. Leaving aside such semantic differences, in practical terms there are only four ways in which such detention could be brought to an end:
(a)circumstances may change so that the risks to the Applicant are removed or diminished to the point where he can be deported to Somalia without infringing Australia’s non-refoulement obligations;
(b)the Applicant could choose to relocate to Somalia voluntarily;
(c)the Applicant may be offered the opportunity to be resettled in a third country; or
(d)the Minister may act personally under s 48B to determine that s 48A does not apply and allow a further application for a Protection Visa, or the Minister may exercise a non-compellable power in ss 195A or 197AB to allow the Applicant to remain in Australia otherwise than in detention.
There is no evidence that there are any realistic prospects of finding another country willing to receive the Applicant or of the Minister’s personal discretion options being engaged. The Tribunal accepts that it would be irrational for the Minister to respond by exercising the personal discretion,[67] and is satisfied that:[68]
…the applicant is entitled to have this application determined on the hypothesis that he will be indefinitely detained and that any question of a visa under s 195A is, at best, a matter of speculation. There is no foundation for any assumption that the Minister will grant any relevant visa.
[67] See EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [130]–[131], per Perry J.
[68] NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38, at [4], per Allsop CJ and Katzmann J.
A decision by a detainee who has the benefit of a protection finding to voluntarily relocate, if motivated by distress produced by the prospect of indefinite detention, can be regarded as a form of forced relocation and contrary to Australia’s non-refoulement obligations.[69]
[69] XDJD v Minister for Immigration and Border Protection (Migration) [2021] AATA 2882 cited in 1901883 (Refugee) [2021] AATA 3216.
Thus, if the cancellation of the Applicant’s Visa is not revoked and, as is most likely, he applies for a protection visa he will either be granted a protection visa and remain in Australia or be refused. If he is refused a protection visa without a protection finding being made the issue of non-refoulement should not arise for his removal to Somalia. If a protection finding is made but the protection visa is refused the Applicant will be held in immigration detention for an indefinite period.
Considering all of the possibilities, the Tribunal is satisfied that the most likely outcome of a decision to not revoke the cancellation of the Applicant’s Visa is indefinite detention. A less likely outcome is that he will be returned to Somalia and be exposed to the significant risks and impediments discussed under paragraphs [153]-[160] below in relation to cl 9.2 of the Direction 99.
Indefinite detention would deprive the Applicant of his most basic freedoms and impose on him in effect a form of punishment reserved for the most serious criminal conduct. As the Tribunal has noted:
It is a very strong thing for a decision-maker, including this Tribunal, to decide that the best course is to detain an applicant indefinitely. It is the kind of thing that would ordinarily only be open to a judge sentencing an offender for a crime of great seriousness, such as murder. In a case where the person committed to indefinite detention has already been punished, such a direction will have some or most of the hallmarks of double punishment.[70]
[70] SYLN and Minister for Home Affairs (Migration) (2018) ALD 186 at [72].
It can also be anticipated that indefinite detention will be very detrimental to the Applicant’s wellbeing. Amnesty International reports that the psychological impact of indefinite detention is irrefutable and that reports of hunger strikes, suicide attempts, riots and protests are symptomatic of the complete disempowerment and desperation of people who are detained.[71] Dr Anderson opined in her oral evidence that the lack of finality and uncertainty associated with indefinite detention would likely produce in the Applicant an experienced trauma response resulting in a feeling of hopelessness and depressed mood.
[71] Exhibit A4 at p.112.
The Respondent accepts that remaining in immigration detention for an indefinite period is likely to adversely affect the Applicant’s mental and physical health, and that significant weight should be assigned to this ‘other consideration’ in favour of a finding that the decision under review should be set aside.
The Tribunal is satisfied that even though it is not a primary consideration under Direction 99, the legal consequences of a decision not to revoke the cancellation of the Visa weighs heavily in favour of revocation, although it must be weighed with other considerations and may be outweighed by them.[72]
[72] See for example QDWQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 226; and JYVT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1135.
Extent of impediments if removed
Clause 9.2(1) of Part 2 requires that:
Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant asserts that he is likely to face substantial impediments in establishing himself and maintaining basic living standards in Somalia. The Respondent accepts that the Applicant would face some practical, financial and emotional hardship in Somalia and that this weighs in favour of revocation.
The DFAT Country Report for Somalia confirms that the Applicant would face serious risks to his personal safety upon return.[73]
[73] See [128] above.
Although the Applicant speaks Somali, albeit with an accent, he is not familiar with the country having departed Somalia to live as a refugee in Kenya when he was very young. He has no immediate family in Somalia nor any extended family with whom he is familiar. He has no other contacts or connections with the country.
Somalia is a poor country which offers limited employment opportunities and the Applicant has very limited skills and work experience. The DFAT Country Report[74] notes:
In addition to decades of sustained and widespread conflict and political instability, Somalia is also prone to severe drought and floods which has worsened the effects of the long-running humanitarian situation. Famines killed 220,000 Somalis in 1992 and 260,000 in 2010-12. The risk of famine is constant, including as a result of the current 2017 drought. Over a million Somalis are internally displaced or have fled the country due to conflict and drought. The internally displaced population is around 1.1 million and over 300,000 Somali refugees live in the Dadaab refugee camp in neighbouring Kenya…..
After 25 years of conflict and political instability, Somalia’s economy is fragile. Somalia is the fifth poorest country in the world, with income per capita estimated at USD435 and a GDP of around USD5.9 billion. Half the population lives below the poverty line (as defined by the World Bank; less than USD$1.90 per day)….
Formal unemployment in Somalia is high; the most recent overall unemployment rate (from 2012) was 54 per cent. According to the 2015 UNDP Human Development Report, the youth unemployment rate is 67 per cent and there is limited formal female labour participation (around 37 per cent of females over 15 years of age are employed, based on World Bank data).
[74] Exhibit A5 at p.185 and 187.
The Applicant has been diagnosed with depression and complex PTSD and is prone to substance abuse. Dr Anderson stated in her oral evidence that she has a significant concern that the Applicant’s mental health will deteriorate if he returned to Somalia. She said it was almost a certainty that his hypervigilance would escalate astronomically. The DFAT Country Report[75] states that:
In practice, there is no functioning national health system and access to healthcare services is severely limited. According to UNICEF, only 45 per cent of the population has access to clean water, and only 25 per cent has access to adequate sanitation. The International Committee of the Red Cross (ICRC) provides the majority of the health services in south-central Somalia, including in al-Shabaab-controlled areas.
[75] Ibid at p.186.
The US State Department Country Report[76] notes in relation to mental health:
Without a public health infrastructure, few services existed to provide support or education for persons with mental disabilities. It was common for such persons to be chained to a tree or restrained within their homes.
[76] Exhibit A6 at p.241.
Having regard to these matters the Tribunal is satisfied that the Applicant would face substantial impediments in establishing himself and maintaining basic living standards if he were removed to Somalia. This consideration favours a decision to revoke the cancellation of the Applicant’s Visa. However, the Tribunal is satisfied that the possibility that the Applicant will be deported to Somalia is low given that he can apply for a protection visa and at least have a protection finding made in his favour. For this reason the consideration is given limited weight.
Impact on Victims

Clause 9.3(1) of Part 2 requires:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The relevant impact under cl 9.3 is the adverse impact likely to result from the non-citizen being granted a visa.[77]
[77] CGX20 v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (No 2) [2020] FCA 1842 [17]-[21], which considers the analogue consideration at 14.4 of Direction No 79.
The Tribunal does not have any evidence of the possible impact of its decision on the victims of the Applicant’s criminal behaviour, their families or other members of the Australian community who may be adversely impacted.
Accordingly, the Tribunal gives this consideration no weight.
Impact on Australian business interests
Clause 9.4(1) requires:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has no work history. He has undertaken a TAFE course in carpentry but did not complete it and he has done a traffic management course while in prison but there is no evidence that the Applicant possesses any special skills which could not be sourced in the general labour market.
There is no evidence that a decision not to grant the Applicant a Visa would compromise the delivery of a major project or important service in Australia, or that the removal of the Applicant from Australia would have any significant impact on Australian business interests otherwise.
Accordingly, the Tribunal gives this consideration no weight.
Other Considerations
Under cl 9(1) of Direction 99 the four listed ‘other considerations’ are not exhaustive.
The Applicant asserts that to hold the Applicant in detention will involve significant cost for the Australian community estimated to be $362,000 per year[78] and this is another factor in favour of revocation.
[78] Exhibit A7 at p.246.
The Tribunal makes no specific finding regarding the actual cost of holding a person in detention but accepts as a general proposition that to do so imposes a not insignificant financial burden on the community. The avoidance of this cost is a factor in favour of revocation given the likelihood that the Applicant may be indefinitely detained. However, such costs are part of the necessary cost of administering the migration system and the Tribunal gives it minimal weight.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[79] North ACJ elaborated on how to approach the exercise of the discretion under s 501CA(4)(b)(ii) of the Act:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[79] [2016] FCA 1116, [38].
A summary of the factors for and against revocation is set out below:
Factors against
There are two considerations under Direction 99 which weigh against revoking the cancellation of the Applicant’s Visa:
(a)The protection of the Australian community is a primary consideration. The Applicant’s prior offending was serious, although not at the high end of seriousness. A repetition of that conduct would involve harm to the Australian community in the form of a risk of theft of their personal property and the infliction of distress and angst resulting from the interference with their property rights. The risk of that occurring is moderate. Accordingly having regard to the seriousness of the conduct and the magnitude of the risk the Tribunal gives this consideration moderate weight.
(b)The expectation of the Australian community is that the Applicant, as a non-citizen, will obey Australian laws while in Australia. He has engaged in serious conduct in breach of this expectation. In those circumstances the Australian community, as a norm, expects the Government to not allow the Applicant to remain in Australia. This is also a primary consideration. However, having regard to all of the circumstances of the Applicant’s conduct, the Tribunal is satisfied that this consideration should be given only moderate weight in the overall assessment of all the considerations.
Factors in favour
There are five considerations which weigh in favour of revoking the cancellation of the Applicant’s Visa:
(a)The strength, nature and duration of ties to Australia is a primary consideration The Applicant identifies with Australia and has strong ties with his family who are Australian citizens. This demonstrate that he has a connection with Australia but those ties are limited in their strength, nature and duration. Because the ties are limited, the Tribunal affords it only moderate weight even though it is a primary consideration.
(b)It would be in the best interests of the Applicant’s seven nieces and nephews and the children of the aunt in Adelaide for the Applicant to remain in Australia. The interests of minor children is a primary consideration. However, as the Applicant has no parental role and has had limited contact with any of the children to date, the Tribunal gives this consideration only moderate weight.
(c)The Tribunal is satisfied that the legal consequences of a decision not to revoke the cancellation of the Visa, and especially the possibility of the Applicant remaining in immigration detention for an indefinite period, weighs heavily in favour of revocation, even though it is not a primary consideration.
(d)The Applicant would face substantial impediments in establishing himself and maintaining basic living standards if he were removed to Somalia. However, this consideration is given limited weight as the possibility that the Applicant will be deported to Somalia is low given that he can apply for a protection visa and at least have a protection finding made in his favour.
(e)Avoiding the cost of holding the Applicant in detention is a factor in favour of revocation but the Tribunal gives it minimal weight.
Conclusion
Clause 7 of Part 2 of Direction 99 provides guidance on how relevant considerations are to be assessed. It states that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations appropriate weight. This requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[80]
[80] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23].
In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in cl 5.2 of Direction 99 which provide the framework for decision making under s 501CA of the Act. Those principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Tribunal accepts that these principles reinforce the importance of the factors weighing in favour of not revoking the cancellation of the Applicant’s Visa. However, in weighing the factors against revocation the Tribunal notes:
a.the nature of the Applicant’s criminal conduct, although serious, is not of the kind specifically identified in cl 8.5(2) of Direction 99 and referred to in cl 5.2(6);
b.while theft offences are matters of serious character concern under cl 5.2(3), some allowance can be made in the Applicant’s case for the displacement and trauma he suffered as a young person and the role played by alcohol and drugs and the bad influence of his peers in his offending; and
c.some tolerance of the Applicant’s conduct can be afforded because the Applicant has lived in the Australian community for all of his adult life and came to the country at a relatively young age.
In weighing the factors in favour of revocation the Tribunal gives significant weight to the prospect that the Applicant will be subject to indefinite detention if the cancellation of his Visa is not revoked. The legal consequences of the decision is not a primary consideration under Direction 99 but the potential impact on the Applicant of prolonged detention, especially given his mental health issues and the displacement and trauma he has faced in his relatively young life, warrants a greater weight being given to that matter. The Tribunal also notes that two of the factors in favour of revocation, the best interests of children and the Applicant’s ties to Australia are primary considerations attracting moderate weight.
The factors against revocation are directed at the protection of the community and are primary considerations although for the reasons discussed the Tribunal gives then each moderate weight. This weighting acknowledges that the Applicant does present a risk of reoffending but it is not a high risk and the nature of his past offending, while serious, is not at the higher end of the scale. The Applicant’s offending was limited to a short period of time and essentially involved property offences for relatively modest financial amounts in which actual physical harm to the victims did not eventuate. That is, of course, not to say that similar conduct in the future might not result in a different outcome but the Applicant’s record to date does not demonstrate any actual physical violence by him personally.
Weighing up these factors the Tribunal is satisfied that the considerations in favour of revoking the cancellation of the Applicant’s Visa outweigh the considerations against revocation. Accordingly, the Tribunal is satisfied that under s 501CA(4)(b)(ii), there is another reason why the cancellation of the Applicant’s Visa should be revoked.
DECISION
The decision under review is set aside and in substitution the Tribunal decides that the statutory discretion under s 501CA(4) of the Migration Act 1958 (Cth) is to be exercised to revoke the cancellation of the Applicant’s Class AH Subclass 117 Orphan Relative (Permanent) visa.

I certify that the preceding 183 (one hundred and eighty-three) paragraphs are a true copy of the reasons for the decision herein of Member R. West

...............................[sgd].........................................
Associate
Dated: 3 November 2023

Date(s) of hearing: 23 and 24 October 2023

Counsel for the Applicant: Mr David Carolan

Solicitors for the Applicant: Refugee Legal

Advocate for the Respondent: Mr Christopher Orchard

Solicitors for the Respondent: Sparke Helmore Lawyers
APPENDIX A

Exhibit Document

ASFIC Applicant’s Statement of Issues, Facts and Contentions dated 6 October 2023

A2 Submission to Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability dated 7 May 2022

A3 Parliamentary Joint Committee on Human Rights dated 29 April 2021

A4 Amnesty International Report, “The impact of indefinite detention” dated 29 June 2005

A5 DFAT Country Information Report Somalia dated 13 June 2017

A6 US State Department Country Report on Human Rights Practices Somalia 2022 dated 20 March 2023

A7 Source Guide on the Cost of Australia’s Refugee and Asylum Policy dated 26 April 2022

TB1 Department of Justice and Community Safety summons documents received 5 October 2023

TB2 Victoria Police summons documents received 5 October 2023

TB3 VicRoads summons documents received 6 October 2023

TB4 Victoria Police summons documents received 16 October 2023

Date(s) of hearing:	23 and 24 October 2023
Counsel for the Applicant:	Mr David Carolan
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers

Exhibit	Document
ASFIC	Applicant’s Statement of Issues, Facts and Contentions dated 6 October 2023
A2	Submission to Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability dated 7 May 2022
A3	Parliamentary Joint Committee on Human Rights dated 29 April 2021
A4	Amnesty International Report, “The impact of indefinite detention” dated 29 June 2005
A5	DFAT Country Information Report Somalia dated 13 June 2017
A6	US State Department Country Report on Human Rights Practices Somalia 2022 dated 20 March 2023
A7	Source Guide on the Cost of Australia’s Refugee and Asylum Policy dated 26 April 2022
TB1	Department of Justice and Community Safety summons documents received 5 October 2023
TB2	Victoria Police summons documents received 5 October 2023
TB3	VicRoads summons documents received 6 October 2023
TB4	Victoria Police summons documents received 16 October 2023