LRMM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2731

LRMM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2731 (19 August 2022)
AppID:  LRMM and Minister for Immigration, Citizenship and Multicultural Affairs
MatterType:  Migration
CitationNumber:      New
Division:GENERAL DIVISION
File Number:          2021/0321
Re:LRMM
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:19 August 2022
Place:Melbourne

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – where applicant held Refugee (Class XB)(Subclass 200) visa – where visa cancelled mandatorily under provisions of Migration Act relating to substantial criminal record – where applicant sought revocation of mandatory cancellation – where delegate of Minister refused – where applicant sought review by Tribunal – where decision of Tribunal quashed and matter remitted for fresh consideration – is there another reason to revoke mandatory cancellation – threshold question – what is applicant’s country of citizenship – applicant entitled to citizenship of Ethiopia – ministerial Direction No. 90 – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of minor children in Australia – expectations of Australian community – international non-refoulement obligations – what is the country of reference – extent of impediments if removed – links to Australian community – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 33A
Migration Act 1958 (Cth), ss 36, 499, 500, 501, 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039
Plaintiff M/2021 v Minister for Home Affairs [2022] HCA 17
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Secondary Materials
Can’t Stay. Can’t Go. Refused asylum seekers who cannot be returned; Catherine Blenchard and Sarah Joy, Policy, Research and Advocacy, British Red Cross (2017) ISBN 978-0-900228-32-2
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature on 28 July 1951; 189 UNTS 137 (Entered into force 22 April 1954)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Ethiopian Nationality Law of 1930; UNHCR, last updated 7 July 2022 (accessed 8 July 2022)
The Constitution of Kenya, 2010 – kenyalaw.org.kl (accessed 8 July 2022)
Migration Act 1948 – direction under s 499 – Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 8 March 2021)
Somalia: Whether persons born in Somaliland and in the Ogaden region of Ethiopia are entitled to Somalia citizenship; citizenship status of women married to foreign nationals; requirements and procedures to acquire and reacquire Somali citizenship; Immigration and Refugee Board of Canada, 3 April 2018
REASONS FOR DECISION
Senior Member D. J. Morris
19 August 2022
BACKGROUND

The name of the Applicant in this matter is anonymised. He will be referred to as ‘LRMM’, and that anonym will be substituted where he is referred to in documents or oral evidence.
LRMM was born in 2001. He arrived in Australia in November 2012 and has lived here since that time. He migrated to Australia with his family. His father is Ethiopian, and his mother is Somalian. He has nine siblings. He held a Refugee (Class XB) (Subclass 200) visa until it was cancelled.
He has committed a large number of offences in Australia. Of special relevance to these reasons is a conviction in the District Court of Queensland for the offence of Robbery armed/in company/wounded/used personal violence. The offence occurred in November 2019 and the conviction was on 29 July 2020. LRMM was sentenced to four years’ imprisonment, to be suspended for four years after serving 10 months. On the same day, he was convicted of other offences, occurring around the same time as this first offence. That day, LRMM was convicted of the offence of Robbery Armed in company. The offence occurred on the previous day to the first named offence. For this offence LRMM was sentenced to three years’ imprisonment, to be suspended for four years after serving 10 months. That day he was further convicted of three charges for offending, which occurred three days after the first named offence: Common assault; Assaults occasioning actual bodily harm whilst armed/in company; and Stealing. For this last group of offences, LRMM was placed on probation for two years.
On the same date, the District Court sentenced him to two other counts of the offence of Stealing, and Unlawful use of motor vehicles, aircraft or vessels, for which he was placed on probation for two years; Failure to appear in accordance with undertaking (for which a conviction was recorded) and Driving without a licence, when suspended, for which he was sentenced to one month imprisonment and disqualified from holding a driver licence for three months.
On 10 August 2020, LRMM’s visa was cancelled by a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, acting under section 501(3A) of the Migration Act 1958 (‘the Act’), because the delegate was satisfied that LRMM had been sentenced to a term of imprisonment of 12 months or more and was, at that time, in full-time custody.
LRMM was invited to make representations to a different delegate of the Minister as to whether there was ‘another reason’ under section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the visa. He did so on 9 September 2020.
On 12 January 2021, the delegate decided not to revoke the cancellation of the visa. On 21 January 2021, LRMM applied to the Tribunal for review of that 12 January 2021 decision.
A hearing was held and the Tribunal (differently constituted) decided on 7 April 2021 to affirm the 12 January 2021 decision.
LRMM sought judicial review of the Tribunal’s decision. On 26 August 2021, the Federal Court of Australia issued orders quashing the decision and returning it to the Tribunal for hearing afresh (LRMM v Minister for Immigration, Citizenship, Migrant Services andMulticultural Affairs [2021] FCA 1039).
On 1 June 2022, a new Minister for Immigration, Citizenship and Multicultural Affairs was appointed to administer the Act, and that Minister becomes the Respondent in these proceedings.
HEARING
The hearing was held in two parts, on 9 and 10 May 2022 and then on 10 June 2022. The Applicant was represented by Ms Victoria Lenton of Lenton Migration Lawyers. Mr David McLaren of Minter Ellison represented the Respondent. LRMM gave evidence and was cross-examined. Mr JM and Ms SB, who are LRMM’s parents, also gave evidence, by electronic means as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’).
The reason the hearing was held in two parts is that the Respondent sought an adjournment on 10 May 2022 to consider how the decision of the Full Court of the Federal Court of Australia in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (‘Thornton’) might affect the Minister’s submissions about LRMM.
The Tribunal admitted into evidence the documents listed in the annexure to these reasons. In addition, the Applicant and the Respondent lodged Statements of Facts, Issues and Contentions (‘ASFIC’ and ‘RSFIC’, respectively), and the Respondent lodged a submission on the application of Thornton on 1 June 2022.
On 10 June 2022, at the conclusion of the hearing, the Tribunal gave leave for parties to lodge written closing submissions, after which it would reserve its decision.
On 16 June 2022, the Respondent lodged written closing submissions, and on 27 June 2022, the Applicant advised that no submissions would be lodged in reply.
LEGISLATIVE FRAMEWORK
What is the matter for the Tribunal to decide?
In reviewing a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act, the Tribunal is not reviewing the decision of the delegate. The Tribunal is making a fresh decision based on the law and the information before it. Both parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate when the original decision was made.
The Tribunal must evaluate the factors for and against revocation. North ACJ stated in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, (‘Gaspar’) at [38]:
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. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
The Tribunal, therefore, must decide two questions: (a) does LRMM fail the character test in the Act? If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that LRMM fails the character test, the second question is: (b) whether the cancellation of his visa should be revoked for “another reason.”
Threshold question – the Applicant’s citizenship
The evidence is that LRMM was born in a refugee camp in Kenya to an Ethiopian-born father and a Somalian mother. The parties submitted that the country of reference for LRMM is the Federal Democratic Republic of Ethiopia. Nonetheless, the Tribunal should satisfy for itself what is, or what is likely to be, the country of reference for LRMM.
Under section 33(1) of the AAT Act, the Tribunal has consulted the relevant nationality and citizenship legislation of Kenya, Somalia, and Ethiopia. Article 14.1 of The Constitution of Kenya, 2010 states:
A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.
There was no submission put to the Tribunal that either of LRMM’s parents had obtained Kenyan citizenship. Nor was it suggested in statements by either of the Applicant’s parents. Therefore, LRMM did not acquire citizenship by being born within the borders of Kenya.
The Immigration and Refugee Board of Canada, in a report dated 9 March 2018, recorded that Law No. 28 of 22 December 1962 on Somali Citizenship provides, inter alia, that any person whose father is a Somali citizen ‘shall be a Somali Citizen by operation of law’. A person may also apply for Somali citizenship by grant if he or she has resided in the Somali Republic for a period of at least seven years. Neither of these preconditions apply to LRMM.
A UNHCR report on Ethiopian nationality law notes that the Ethiopia Nationality Law of 1930, proclaimed on 24 July 1930 is ‘one of the few laws promulgated before the Italian invasion of Ethiopia...still effective’. This Law records that:
Any person born in Ethiopia or abroad, whose father or mother is Ethiopian, is an Ethiopian subject.
In his oral evidence, the Applicant’s father, Mr JM, confirmed that he was born in Ethiopia and is of the Oromo tribe. Mr JM said he left Ethiopia in 1990 ‘without anything’ and went to the refugee camp in Kenya, where he met Ms SB.
Finding on citizenship
The Tribunal concludes, based on this analysis, that on the evidence LRMM is (a) not entitled to citizenship of Kenya; (b) not entitled to citizenship of Somalia; and (c) entitled to citizenship of Ethiopia on the basis that his father was born in Ethiopia. Therefore, while LRMM is not a citizen of Ethiopia, the Tribunal finds that he has an entitlement to citizenship of that country.
The mandatory cancellation of the visa
Does the Applicant have a ‘substantial criminal record’?
As set out above, LRMM was sentenced to four years’ gaol on 29 July 2020. The ASFIC conceded (at Part IV) that the Applicant accepts he does not pass the character test under section 501(6)(a) of the Act, as he has been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c) of the Act).
Section 501(3A)(b) of the Act requires that the non-citizen must be serving a sentence of full-time imprisonment for an offence against a law of the Commonwealth, a State, or a Territory, at the time his or her visa was cancelled. The Tribunal is satisfied that LRMM was serving a sentence of full-time imprisonment in a custodial institution when his visa was cancelled on 10 August 2020 (GD, p 42).
Finding on the character test
The Tribunal finds that LRMM (a) does not pass the character test and (b) was serving a full-time prison sentence when his visa was cancelled. Therefore, the delegate must cancel the visa by operation of law.
Having made that finding, the second question for the Tribunal is whether there is ‘another reason’ for the mandatory cancellation to be revoked under section 501CA(4)(b)(ii) of the Act.
Direction under section 499 of the Act
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction.
On 8 March 2021, the then Minister made a direction under section 499, Direction No. 90 (‘the Direction’), which commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is “another reason” to revoke the mandatory cancellation. The Direction stipulates that some considerations must be taken into account, where they are relevant. However, it is important to keep in mind that the Tribunal’s task is not confined to the contents of the Direction. The Tribunal must consider any other factor in the circumstances of a particular case that may be relevant to the principles of the Act.
The Direction sets out what are called ‘primary considerations’ and ‘other considerations’. Paragraph 8 of Part 2 of the Direction lists the following as primary considerations in making a decision under section 501CA(4) of the Act:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia; and
(d)Expectations of the Australian community.
PRIMARY CONSIDERATIONS
Protection of the Australian community (paragraph 8.1)
The Direction states that the Tribunal should consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes (paragraph 8.1.1(a)(i)). There is no evidence that LRMM has committed any sexual crimes.
LRMM has amassed some 13 offences since he appeared before the Magistrates’ Court of Queensland in May 2019. He appeared before the Children’s Court of Queensland on three prior occasions, but the Respondent submitted that, because of the Full Court decision in Thornton, the Tribunal should not have regard to these matters. The Tribunal accepts that submission.
In response to this primary consideration directing a decision-maker to whether a person has committed violent crimes, the Tribunal finds that LRMM has. He has been convicted of three charges of Common Assault and Assaults occasioning bodily harm whilst armed/in company. The offence date for these four matters is listed in the National Criminal Police Check as 6 November 2019 (GD, p 33). In addition, LRMM was convicted, as mentioned above, of the office of Robbery armed/in company/wounded/used personal violence, with an offence date of 10 November 2019 (GD, p 32).
Paragraph 8.1.1(1)(a)(ii) provides that crimes of a violent nature against women or children are viewed very seriously by the Australian Government and the Australian community. There is no evidence before the Tribunal that LRMM has committed any crimes against children. There is also no evidence of any acts of family violence (paragraph 8.1.1(1)(a)(iii)).
In terms of crimes against women, one of the victims of an assault in November 2019 was a female. In this incident LRMM was not the principal but acted in the nature of an accessory.
The Tribunal must also consider the sentence imposed by the Court for categories of crimes which were not violent. The Tribunal notes that for the offence of Robbery armed in company, of which LRMM was convicted by the District Court of Queensland on 29 July 2020, he was sentenced to three years’ gaol, to be suspended for four years after serving 10 months. A custodial sentence is the most serious tool available to a judicial officer and the fact that the Court imposed this penalty is taken by the Tribunal as proof it was categorised by the Court as a serious offence.
Putting to one side his conduct before attaining the age of 18 years, LRMM’s offending as an adult has been relatively frequent. He has been before the Magistrates’ Court on two occasions, in May and October 2019. In July 2020, LRMM appeared before the District Court in relation to failing to appear in accordance with an undertaking he had given. On the same day, three charges transferred up from the Magistrates’ Court were dealt with relating to stealing and the unauthorised use of a motor vehicle. Separately, the District Court dealt with the other charges referred to above.
In relation to his offending dates, the criminal history check records offences committed by LRMM in April, August, September, October, and November 2019. The Applicant’s offending was in a concentrated period, but relatively regular over this period of some eight months.
The criminal activity of LRMM since becoming an adult has been serious, and his conduct both before and since achieving adulthood has been antisocial and inconsistent with a law-abiding member of the Australian community. The Tribunal notes that the Respondent submitted that while Thornton found that the Tribunal cannot take into account the fact of a conviction or the finding of guilt in relation to LRMM’s Court matters as a minor, a distinction may be drawn between crimes and conduct, because the Direction requires ‘other serious conduct’ to be taken into account. The Tribunal agrees with that submission, in terms of making an assessment of the flavour of LRMM’s broad pattern of behaviour, which may have drawn him to the notice of the law enforcement and judicial system. However, proven convictions axiomatically carry much more weight than serious ‘conduct’, so the Tribunal concentrates in its assessment on LRMM’s convictions as an adult.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The Direction requires the Tribunal to have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the non-citizen engaging in such conduct. The Tribunal must take into account information and evidence on the risk of LRMM re-offending and evidence of rehabilitation, giving weight to time in the community since his most recent offending.

The sentencing Judge addressed LRMM about the crimes of which he was convicted (GD, p 36). Her Honour said:
I do not have to talk to you very much about these events. They happened over four days, and I can see that at least the first two of them, you were with the same people. On the first occasion, you sensibly kept out of it, except for the fact that you were a bystander and aided by your presence. Unfortunately, by the time of the second incident, you are starting to hold a knife up to the person, and you put it to the person’s stomach. By the third incident, you were punching the complainant. You stabbed him twice in the right upper arm and punched him again in the head with a closed fist. So there was a rapid escalation in your behaviour.
The Court’s transcript records that LRMM interjected to agree with Her Honour. The Judge went on:
By this stage, you are starting to look like a danger to the public. I have read your parents’ letter, and I am prepared to accept that going into custody has pulled you up and given you time to think.
Her Honour accepted that LRMM had got in with a bad crowd, but also noted that these were serious offences, especially the armed robbery and wounding. The learned Judge also took into account LRMM’s plea of guilty and his age (18 at the time of sentencing).
In his oral evidence, LRMM was asked about his convictions for robbery in relation to incidents in November 2019. He responded that he was: “hanging around with friends and staying at a house (in a named Brisbane suburb), drinking and started doing crimes.”
When asked what sort of crimes, LRMM responded: “Started with robbery. Stealing money and phones. Then got into violence. I stabbed a guy in the arm because the girl couldn’t breathe.”
LRMM said he was staying overnight in a house. He said two or three other men and a young woman were also there. He said he stayed “a couple of nights” when he committed the crimes. LRMM was asked if that was when he took ‘ice’ for the first time. He responded: “I was really drunk at the time. I don’t remember much of it.”
He said he stole money to get more drinks and other things. He said he did not tell his lawyer at the time that he had taken ‘ice’ because his family were in touch with the lawyer, and he did not want to upset his mother or father. He said his parents are now aware of his drug-taking.
LRMM was asked what his plans were if he could stay in Australia. He said: “To live with my father. Get a job. Help with my disabled brother.”
LRMM was asked whether he thought he had a drug and alcohol problem. He responded: “Yes, but I am getting help with a drug and alcohol counsellor”. He was asked whether he was undertaking a course to address this and said: “I had my first phone call two days ago. If released, they have courses for me to do.”
When pressed on what kind of courses, LRMM said: “Sports like soccer; things to keep me busy.”
When asked whether he has any mental health problems, LRMM said he did not think so. Ms Lenton then noted that a counsellor from the Queensland Program of Assistance to Survivors of Trauma and Torture (‘QPASTT’) says he has Post-Traumatic Stress Disorder (‘PTSD’). LRMM said, “Yes, I’ve spoken to her about that”. The Applicant said that there was a drug and alcohol problem in the suburb where his parents live and where he grew up, and “If anything happens, I can give [the counsellor] a call.”
LRMM said that he wanted to get a warehouse job, welding or spray-painting. He said he did that sort of work in prison and has attained a ‘white card’. Ms Lenton asked him whether he had any connexions who would help him get employment. LRMM said: “I have family and friends who can help me get a job. I don’t want to hang around with the same people as before.”
Under cross-examination, LRMM agreed he had hung around with a bad crowd when younger. He said he met some of them at high school and others elsewhere. When asked by Mr McLaren why he described them as a ‘bad crowd’, LRMM responded: “They always want to do crimes, drinking and drugs. Break and enter, robberies, armed robberies.”
LRMM said he would be with this group, which he estimated to be around 10 people or more, and would drink alcohol and “smoke weed” and “sometimes go with them to break into houses.”
In answer to direct questions from the Tribunal, LRMM said he was not sure what year he left high school or how old he was when he left. He did not remember whether he left at the end of a school year or at another time.
LRMM said that, when he first came to Australia, his parents were living together. They have since separated. He said that when they separated, he and his brothers moved to a suburb with their father. He was still at school at that time. He said a carer used to drive him and his siblings about 30 minutes to school and back. He said the group he began to associate with were older; some he thought had finished school. They would drink alcohol together. LRMM said sometimes the older members of the group would pay for the alcohol; at other times they would break into houses and steal money to buy further supplies.
LRMM said he started smoking marijuana before leaving school. He would sometimes stay away from home overnight, at friends’ houses, sleeping on the couch. Mr McLaren asked what he would tell his parents. LRMM said he would tell them he was with school friends.
When he left school, aged about 15, LRMM was asked whether he got a job. He responded: “No. I did not get a job. I did a couple of crimes. Got done for crime. Did a Youth Justice programme, gardening and volunteering and stuff.”
When asked by the Tribunal whether he tried to get a job, LRMM said: “No. My English wasn’t that good, or my writing. I thought I wouldn’t get a job”. He said he was living with his father at this time, and his father was encouraging him to get a job.
LRMM said he received Youth Allowance. He prepared a resumé and would go every two or weeks to see a job provider. The provider was helping him prepare to apply for jobs.
Mr McLaren asked LRMM about a conviction for possessing tainted property. LRMM said he bought a car from someone. The car had stolen number plates on it. When asked whether he went to Court in relation to this, LRMM said, “I think so, I don’t remember”. He was charged for stealing number plates. When asked whether he stole the number plates, LRMM said, “No, I did not. I took the blame for it”. He accepted he was convicted of possessing tainted property.
LRMM was asked about a subsequent incident where he was driving a stolen car. He said: “Yes, I remember driving the car. We were pulled over. I told them the car was stolen”. He said that three others were in the car, two males and a female. LRMM said that the female was the same female who was involved in subsequent offending.
LRMM said he knew the car was stolen but did not know who had stolen it. He said he was driving without a licence but “wasn’t thinking at the time”. He agreed that there were others in the car who were able to drive, but “I don’t know if they had licences.”
The offending that triggered the visa cancellation
Two weeks later, in November 2019, LRMM was involved in offending that he agreed was serious. LRMM said he was staying with an older man, whom he called ‘Ray’. Others were also at Ray’s house, including the female, who will be called ‘AF’. He said that he stayed at the house for two or three days before the offences began.
LRMM said that some in the house, including AF, were using ‘ice’, but he would go for a walk when they were using it, or go to his father’s house. He then started to use it, “two or three times, every couple of hours. We used to smoke it at night.”
LRMM said in relation to the early November incident, he and AF and two or so others were walking around, “we were high”. He added: “We did talk about robbing someone to get money for drinks and stuff.”
In the first incident, the victims were a female and male who were standing on a street corner early one morning. They were strangers to the Applicant. The police report (GD, p 316) recorded that AF pushed the man and punched the woman with a closed fist. The male dropped his bag. AF picked up the bag, which contained bank and personal identification cards and a $200 voucher and ran away with LRMM and another male. AF then passed the bag to LRMM.
The next offence was three days later. The police report (GD, p 316) recorded that the male victim was walking along a street soon after midnight. Again, he was a stranger to the Applicant. One of the group approached the victim and asked him if he wanted “trouble”. The victim attempted to walk away. One of the group demanded his backpack. The victim removed it and showed it to them. Mr McLaren noted that the police report stated that:
[LRMM] then held a knife at the complainant’s stomach. The complainant said he did not need to use a knife. [HF] then took the complainant’s bag and searched it. One of the males took the complainant’s mobile phone and demanded the pin code, as [LRMM] continued to hold the knife against his stomach. [LRMM] then moved it to the complainant’s throat, such that the blade touched his skin. As he did this, he told the complainant nothing would happen to him as long as he gave them what they wanted. The complainant complied and gave them his pin number. The blade remained at his throat while another male unlocked the phone and completed a factory reset. [AF] then wiped the handle of the complainant’s backpack and said she needed to remove her fingerprints. [LRMM] then told the complainant not to go to police and release him. Both defendants and the two unknown male offenders walked away from the scene with his mobile phone.
The third incident occurred the next day, again early in the morning in the same suburb. The male victim was walking along a street. AF approached the victim and asked him directions to the local train station. LRMM then asked the victim if he had any money. He replied “No” and that he only had bank cards. AF and LRMM continued to follow the complainant, asking for money. The report states (GD, p 317):
[LRMM] then put his right arm around the complainants head and pulled his face towards him. He pressed an object against the complainants chest and said, “Don’t move or I’ll stab you.” The complainant asked [LRMM] whether he was going to stab him; [LRMM] said he would not if he did not move. At this point, [AF] searched the complainant’s pockets, removing and stealing his bank cards and a mobile phone.
The complainant put his hand in his pocket and grabbed his keys. As he did this, [LRMM] struck his head with a fist and told him not to move. The complainant called out to a nearby Uber driver to call police. [AF] then struck the complainant on the back of his head a few times. She then attempted to pull the keys from the complainant’s hand causing them to fall onto the ground. When the complainant bent down to pick them up the defendants began hitting his head again. They then walked up the driveway away from the complainant.
The complainant ran after them and got hold of [AF’s] jumper. He demanded her to return his property. [LRMM] ran up to the complainant and stabbed him twice in his right upper arm and punched him in the head with a closed fist. The complainant sustained lacerations to his left eye and nose and two lacerations to his left upper arm each approximately 1.5cm in length.
The complainant ran towards the Uber driver and asked for help. The defendants ran to a nearby driveway of a unit complex on [address redacted]. Shortly after, [AF] ran out of the driveway and into another street and [LRMM] continued up the driveway before they both disappeared.
Police and Queensland Ambulance Services arrived shortly after. The complainant was transported to a Hospital where he was treated for his injuries. The wounds on his arm and his eye were sutured closed using stitches.
Mr McLaren asked LRMM about the second incident and noted that the report recorded that he held a knife to the victim’s throat, and later moved the knife to his stomach. LRMM said: “We took his phone. I don’t remember holding a knife to his throat”. The Applicant agreed that he went out, with Ray, with a plan to rob someone. Mr McLaren asked LRMM where did the knife come into it. He responded: “It was Ray’s knife. He said I could use it. I was not planning to hurt or attack anyone. I’m not a psychopath. I didn’t plan to hurt someone for no reason.”
LRMM agreed that he held the knife to the victim’s stomach and told them to hand over the money. He said he did not remember telling the victim not to go to the police. He agreed that he took the victim’s mobile phone.
In relation to the third incident, LRMM agreed that he grabbed the man around his head and put a knife to his chest. He agreed that he said, “Don’t move or I’ll stab you”. When asked whether he remembered the victim calling out, LRMM said: “Before that happened, he got AF by the hoodie and she said she couldn’t breathe.”
LRMM agreed that he stabbed the victim twice in the arm and pushed him. He told the Tribunal it was a small knife, with a non-retractable blade. When asked why he stabbed the victim, LRMM said: “Because she said she couldn’t breathe. I thought if I stabbed him, he would let her go.”
LRMM said at the time he was living with his father and had told his father he was away, staying with friends, and then he was arrested. LRMM told the Tribunal that he informed his parents the following day but did not tell his mother why he had been arrested. When asked whether his father knew, LRMM said, “No. My father didn’t know much about it. I didn’t want them to be disappointed in me”. LRMM said he had subsequently told his father what he had done.
Mr McLaren asked LRMM whether he recalled using ‘ice’ with his stepsiblings. The Applicant responded, “No”. When asked whether he used marijuana with his stepsiblings, LRMM said, “I don’t remember.”
Mr McLaren then quoted a conditional bail application form which was not dated but which was signed by the Applicant and which relevantly said (GD, p 382):
[LRMM] disclosed that he only smokes cigarettes and denies engaging in any form of substances. However, information provided from [Mr JM and another name redacted] suggested that [LRMM] has had involvement with methamphetamines (ice), marijuana and alcohol via his engagement with his step siblings in the care of [Ms SB].
[LRMM] advised that he considers himself to be a person who is not easily angered however, has the tendency to become verbally and physically aggressive due to feeling victimised. [Mr JM] indicates that [LRMM] would often resort to aggressive behaviours as a means of dealing with his frustration when he is being bullied by others.
LRMM said he remembered engaging with conditional bail programme officers at the State Department of Justice in 2016. Mr McLaren noted that the report suggested he participate in a ‘CHART’ (Changing Habits and Reaching Targets) course and an Aggression Replacement Training programme and asked if he remembered that. He responded: “No, I don’t. I don’t know whether I did or not.”
LRMM said that he did not recall using ‘ice’ in company with his stepsiblings and could not remember whether he had used marijuana with them. He said he did not drink alcohol with them.
Mr McLaren asked LRMM if he agreed he was not easily angered but was aggressive if victimised or bullied or felt someone was picking on him. The Applicant responded: “No. I can stand up for myself.”
The Tribunal directly asked LRMM about the knife he used in the second and third incidents, and noted the evidence recorded that it had a 20-centimetre blade. He responded: “I think it was a small knife. It was so long ago; I don’t remember that much.”
In respect of the nature of harm to individuals or the community would face if LRMM engaged in further criminal or other serious conduct, the Tribunal finds that harm would range from violation of houses from breaking and entry and property theft, to threats to personal safety and even personal injury if the Applicant re-offended in terms of the armed assaults.
The Applicant was involved to different degrees in the three incidents outlined above. In the first incident, it is relevant that LRMM was not directly involved, but he stood by and supported other offenders, as the sentencing Judge noted.
In the second and third incidents, LRMM used a knife to menace innocent people who he and his co-offenders encountered on the street, solely with the aim of taking their money and personal possessions.
In the third incident, LRMM readily injured a victim, causing lacerations serious enough that he required hospital care and suturing of cuts to the eye and the arm. This is reprehensible conduct. It was premeditated. It was carried out with a group. His offending was over successive days. The aim, as LRMM admitted, was to rob people.
There is scant evidence of rehabilitation undertaken by LRMM. He could not remember whether he had engaged in the services suggested by the probationary officers in 2016. He told the Tribunal he had engaged with QPASTT only two days before the second day of the hearing (i.e., on 8 June 2022).
When asked whether she understood LRMM’s criminal convictions, his mother, Ms SB, told the Tribunal, “He never told me before but when he was brought to detention, he told me the truth, about the alcohol and everything”. She said he told her “he used a knife on someone and was drunk.”
When asked whether she knew of LRMM’s drug and alcohol use, Ms SB said: “I didn’t know before but I found out when he was arrested.”
Ms SB expressed the opinion that LRMM had been affected by her separation from Mr JM. She said that he was young and had “bad friends” but thought that, now he is older, he has learned from his mistakes. She did not think he would go back to that sort of behaviour again.
When asked where LRMM would live if allowed to stay in Australia, Ms SB said: “I will take responsibility. He will live with me”. Ms Lenton then told Ms SB that LRMM had said in his own evidence that he would live with his father. Ms SB responded, “He can stay with his father at night-time, and me in the daytime. We will both watch. I will take him to sport and make sure he is busy.”
Ms SB said she had prepared for LRMM to attend counselling, and her general practitioner would arrange for him to see a psychologist.
Under cross-examination, Ms SB agreed that, on one occasion, she had smelt alcohol on LRMM’s breath at their home. She said, “He told me it was an energy drink”, and then, in response to a direct question from the Tribunal, said she did not believe him.
Ms SB said that she and her husband had discussed their concerns about LRMM’s behaviour: “He’s a young boy. Me and his father knew he would do bad things, but what can we do?” Ms SB said she would support LRMM in obtaining employment, perhaps as a mechanic, because he had some experience in that area before and was good with machinery. Ms SB agreed that LRMM has never had paid employment.
Mr JM, the Applicant’s father, also gave evidence. When asked about LRMM’s criminal convictions, he said: “I don’t have detailed knowledge. He was not openly telling me. He had bad friends. He was a young boy. His mother told me what he did. I want him to be a good person and I want him to change his life.”
Mr JM was pressed on whether he knew of LRMM’s convictions, and he said: “He was afraid of me but told me recently he did bad things against the government because he had bad people about him.”
Mr JM was then asked whether he knew that LRMM previously used drugs and alcohol, and he responded: “I didn’t see him taking drugs or drinking alcohol before me. Recently he told me he did bad things to the government. I don’t know what crimes he committed. Recently in the IDC he told his mother he’d taken drugs and alcohol”. Mr JM said he had been told this two months ago. By this evidence, the Tribunal understood the Applicant’s father not to be saying LRMM took drugs and alcohol in the Immigration Detention Centre (‘IDC’), but that he had admitted to his mother that he had taken them in the past.

Mr JM said that LRMM would stay with his mother during the daytime and would be with him at night.
Ms Lenton asked Mr JM if it was the case that LRMM had not disclosed his previous criminal activity to his father because he was afraid to, and why would it be different in the future. Mr JM responded: “It is cultural to respect the father. I think I will advise him. In the future he isn’t going to hide anything from me. He is going to change his life.”
Mr JM said that LRMM’s elder brother is a mechanic and can train the Applicant. He said that LRMM was now an adult and had promised him that he would not commit any more crimes.
Under cross-examination, Mr JM agreed that LRMM would spend a lot of time out with his friends, sometimes overnight. Mr McLaren asked whether he was ever concerned about what his son was doing. Mr JM responded: “I wasn’t. I thought Australia is a good country. I didn’t think he would be involved in bad things”. Mr JM said he was aware of interactions with the police and LRMM attending Court.
Mr McLaren noted that in his written statement, Mr JM wrote, “I should have stopped him going out at night”. Mr JM responded: “Well, yes. He was a kid. We couldn’t stop him. We couldn’t do anything about him. He will be a good boy. He will be helped by the community.”
Mr JM was asked what rules he would place on LRMM if he was released into the community and lived with him. He replied: “By that time, he will be in control of me and his mother. He’s going to be kept at home. This time he is an adult. We are going to advise him and treat him appropriately.”
The Tribunal was troubled by some of the evidence LRMM gave. While it may be true that some of the groups with whom he associated egged him on in his offending, many of the actions which led to his criminal convictions were of his own volition. For instance, he admitted driving a car while not having a licence and that he had not suggested that another passenger in the car, who may have been licensed, should drive instead. In this hearing, he denied possessing stolen numberplates, and yet he admitted he had pleaded guilty to possessing tainted property.
In respect of his most serious offending, where he stabbed the victim, he did so in circumstances where he had been given a knife by ‘Ray’, and where he had previously held that knife to the throat (which the Court found but which LRMM denied) and then the stomach (which LRMM admitted) of another victim. It was not, as the Applicant suggested, a small knife. It was a knife with a 20-centimetre blade. His only explanation before the Tribunal for why he stabbed the victim was that his co-offender, AF, had called out that she could not breathe. That is no excuse for going armed and then injuring an innocent passer-by who they had mugged and whose property they were in the process of stealing.
The extracts of answers given in oral evidence by LRMM’s parents, Ms SB, and Mr JM, reveal to the Tribunal several things. The first is that they did not have an appreciation of LRMM’s past offending and other misconduct, largely because he had hidden it from them. The second thing is that what understanding they did have is relatively recent. The third thing is that they had been unable to constrain his conduct in the past in associating with undesirable elements, even when he was living in the same house as his father. The fourth thing is that the Tribunal is significantly doubtful that they would be able to help LRMM modify his behaviour in the future. The Tribunal accepts that Mr JM and Ms SB are loving parents. The flavour that came across in the evidence of each of them is that LRMM’s behaviour has exasperated them. But the Tribunal is not satisfied that any future accommodation arrangements that are planned for the Applicant would have a major preventative effect on him re-offending.
In respect of courses recommended by the probation authorities around 2016 for LRMM, he could not remember whether he had undertaken the courses recommended. The Tribunal concludes either that he did not engage or, if he did, they were of little effect, and he has not retained any lessons learned, given his subsequent criminal offending.
Professor James Freeman, a clinical and forensic psychologist, examined LRMM in March 2021 for a clinical assessment (GD, pp 559-566). It was conducted by telephone. Professor Freeman considered LRMM was frank in his responses and co-operative during the assessment. He summarised LRMM’s previous abuse of alcohol, some use of cannabis and use of methamphetamine for three days prior to his apprehension.
Professor Freeman administered three psychometric tests: The Hare Psychopathy Check List (‘PCL-R’); the Historical, Clinical and Risk Management Violence Assessment Scheme (‘HCR-20’); and the Violent Risk Appraisal Guide (‘VRAG’). In respect of the PCL-R, Professor Freeman recorded that LRMM demonstrates remorse and guilt, and then states:
However, he has shown poor behavioural control (at times), been impulsive, and demonstrated some level of criminal versatility. Nevertheless and when taken together, he does not present with clear psychopathic tendencies and that has [sic] been demonstrated to increase the risk of recidivism.
In respect of the HCR-20, Professor Freeman concluded that LRMM’s scores for this scale:
places him in the ‘moderate’ risk category for future acts of violence due to evidence of:
Violence during adolescence;
Antisocial behaviour as an adolescence [sic];
Unemployment;
Substance abuse;
Mood disorder (Adjustment Disorder);
Victim of past trauma (e.g. adverse childrearing experiences);
Supervision breach;
Lack of treatment; and
Lifestyle instability.
In respect of the VRAG assessment, Professor Freeman recorded that:
[LRMM’s] score on this scale indicates that he can be considered on the borderline between ‘medium’ and ‘high’ range for future acts of violence, although this is again influenced by static factors.
Professor Freeman’s summary assessment was that:
[LRMM] presents as a young male who has been considerably stabilised by both substance misuse and his past friend group (which elevated his inability to recognise and respond appropriately to high-risk situations). As a result, his treatment needs are focalised. While he can be considered in the medium to high risk of recidivism, if he can avoid the above mentioned risk factors, then his prospects for the future can be considered much more optimistic.
Professor Freeman concluded with an observation that LRMM seemed particularly distressed about the uncertainty if he is deported to Ethiopia and that this, in his view, would prove to have a strong specific deterrent against recidivism if he was permitted to remain in Australia.
The Tribunal concludes, based on its assessment of the evidence and Professor Freeman’s professional clinical opinion, that LRMM is at least a moderate risk of re-offending, including in a violent manner.
This primary consideration weighs relatively heavily against revoking the mandatory cancellation of the visa.
Family violence committed by the non-citizen (paragraph 8.2)
There was no evidence before the Tribunal that the offending history of LRMM is relevant to this primary consideration. It therefore weighs neutrally in this assessment.
Best interests of minor children in Australia (paragraph 8.3)
The Tribunal is required to make a determination regarding the best interests of any relevant minor children who may be affected by the decision. The Direction requires the Tribunal to make separate determinations about relevant minor children where there is evidence that their interests might differ.
The ASFIC (paragraph 23) states that LRMM is one of ten children, and that four of them are minors and Australian permanent residents: a brother born in 2009; a brother born in 2011; a brother born in 2005, and a sister born in 2007. LRMM said he was close to all his siblings and spoke to them often, including since he has been in immigration detention. He told the Tribunal that he had a brother with Down syndrome, ‘AY’.
In her evidence, Ms SB said LRMM was close to AY. She said that AY has some support through the National Disability Insurance Scheme (‘NDIS’), including home visits. She said that whenever she called LRMM, he would chat with AY and, before his arrest, he would take AY to the park. Ms SB said she had not told her younger children what the potential consequences might be for LRMM if his visa is not restored because they are too young. Ms SB said that one of the symptoms of AY’s condition is that he has a tendency to faint.
In his evidence, Mr JM told the Tribunal of another son, ‘KN’, who is 16. Mr JM said that KN had been hit by a car near his mother’s home and sustained kidney damage. This has led to lasting effects, and KN was in the process of being assessed for NDIS support. Mr JM said he receives a carer payment for looking after KN.
The Tribunal is satisfied to make a determination that it would be in the best interests of the relevant minor children for the mandatory cancellation to be revoked. While the weight of this consideration is tempered because LRMM does not perform a parental-type role in relation to the children, I am satisfied they have a warm and loving relationship with them, and, when he has been living at home, he has been able to help his parents with the care of AY (and, potentially, KN). The evidence of LRMM’s past affinity with and care for his disabled brother AY is relevant to the best interests of AY. To the extent that AY has special needs that differ from his siblings, the Tribunal makes a determination that it would be in his best interests for LRMM to have his visa restored.
The Tribunal finds that this primary consideration weighs slightly in favour of revoking the mandatory cancellation of the visa, especially because of the special additional needs of AY and KN.
Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
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.
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of 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, of the following kind:
…
The expectation of the Australian community is taken to be a “norm”. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. An old version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The Court held that it is not for a decision-maker to make his or her own personal assessment of what the “expectations” of the Australian community may be. The expectations articulated in the Direction are “deemed”; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other evaluative process.
Direction No. 90, issued after FYBR, imports the statement that the expectations of the Australian community are to be considered as a “norm”, which acknowledges the approach taken by the plurality of the Court in FYBR. Accordingly, while the expectations of the community are “deemed” to weigh against an applicant, the relative weight will be affected by circumstances in the individual case.
LRMM has been treated relatively leniently by the Courts with a range of judicial tools, until the scale of the offending earned custodial sentences. The community may take into account LRMM’s relatively young age but would abhor the fact that he set out to rob innocent persons going about their business, including assaulting them and, in one case, stabbing a man. The fact that he was affected by ‘ice’ and possibly by alcohol would not in the Tribunal’s view dilute the expectation.
The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
Paragraph 9 of the Direction lists other considerations that must also be taken into account, where relevant, noting these are not an exhaustive list:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)strength, nature, and duration of ties to Australia; and
(ii)impact on Australian business interests.
International non-refoulement obligations (paragraph 9.1)
The Direction states that 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. It goes on to say that Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (i.e., the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘the CAT’), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (‘the ICCPR’). The Migration Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, the Direction exhorts decision-makers to follow the tests enunciated in the Act.
Paragraph 9.1(2) of the Direction tells decision-makers to carefully weigh any non-refoulement obligations against the seriousness of the non-citizen’s criminal offending or other serious conduct; and it reminds the Tribunal that unlawful non-citizens are liable to removal from Australia in accordance with section 198 of the Act and, in the meantime, detention under section 197 of the Act.
The High Court of Australia, in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17, has recently clarified what the task of the Tribunal is in assessing submissions made in respect of non-refoulement obligations by or on behalf of a non-citizen. The majority of the Court (Kiefel CJ, Keane, Gordon and Steward JJ) held, at [28]:
Decision-makers’ approach to non-refoulement
Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
Where the representations do include, and the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under section 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia’s domestic law.
Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under section 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
(Emphases in original. Footnotes omitted.).
Submissions on behalf of Applicant
The ASFIC submits several reasons why it is contended LRMM is owned non-refoulement obligations. The first is that LRMM was the holder of a refugee visa and had previously been found to be owed non-refoulement obligations ‘by the UNHCR and the Australian government previously’.
The second reason was that the DFAT Country Information Report – Ethiopia (‘CIR’) and a United States Department of State Human Rights Report on Ethiopia provide credible evidence of the levels of violence and insecurity in Ethiopia. The ASFIC contends that LRMM is of mixed Somali and Ethiopian descent and, if sent to Ethiopia, would be without family support and connexions, has limited work history and education, is illiterate and does not speak any of the Ethiopian languages. It was contended that LRMM is, because of these characteristics, at a much higher personal risk of serious physical harm or death if he was to return. It was further submitted that LRMM is likely to experience persecution because of his Oromo ethnicity.
Submissions on behalf of Minister
The Minister noted that LRMM can apply for a protection visa and is not prevented from doing so by sections 48A and 501E(2) of the Act.
The Respondent submitted that the fact that LRMM previously held a refugee visa does not establish he is a person in respect of whom Australia has protection obligations. LRMM was granted his former refugee visa as the minor member of a family unit that was granted such a visa.
The Respondent noted that, although the security situation has deteriorated in parts of Ethiopia since 2018, the CIR states that the capital city “Addis Ababa has largely been immune from this instability to date” and that “outside of national and state border areas, the government controls the security situation, and Ethiopia tends to be safer than most of its neighbours”. The CIR assesses Addis Ababa to be particularly stable, and it continues to attract migrants from other parts of the country in search of economic opportunities.
In relation to LRMM’s Oromo heritage, the Respondent noted that the CIR records “DFAT assesses that, excluding in Addis Ababa, Oromos face a moderate risk of violence in areas or states where they constitute a majority” and, in relation to Ethnic Somalis, that “DFAT further assesses Ethnic Somalis, including government critics, face a low risk of official discrimination or violence on ethnic grounds.”
The Respondent submitted that there was no evidence of any risk to LRMM, based on his ethnicity or otherwise, were he to reside in Addis Ababa and he would not logically live in one of the areas where it is contended that, as a person of mixed Oromo-Somali blood, he may face potential difficulties.
Tribunal’s conclusions
The Tribunal agrees with the Respondent that the fact that LRMM held a refugee visa does not, ipso facto, indicate that Australia had accepted he is owed non-refoulement obligations. He received that visa as a minor child of his parents (who were assessed), but there is no evidence before the Tribunal that a personal assessment was undertaken of any claims relating to LRMM himself.
The Tribunal also accepts that the CIR distinguishes between the situation in the Ethiopian capital, Addis Ababa, and some other parts of the country, in terms of violence and instability. The Tribunal is not satisfied on the information before it that LRMM would face a risk of significant harm if deported to Ethiopia; and it notes that, under section 36(2B) of the Act, even if there is an area where a person might face significant harm, the Minister may be satisfied that the person would not face significant harm if it would be reasonable for the person to move to another area of the country where such a risk is not present.
The Tribunal accepts that LRMM has never been to Ethiopia, and there was no evidence of any strong connexions he might have in that country, which would be a relevant impediment dealt with later in these reasons.

The Tribunal finds that this consideration weighs neutrally in this assessment.
Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of any impediments that LRMM may face if removed from Australia to his ‘home country’ (as it is described in the Direction), in establishing himself and maintaining basic living standards. Importantly, the Direction stipulates that the yardstick of measuring the extent of impediments is to be in the context of what is generally available to other citizens of the country – it is not a comparison between what is available to the non-citizen in Australia and the other country.
The Tribunal must take account of LRMM’s age and health, any substantial language or cultural barriers, and any social, medical and/or economic support available to him in the other country.
The ASFIC and RSFIC addressed this consideration with the assumption that the ‘home country’ of LRMM is Ethiopia. There is a certain artificiality to that when the Applicant has not for a day lived in Ethiopia. Added to that is my finding that he is not currently a citizen of that country, but is entitled to Ethiopian citizenship. However, with these qualifying facts made clear in terms of the requirement that I must attend to this consideration, I will proceed on the basis that Ethiopia is the country of reference.
LRMM is aged 21, and there was no evidence that he is not a young man in good physical health. Regarding his mental health, Professor Freeman, in his report of 16 March 2021, posited a diagnosis of (a) Alcohol Dependency Disorder (in partial remission in a controlled environment); (b) Adjustment Disorder with anxious distress; and (c) A provisional diagnosis that LRMM was of below average intelligence.
The Tribunal further notes that the letter from the counsellor at QPASTT dated 7 January 2022 (Exhibit A1) makes reference to LRMM having an Adjustment Disorder with anxious mood for which he had been prescribed an antidepressant and that he had engaged in counselling sessions with that organisation.
The Tribunal accepts that LRMM’s diagnosed mental health conditions and his Alcohol Dependency Disorder (in partial remission in a controlled environment) would be an additional impediment to him if he is deported to Ethiopia. LRMM himself acknowledged in his oral evidence that he still has an alcohol problem, albeit he is currently in immigration detention and does not have ready access to alcohol. That admission is to his credit. However, LRMM has only recently (June 2022) sought professional help in relation to his alcohol problem, even though he has been in custody and detention for around two years. The Tribunal does not criticise LRMM too much for that because, often, access to professional counselling help in prison or detention is hard to arrange. But it does indicate he has been slow to appreciate the significance that abuse of alcohol has had in affecting his offending history.
However, it is alcohol that has generally been the vice for LRMM, accepting his evidence that he had not taken ‘ice’ until he was staying at ‘Ray’s’ house. As it is yet to be shown that LRMM can control his use of alcohol in a non-controlled environment, the following reference in the CIR regarding healthcare in Ethiopia is germane (para 2.24):
While the availability of health facilities and health professionals has improved, it remains insufficient overall. According to the UNDP, Ethiopia has one physician and three hospital beds for every 10,000 people. Availability is particularly pronounced in rural areas, which lack hospitals (people in remote areas must often travel to their state capital to access a hospital). Public health facilities in the major cities, including Addis Ababa, are basic. Private clinics and hospitals exist but are financially prohibitive for the average person.
The Tribunal specifically finds that LRMM, as a person with diagnosed mental health conditions linked to alcohol abuse (even if currently in remission), would be especially and detrimentally affected if deported to Ethiopia where the Department of Foreign Affairs and Trade have expressed an informed opinion about the public health facilities there. While this lack of services might be a privation all Ethiopians deal with in their daily lives, the specific mental health conditions of the Applicant would cause a particular and deleterious situation which the Tribunal must take into account.
The Respondent acknowledged that LRMM has never lived in Ethiopia and noted that his brother is currently in immigration detention, which ‘raises a potential that the Applicant will have at least one relative who may join him in Ethiopia’. The Tribunal considers that this submission is purely speculative. The Tribunal has no information relating to LRMM’s brother or the likelihood of him being deported to Ethiopia. There is no evidence that LRMM has family members in Ethiopia. Whether or not the Applicant’s brother might be deported to Ethiopia is not something the Tribunal can usefully speculate about, nor does it have any force as a militating force in terms of LRMM resettling in that country. The Tribunal therefore rejects that argument put on behalf of the Minister.
LRMM says he speaks English and Somali and some Amharic. The Respondent noted that the CIR recorded that Ethiopia is a linguistically diverse country and English is widely taught and spoken. The ASFIC submitted that LRMM is “likely to suffer significant physical violence and harm in Ethiopia” that he “does not speak the language” and that he is illiterate and has limited education and no work history.
The Applicant’s father, Mr JM, said he had not returned to Ethiopia after he fled in 1990. He said he does not have any Ethiopian documents and, in response to a direct question from the Tribunal, said the only non-Australian identity document he has is “a refugee ID card endorsed by the UNHCR in Geneva”. When asked whether he believed LRMM could obtain an Ethiopian passport, Mr JM responded: “No, LRMM cannot get one, because I don’t have one”. When asked whether he had any family in Ethiopia, Mr JM replied: “Since I left in 1990 the only contacts I have had are with people in Australia.”
Mr McLaren asked Mr JM whether he believed LRMM would have difficulties integrating into Ethiopian society as opposed to any harm he would face there. Mr JM responded: “He doesn’t have anywhere to go. He is here in Australia. My relatives are not there. There is nowhere he can go”. Mr JM was then asked whether he thought LRMM would be harmed for any reason in Ethiopia. He responded: “There is no proper government in Ethiopia. They are putting people in gaol. The government is killing people, burning houses.”
Mr McLaren asked Mr JM why he thought his son would be killed if he went to Ethiopia. He replied: “They don’t know who he is. Maybe they would think he had gone there to commit crime. All his relatives are either killed or displaced”. When pressed on why he thought local people in Ethiopia would think LRMM had gone there to commit crimes, Mr JM said: “Where would he go? They would ask him who he was.”
The evidence of Mr JM is, understandably, based on his knowledge of the political instability of Ethiopia in general, and his own experiences prior to leaving the country in 1990. The Tribunal does not conclude that the Applicant (or his father) has raised a particularised real risk of significant harm. But it does conclude that as LRMM has no apparent family or friends there, and no first-hand knowledge of the country at all, that there would be significant impediments in his resettling there, if returned. These impediments would be over and above those which an Ethiopian national who has lived in that country, and who might have relatives there, would experience if he or she were repatriated.
Accordingly, this consideration weighs relatively heavily in favour of revoking the mandatory cancellation of the visa.
Impact on victims (paragraph 9.3)
The Direction requires the Tribunal to consider the impact of the cancellation of the visa on members of the Australian community, including victims of LRMM’s criminal behaviour, where that information is available.
The Tribunal interprets this to mean, first, that a victim of a non-citizen’s offending must be aware of the immigration action taken by the Minister or delegate and, second, that the victim must have expressed a view that is before the decision-maker. There was no evidence before the Tribunal that this was the case. This consideration, therefore, weighs neutrally.
Links to the Australian community (paragraph 9.4)
The strength, nature, and duration of ties to Australia
This consideration requires the Tribunal to consider the impact of the decision to revoke the visa on LRMM’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. The Tribunal must have regard to how long the Applicant has resided in Australia, giving less weight where he offended soon after arriving in Australia and more weight to time he has spent contributing positively to Australia.
LRMM is 21 and has been in Australia since late 2012, arriving when he was 11 years of age. He has not departed Australia since his arrival. His formative years have been in a refugee camp in Kenya, with the hardship that entails, and then in Australia. He has been either in custody or immigration detention since 2020.
LRMM’s parents and nine siblings all reside in Australia. They are permanent residents. As discussed earlier in these reasons, there is no evidence of the Applicant having any family in Africa, whether in Somalia, Kenya, or Ethiopia. The Direction requires the Tribunal to have regard to whether a non-citizen arrived in Australia as a young child, which, as he was not yet of teenage, LRMM did. The Direction requires that less weight should be given where the non-citizen began offending soon after arriving in Australia, and more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
The Tribunal notes that LRMM’s adult appearances in Court began when he was 18, which is some seven years after he arrived. The Tribunal also notes that the Applicant has never held paid employment, although his evidence is that he did attempt to apply for jobs.
Overall, the Tribunal is satisfied that there would be a significant effect on LRMM’s parents and siblings if he was deported. The Tribunal accepts, although LRMM’s behaviour has been challenging, his family have been consistently supportive of him.
This sub-consideration weighs relatively heavily in favour of revoking the cancellation of the visa.
Impact on Australian business interests
This part of the Direction notes that, in assessing impact on Australian business interests, an employment link would generally only be given weight where the decision under review would “significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
The Applicant has not held any notable employment positions in Australia and, as an adult, has been on social welfare when not incarcerated or abroad. I do not consider this sub-consideration relevant.
The consideration, as a whole, weighs in favour of revoking the mandatory cancellation of the visa.
SPECIAL CONSIDERATION
Possibility of prolonged detention
As mentioned above, the Tribunal is not confined to considering only the considerations set out in the Direction. The ASFIC submitted that there are likely to be practical obstacles in LRMM obtaining Ethiopian citizenship and a passport, and, consequently, he is likely to be subject to ongoing indefinite detention if the reviewable decision is affirmed.
The evidence of the Applicant’s father, Mr JM, is that he fled Ethiopia on release from prison with no personal identity documents, and he has no documents of that nature other than a UNHCR card issued to him before he travelled to Australia. As a corollary, the Tribunal accepts the submissions made on behalf of LRMM that there will be obstacles to him proving the identity of his father and, thence, his own identity in respect of Ethiopian citizenship by birth.
The Applicant referred the Tribunal to the British Red Cross publication Can’t Stay. Can’t Go. Refused asylum seekers who cannot be returned (GD, p 136). In regard to Ethiopia, that publication states (at p 6):
To leave the UK, a refused asylum seeker will need a travel document. The Home Office Country Returns Guide (Home Office 2016b) details the type of travel document needed. The Home Office can issue European Union letters (EULs) for certain countries, such as Ethiopia. However even then, EUL removals to Ethiopia can only be arranged once approved by the Ethiopian authorities and removals must be supported by evidence clearly demonstrating Ethiopian nationality.
Taking into account that this is written from a British perspective, and that there would be changes now the United Kingdom has left the European Union, the Tribunal considers that this is relevant to LRMM’s case because any person returned to Ethiopia must be first approved by the Ethiopian Government for return and must be supported by evidence demonstrating Ethiopian nationality. LRMM appears potentially ham-strung here, because to satisfy the Ethiopian authorities that he is entitled to citizenship of that country, he must first provide proof that his father is an Ethiopian national. Mr JM said that he has never had an Ethiopian passport and does not have any Ethiopian identity documents; his only identity document prior to coming to Australia was provided by the UNHCR.
The Respondent did not make any submissions about the process the Ethiopian Government has for persons to prove their citizenship. Nor did the Applicant, other than what is above.
Setting to one side the claim in the ASFIC regarding LRMM being owed non-refoulement obligations, the Tribunal considers that there may be practical impediments to LRMM obtaining the relevant paperwork for patriation to Ethiopia. The Tribunal finds that, consequently, LRMM would be held in immigration detention until he can practicably be sent (a) to the country of reference under section 198 of the Act; or (b) in the case he applies for a protection visa, until any such application is decided.
The Minister has other tools available to him for the disposition of an illegal non-citizen, including making a residential determination or arranging for him to be sent to a third country. The Minister may also exercise other ministerial powers under the Act to grant LRMM a visa. It is unavailing, in the absence of any submissions on these points from the Respondent, for the Tribunal to try and guess the likelihood of any of these powers being exercised in relation to LRMM on the one hand; or whether he will apply for a protection visa, on the other, when no such indication has been given to the Tribunal.
The Tribunal does not have sufficient information before it to accept the Applicant’s contentions that LRMM is stateless. I have found that he is entitled to citizenship of the Federal Democratic Republic of Ethiopia. However, if a consequence of him not being able to satisfy the Ethiopian authorities of his father’s place of birth means he cannot be issued an Ethiopian travel document then, for all practical purposes, LRMM would be de facto stateless, or at least in limbo.
The Red Cross publication referred to above contains many case studies on particular persons endeavouring to deal with Ethiopian embassies to obtain travel documents to return to that country. The documented results are that either the embassy says they cannot help without evidence of nationality, or the embassy simply does not respond.
Given that the fact of LRMM not having proof of Ethiopian citizenship might lead to prolonged detention, the Tribunal considers that a non-citizen is entitled to certainty of outcome once a process is initiated to cancel his visa. Accordingly, the Tribunal finds that this additional special consideration weighs heavily in favour of revoking the mandatory cancellation of LRMM’s visa.
SUMMATION
The Tribunal has found that two of the primary considerations, the protection of the Australian community and the expectations of the Australian community, both weigh relatively heavily against revoking the cancellation of LRMM’s visa. Notably, the assessment of the risk of re-offending, including violent re-offending, is assessed as moderate. The primary consideration relating to the best interests of minor children in Australia weighs somewhat in favour of the Applicant, but he is not in a parental role for any of the children. The primary consideration relating to family violence is not relevant.
Regarding the other considerations, that relating to international non-refoulement obligations is found to weigh neutrally, as is the impact on victims. The considerations relating to LRMM’s links with Australia and the impediments if he is removed to Ethiopia weigh strongly in favour of restoring his visa. The Tribunal has identified an additional special consideration, relating to the possibility of prolonged detention. Lack of sureness about LRMM’s ability to obtain Ethiopian travel documents and, therefore, permission from the government of that country to be deported to it, means that this special consideration weighs in favour of the Applicant, and relatively strongly so.
The Tribunal has considered the balancing exercise in relation to this matter and LRMM’s circumstances and, because of the nature of his offending and what appears to be some lack of insight into it, added to the assessed moderate risk of him re-offending, finds that the general principle in paragraph 7(2) of the Direction that primary considerations generally outweigh other considerations, applies in this case. The Tribunal also notes it is relevant that LRMM can apply for a protection visa.
The consequence of this finding is that the discretion available in section 501CA(4)(b)(ii) of the Act is not enlivened.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 184 (one hundred and eighty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...........................[sgd].............................................
Associate
Dated: 19 August 2022

Dates of hearing: 9, 10 May 2022 and 10 June 2022

Date final submissions received: 16 June 2022

Advocate for the Applicant: Ms Victoria Lenton

Solicitors for the Applicant: Lenton Migration Lawyers

Advocate for the Respondent: Mr David McLaren

Solicitors for the Respondent: Minter Ellison
ANNEXE
Schedule of Exhibits

Exhibit No

Exhibit’s Description

R1 Collated volume of ‘GD’ lodged on 16 November 2021

A1 Report by Anna Perry, Counsellor, Queensland Program of Assistance to Survivors of Torture and Trauma (QPASTT) dated 7 January 2022

A2 The United Nations High Commission for Refugees, Briefing Note, 4 November 2014, ‘Violent incidents at Kenya’s Kakuma Refugee camp claim eight lives over past week’

A3 The United Nations High Commission for Refugees Global Report 2010

A4 Article by Michael Farrell (National Drug and Alcohol Research Centre) at the University of New South Wales, and Rebecca McKetin at the Australian National University, dated 10 June 2015

A5 Department of Foreign Affairs and Trade (DFAT) Country Information Report on Ethiopia dated 12 August 2020

A6 United States Department of State Human Rights Report on Ethiopia 2020

A7 Commonwealth Ombudsman, Inquiry into Immigration Detention in Australia, Submission No.126 (August 2008)

A8 M Werthen et al, ‘The impact of immigration detention on mental health: a systematic review’ (2018) 18 BMC Psychiatry

A9 Commonwealth Ombudsman, Suicide and Self-harm in the Immigration Detention Network, May 2013

Dates of hearing:	9, 10 May 2022 and 10 June 2022
Date final submissions received:	16 June 2022
Advocate for the Applicant:	Ms Victoria Lenton
Solicitors for the Applicant:	Lenton Migration Lawyers
Advocate for the Respondent:	Mr David McLaren
Solicitors for the Respondent:	Minter Ellison

Exhibit No	Exhibit’s Description
R1	Collated volume of ‘GD’ lodged on 16 November 2021
A1	Report by Anna Perry, Counsellor, Queensland Program of Assistance to Survivors of Torture and Trauma (QPASTT) dated 7 January 2022
A2	The United Nations High Commission for Refugees, Briefing Note, 4 November 2014, ‘Violent incidents at Kenya’s Kakuma Refugee camp claim eight lives over past week’
A3	The United Nations High Commission for Refugees Global Report 2010
A4	Article by Michael Farrell (National Drug and Alcohol Research Centre) at the University of New South Wales, and Rebecca McKetin at the Australian National University, dated 10 June 2015
A5	Department of Foreign Affairs and Trade (DFAT) Country Information Report on Ethiopia dated 12 August 2020
A6	United States Department of State Human Rights Report on Ethiopia 2020
A7	Commonwealth Ombudsman, Inquiry into Immigration Detention in Australia, Submission No.126 (August 2008)
A8	M Werthen et al, ‘The impact of immigration detention on mental health: a systematic review’ (2018) 18 BMC Psychiatry
A9	Commonwealth Ombudsman, Suicide and Self-harm in the Immigration Detention Network, May 2013