Mohammed Sirad and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 124
•13 January 2025
Mohammed Sirad and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 124 (13 January 2025)
Applicant:Abdi-Kais Mohammed Sirad
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/8609
Tribunal:General Member Cosgrave (second review)
Place:Brisbane
Date of Decision: 13 January 2025
Date of Reasons: 21 February 2025
Decision:The Tribunal sets aside the decision under review.
................[Sgnd]............................................
General Member Cosgrave
Catchwords
MIGRATION – Class XB Subclass 200 Refugee visa cancellation –failure to pass good character test – whether there is another reason to set aside the mandatory visa cancellation – Unlawful use of motor vehicles aircraft or vessels - Enter premises and commit indictable offence by break - Enter premises with intent - Attempted enter dwelling with intent by break at night – Ministerial Direction No. 110
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024)
Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dharma and Minister for Home Affairs [2018] AATA 2757
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
AATA 3246
Holloway V Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Pavey and Minister for Home Affairs [2019] AATA 4198
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
QKVH and Minister for Home Affairs [2020] AATA 4431
Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888
Rana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons
INTRODUCTION
Mr Sirad is seeking review of the Minister’s (the Minister or the Respondent) delegate’s 21 October 2024 decision (the reviewable decision) not to revoke the mandatory cancellation of his Class XB Subclass 200 Refugee visa (the Visa).[1]
[1] Exhibit G: G2, 18.
The hearing was held in Brisbane on 6, 7 and 13 January 2025. Ms Ozherelyeva of Samuta McComber Lawyers represented Mr Sirad. Mr Zheng of Clayton Utz represented the Respondent.
The Tribunal commends both lawyers, especially Mr Zheng, for their skill and expertise as well as the quality of their submissions in this matter.
This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (the Act), the Tribunal was effectively required to make a decision by 13 January 2025. On 13 January 2025, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Sirad is a twenty-one year old[4] Somali citizen who has resided in Australia since October 2015.[5]
[4] Exhibit G: G2, 78.
[5] Exhibit G: G2, 327.
On 16 December 2022 Mr Sirad was sentenced to an eighteen-month concurrent sentence of imprisonment after his conviction for Unlawful use of motor vehicles aircraft or vessels (five counts), Enter premises and commit indictable offence by break (three counts), Enter premises with intent, and Attempted enter dwelling with intent by break at night (the Index Offences).[6]
[6] Exhibit G:G2, 79.
On 14 August 2023 his Visa was cancelled under s 501(3A) of the Act.[7]
[7] Exhibit G:G2, 56.
On 31 August 2023 he made representations seeking revocation of the cancellation of his Visa.[8]
[8] Exhibit G:G2, 56.
On 21 October 2024 a delegate of the Respondent decided, applying s 501CA(4), not to revoke the cancellation decision (the reviewable decision).[9] On the same date, a delegate of the respondent granted Mr Sirad a Bridging R (WR-070) visa (BVR). Mr Sirad was also released from immigration detention.
[9] Exhibit G: G2, 54.
On 28 October 2024 he lodged an application with the Tribunal for review of the delegate’s decision.[10]
[10] Exhibit G: G1, 4.
LEGAL FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Under s 501CA(4) of the Act, the Respondent may revoke a visa cancellation decision if:
(a)representations have been made by the person in accordance with the invitation;[11] and
(b)the Respondent is satisfied that:
(i)the person passes the character test;[12] or
(ii)there is another reason why the original decision should be revoked.[13]
[11] Pursuant to s 501CA(4)(a) of the Act.
[12] Pursuant to s 501CA(4)(b)(i) of the Act.
[13] Pursuant to s 501CA(4)(b)(ii) of the Act.
The Tribunal is satisfied that Mr Sirad made the representations required by s 501CA(4)(a).[14]
[14] Exhibit G: G1, 4.
THE TRIBUNAL’S TASK
Mr Sirad’s Visa was cancelled because the delegate considered that he failed the character test, defined in s 501, as required under s 501CA(4)(b)(i). The Tribunal is also satisfied, based on his criminal record, that he does not pass the character test set out in s 501(6)(a).[15]
[15] Exhibit R1: G6, 43.
Section 501CA(4) describes the Tribunal’s task.[16] When the Tribunal assesses and considers the factors weighing for and against whether there is another reason to set aside a visa cancellation, section 499(2A) of the Act requires it to comply with Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[17]
[16] Minister for Immigration and Border Protection v Makasa [2021] HCA 1.
[17] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 [38].
Paragraph 5.2 of the Direction sets out principles that provide a framework to assist the Tribunal in approaching its task.[18]
[18] Direction: [5.2].
Paragraph 6 of the Direction provides that, informed by the Direction’s principles, a
decision-maker must consider the Primary and Other Considerations articulated in Paragraphs 8 and 9 of the Direction where relevant to their decision‑making.
The Direction requires the Tribunal to take the Primary and Other Considerations into account. Primary Consideration 1 is generally to be given greater weight than other primary considerations.[19]
[19] Direction: [7(2)].
Paragraph 8 of the Direction specifies the following primary considerations:
(1) the 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.
(5) the expectations of the Australian community.
Paragraph 9 of the Direction sets out the other considerations to be assessed where relevant:
(a)the legal consequences of the decision.
(b)the extent of impediments if removed.
(c)the impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[20] The weighing process is substantively left to the individual decision‑maker exercising the relevant power under section 501 of the Act.[21]
[20] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[21] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’. The Tribunal heard testimony from Mr Sirad, his mother Ms Abdia Barre Elmi, his sister Ms Elba Ibrahim and Ms Perry of QPASTT.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
When considering Primary Consideration 1, the Direction mandates that the Tribunal is to be mindful that the Australian government’s highest priority is the Australian community’s safety. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Serious conduct includes behaviour or conduct that does not constitute a criminal offence.
In addressing Primary Consideration 1, the Tribunal has relied on the evidence and testimony to consider the nature and seriousness of Mr Sirad’s conduct to date in terms of the factors set out in paragraph 8.1 of the Direction.
When doing this, the Tribunal must also take into account the Direction’s stated principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.[22]
[22] Direction: [5.2(1)]
Paragraph 8.1(2) of the Direction requires decision-makers to address and consider two limbs of inquiry in considering Primary Consideration 1:
(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.
Paragraph 8.1.1: The Nature and Seriousness of Mr Sirad’s Conduct to Date
Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) that the Tribunal must assess, where relevant, in considering the nature and seriousness of Mr Sirad’s criminal offending or other conduct to date.
Summarising Mr Zheng’s contentions on this paragraph:[23]
(a)Mr Sirad has been convicted of 46 different offenses between 2021 and 2023, including break and enter incidents, property crimes, breaches of orders, drug offences, and traffic violations.
(b)The Respondent acknowledges that Mr Sirad’s convictions do not fall within the scope of conduct that must be viewed very seriously or seriously under paragraphs 8.1.1(a) and (b) of the Direction. However, noting that these paragraphs are not stipulated to be exhaustive, the Respondent contends that these offences should be viewed seriously for several reasons. First, Mr Sirad’s break-and-enter offenses significantly impact community members' right to feel safe and secure in their property. Second, his traffic evasion offense poses serious risks to both road users and law enforcement. Third, his repeated breaches of judicial orders demonstrate a disregard for lawful authority.
(c)Of particular concern is Mr Sirad’s association with local criminals and possible connection to the Southside Drillas Gang. The Respondent contends that these connections could cause the wider community to fear for its safety.
(d)Mr Sirad received various concurrent and cumulative prison terms, including twelve months for fraud and stealing, three months for drug possession and trespassing, eight months for vehicle theft and breaking and entering, and additional one-month terms for various other offences. The Respondent emphasises that imprisonment sentences, as the last resort in sentencing hierarchy, reflect these crimes’ serious nature.
(e)The frequency and pattern of Mr Sirad’s offending is particularly noteworthy. Despite receiving what was described as an "amazingly lenient sentence" of two years' probation in March 2022, Mr Sirad committed numerous additional offenses in July and August 2022 while still on probation. Furthermore, after being released on parole in March 2023, he re-offended in June 2023, demonstrating a concerning pattern of repeated criminal behaviour that the Respondent argues has a significant cumulative negative impact on community safety and property rights.
[23] Exhibit R1: [20] – [25].
Summarising Ms Ozherelyeva’s contentions on this paragraph:[24]
(a)Ms Ozherelyeva contends that Mr Sirad’s criminal history should fall into a less severe or serious category, as it does not involve violent crimes, sexual offenses, family violence, or crimes against vulnerable populations. She emphasises that none of Mr Sirad’s offenses were premeditated but were rather opportunistic, which she attributes to his youth and immaturity.
(b)His sentencing history shows a progression from non-custodial sentences to imprisonment. Initially, he received two years' probation and 150 hours of community service in March 2022, subsequently characterised as "amazingly lenient" by the sentencing magistrate. Upon re-sentencing in December 2022, His Honour Magistrate Shearer imposed eighteen months imprisonment with a requirement to serve six months before parole. Ms Ozherelyeva contends that the non-custodial sentences imposed across various dates indicate a relatively low objective seriousness of the offenses.
(c)In terms of the pattern and frequency of offending, Mr Sirad’s criminal activity occurred in three distinct periods between October 2021 and June 2023: October-November 2021, July-September 2022, and June 2023. Ms Ozherelyeva acknowledges the frequency of his offending within this timeframe but argues that the sporadic nature and limited duration of his criminal behavior should minimise its weight in consideration.
(d)Ms Ozherelyeva strongly contests the allegations that Mr Sirad was or is a member in the Southside Drillas Gang (SSD). She contends that this association is based on unsubstantiated interpretations of the terms "local criminals" and "crew" used during sentencing. She maintains that accepting such allegations without concrete evidence is inappropriate, particularly given that the sentencing magistrate’s reference to "crew" mentioned only two members, contradicting descriptions of the SSD as a larger organisation.
(e)Addressing the impact of Mr Sirad’s offending on its victims and the cumulative impact of the offending, Ms Ozherelyeva notes the absence of direct evidence and characterises the Respondent’s statements about victim impact as speculative. While acknowledging the cumulative effect of multiple offenses, she contends that the relatively low severity of the individual offences and the lack of a clear pattern of escalating seriousness should mitigate the Tribunal’s overall assessment of the cumulative impact.
(f)Ms Ozherelyeva contends that Mr Sirad has never received a formal warning about the immigration consequences of further offending. She further emphasises that Mr Sirad’s guilty pleas should not be interpreted as endorsements of the sentencing judge’s characterisations made during sentencing, especially regarding gang associations.
[24] Exhibit A1: [34] – [54]
Tribunal’s consideration: The nature and seriousness of Mr Sirad’s conduct
When assessing the nature and seriousness of Mr Sirad’s criminal offending or other conduct to date and determining whether it is serious or very serious, the following elements of paragraph 8.1.1(1) are enlivened:
·the nature and seriousness of his criminal offending or other conduct to date;[25]
·the sentences imposed for his criminal offending;[26]
·the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available, and Mr Sirad has been afforded procedural fairness;[27]
·the frequency of his offending and the trend of increasing seriousness; and[28]
·the cumulative effect of his repeated offending.[29]
[25] Direction: [8.1.1(1)(a) and (b)].
[26] Direction: [8.1.1(1)(c)].
[27] Direction: [8.1.1(1)(d)]
[28] Direction: [8.1.1(1)(e)].
[29] Direction: [8.1.1(1)(f)].
Evaluating the evidence about the Index Offences through the lens of paragraphs 8.1.1(1)(a) and (b)[30], the Tribunal finds that Mr Sirad’s offending does not enliven paragraph 8.1.1(1)(a) and does not enliven any of the non-exhaustive examples set out in paragraph 8.1.1(1)(b).
[30] Exhibit G: G2, 84-100.
Addressing paragraph 8.1.1(1)(c), Mr Sirad was sentenced to several terms of imprisonment. While noting Ms Ozherelyeva’s contentions here, the Tribunal’s evaluation and assessment of the evidence aligns with the Respondent’s contentions on this paragraph. The trajectory of Mr Sirad’s sentences leading to multiple terms of imprisonment are indicative of the valence of Mr Sirad’s offending. This valence is tempered by what the Tribunal observes as the whipsawing in terms of severity between the 2022 sentencing and the 2023 sentencing and also by the non-custodial sentences Mr Sirad received.
Addressing paragraph 8.1.1(1)(d), there is no evidence before the Tribunal. Aside from the impositions and risks Mr Sirad’s offending posed to the community, this paragraph does not add to the finding that Mr Sirad’s offending was serious. There is no evidence before the Tribunal that Mr Sirad’s offending caused harm.
Addressing paragraph 8.1.1(1)(e), an analysis of Mr Sirad’s criminal record suggests clusters of frequent offending between 2021 and 2023 rather than a coherent overall frequency.[31] The clusters support a finding that his offending is serious, tempered by the gaps between these clusters when he was in the community.
[31] Exhibit G: G2, 84-87.
Addressing paragraph 8.1.1(1)(f), there is no evidence on the cumulative effect of Mr Sirad’s offending. It is reasonable to assess that his offending has imposed compounding costs on Queensland’s police and judicial systems. This offers some support for the finding that Mr Sirad’s offending was serious.
Based on Mr Sirad’s evidence and testimony and the Respondent’s concessions, the Tribunal does not consider it likely that Mr Sirad was or is a member of the Southside Drillas Gang.[32]
Tribunal’s finding: The nature and seriousness of Mr Sirad’s conduct.
[32] Exhibit G: G2, 613.
The Tribunal has sought above to apply and consider each of the relevant subparagraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred to above and after a holistic consideration of Mr Sirad’s offending and the relevant elements of this Primary Consideration, the Tribunal finds that Mr Sirad’s criminal offending and other conduct should be characterised as serious but tempers this as described above.
Paragraph 8.1.2: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Addressing the second limb of Primary Consideration 1 and summarising paragraph 8.1.2 of the Direction:
(a)In considering the need to protect the Australian community, the Tribunal should consider that the Australian community is less willing to accept any risk of harm if the potential harm is serious. If certain actions are very harmful, even the possibility of them happening again may be too much of a risk to accept.
(b)When deciding whether a non-citizen poses a risk to the community, decision‑makers should consider:
i.How serious the resulting harm would be if the non-citizen committed another serious crime or engaged in serious conduct.
ii.How likely it is that the non-citizen will commit another crime, looking at:
·Evidence of how likely they are to re-offend.
·Any rehabilitation they have undergone by the time of the decision, and how long they have been out of trouble.
(c)The task in assessing this limb of Primary Consideration 1 is to carefully weigh the seriousness of possible harm, the likelihood of re-offending, and any evidence of change when making decisions about the risk a non‑citizen poses to the community.
Both Mr Zheng and Ms Ozherelyeva made extensive, thoughtful and nuanced submissions on this limb which were appropriate given this matter’s detailed context.
Summarising Ms Ozherelyeva’s submissions in the Applicant’s Statement of Facts, Issues and Contentions and the Applicant’s Reply:[33]
[33] Exhibit A1: [64] – [78]; Exhibit A3: [11] – [19].
(a)The Applicant concedes that the potential harm from any future re-offending would be serious, specifically in terms of offences against property or involving fraud. The Applicant also concedes the seriousness of the possible potential harm to individuals. However, the Applicant contends that any future offending would likely be less serious than the index offending.
(b)The Applicant contends that there are several factors that should influence the Tribunal’s assessment of his likelihood of re-offending:
i.His current risk of re-offending should be classed at the ‘lower end of low’ because of:
a. He did not offend between his 2015 arrival in 2015 and his first offending in 2021.
b. He has not re-offended since his release into the community on 21 October 2024.
c. He has completed thirty-eight rehabilitative programs addressing drug use, PTSD, and employment prospects
d. He is engaged with counselling and support services
ii.The Applicant’s circumstances raise several mitigating factors in evaluating his current likelihood of re-offending:
a. He is relatively young, being twenty-one now and twenty at the time of the Index Offences.
b. He has a speech impediment and possible PTSD.[34]
[34] Exhibit G: G2, 215-220. This is a February 2024 Queensland Program of Assistance to Survivors of Torture and Trauma (QPASTT) report. It and the December 2024 QPASTT report (Exhibit A2: ATB1) report communication difficulties, a possible speech impediment and also report symptoms of PTSD but do not diagnose PTSD.
c. He has faced educational challenges and developmental issues.
d. He now has recent access to professional support through QPASTT.
e. He now has experience of the deterrent effect of imprisonment.
iii.There are protective factors present which mitigate or reduce his re-offending risk:
a. He has employment prospects with Citywide Paving and Excavation.
b. He has a strong family support network in Australia
c. The Somali Community Association of Queensland has engaged with him and is supporting him.
d. He is accessing ongoing professional support and counselling.
e. He is making plans to return to his studies.
(c)The Applicant contends that the Tribunal should adopt a nuanced interpretation of his re-offending risk that:
i.Acknowledges the serious nature of the potential harm if he re-offends but asserts that there is a greater likelihood of lesser severity in any future re-offending
ii.Evidences his significant rehabilitation progress.
iii.Illuminates the substantial dynamic protective factors now available to him that reduce his re-offending risk.
iv.Emphasises the impact of recent changes to his personal circumstances and improved access to appropriate support services.
(d)While an inherent risk exists (as with all individuals), the Applicant's current risk level is at the "lower end of low" when considering all factors cumulatively, particularly given recent rehabilitation efforts and support system development.
Summarising Mr Zheng’s submissions in the Respondent’s Statement of Facts, Issues and Contentions:
(a)The Respondent identifies several serious potential harms if the Applicant re-offends:
i.Financial harm to community members through property offences
ii.The psychological impact on victims of unlawful entry and property interference offences.
iii.General community safety concerns from property-related crimes
iv.Physical safety risks to road users and law enforcement if the Applicant continues to commit driving offences.
(b)The Respondent consequently assesses the potential harms as serious.
(c)The Respondent contends that the Applicant has an elevated risk of re-offending, drawing on the evidence in this matter:
i.The 7 March 2022 Queensland Corrective Services assessment scored 13/20, indicating that Applicant posed a medium risk.[35]
[35] Exhibit R2: SM2.
ii.Once the Applicant turned eighteen, he began a history of repeat offending.
iii.The Applicant continued offending while on probation and after parole release.
iv.He appears to have committed a drug offence while attending court on 16 September 2022.
v.His history of complying with community supervision orders is poor.
vi.The sentencing judge's assessment of the Applicant indicated no prospect of rehabilitation.
(d)The Respondent challenges the significance of the Applicant’s rehabilitation efforts by noting:
i.The programs he has completed were general in nature rather than offence-specific or focused on the causes of his offending.
ii.Many of these programs were of short duration.
iii.His rehabilitation’s effectiveness remains untested in the community.
iv.The timing of his record of completing programs post-visa cancellation raises concerns about his motivation and authenticity of his commitment.
(e)The Respondent acknowledges the Applicant’s protective factors but contends that they should be minimised. The Respondent validly queries the substance of the Citywide Paving and Excavation employment offer, noting that the author is unnamed and the offer undated. The Respondent observes that the Applicant’s family support network existed during his offending and consequently should only be given limited weight.
(f)The Respondent concludes with the contentions that the Applicant presents a medium risk of reoffending based on correctional assessment. Given the serious nature of the potential harms if he re-offends, this risk level is deemed unacceptable. Previous interventions and support systems have proven ineffective at preventing his offending and his current rehabilitation efforts should be viewed with scepticism due to their timing and the specificity concerns noted above.
(g)Based on these factors, the Respondent recommends against setting the reviewable decision aside, contending that this Primary Consideration strongly supports maintaining the cancellation.
Tribunal’s finding: The nature of the harm to individuals or the Australian community were Mr Sirad to engage in further criminal or other serious conduct
The evidence and testimony before the Tribunal enable the Tribunal to infer and find that, if Mr Sirad is allowed to remain in Australia and then engages in further criminal or other serious conduct of the types he has previously committed or executed, the result may involve physical harm to the potential individual victims, impose psychological and financial costs, and create greater community insecurity around safety. If Mr Sirad continued to commit driving offences, there are significant physical risks to other road users. The Tribunal finds that the nature of the harm to individuals or the Australian community if Mr Sirad engaged in further future criminal or other serious conduct is serious but at the lower end in terms of the degree of seriousness.
Tribunal’s consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct.
In assessing the likelihood or risk of Mr Sirad engaging in further criminal or serious conduct, the Tribunal has considered the relevant testimony and evidence, first from the individual and specific lenses of his risk factors, his risk management factors, his rehabilitation efforts, his release plans and his demonstrations of remorse. Second, it then holistically assessed what it has drawn from this exercise to reach its findings on this limb of the Primary Consideration against the legal framework summarised below.
The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) established the threshold of "a risk" rather than "significant risk" for character assessments.[36] While the Explanatory Memorandum to the statute clarifies that this requires more than minimal or trivial likelihood, the Australian Government's position is that community tolerance for future harm diminishes proportionately as the potential seriousness of that harm increases. Some conduct is considered so serious that any risk of recurrence may be deemed unacceptable.
[36] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The assessment of risk under this Primary Consideration requires a cumulative evaluation of three interconnected components:
(a)The Tribunal must first evaluate the nature of potential harm to individuals, or the Australian community should the non-citizen engage in further criminal or serious conduct. This assessment, dealt with in part above, considers:
i.The type and severity of potential harm to individuals, groups, or institutions if Mr Sirad were to re-offend.
ii.Whether his conduct is of such gravity that any risk of recurrence would be unacceptable.
iii.The relationship between the seriousness of potential harm and the community's risk tolerance.
(b)The Tribunal must determine the likelihood of Mr Sirad’s re-offending as at the time of its decision, considering:
i.All available information and evidence before the Tribunal regarding Mr Sirad’s re-offending risk.
ii.The evidence of the rehabilitation achieved by Mr Sirad as at the decision date.
iii.Mr Sirad’s time in the community since his most recent offending (in 2022).
iv.The relationship between the potential harm’s severity and the community’s acceptable risk thresholds.
(c)This assessment must account for both Mr Sirad’s character, illuminated by his conduct (per Baker[37]) and the salience and pattern of his past offending as indicators, not predictors, of likelihood and probability (per Guo[38])
[37] Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
[38] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
In undertaking this task, the Tribunal should seek to:
(a)evaluate the nature and severity of the potential harm that could result if Mr Sirad re-offends.
(b)assess whether there is more than a minimal likelihood of risk of his re-offending.
(c)consider both probability and consequences of his re-offending.
(d)give appropriate weight to evidence of his rehabilitation and time in the general community.
(e)Evaluate the extent to which any identified risk level intersects with community tolerance thresholds.
(f)make a final determination without delaying for Mr Sirad to complete any outstanding rehabilitation programs.
This framework maintains alignment with Her Honour Justice Mortimer's (as she then was) approach in Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], [39] while incorporating the Australian Government's position on risk tolerance.
[39] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
The Tribunal has found above that the likely harm resulting from Mr Sirad re-offending would be serious. The Tribunal will now evaluate what his likelihood of re-offending is.
The Tribunal’s assessment must ultimately determine whether any identified likelihood or risk falls within acceptable parameters for community tolerance, recognising that this threshold becomes proportionately more stringent as the potential harm’s severity increases. This assessment will involve identifying and evaluating factors that either facilitate the risk of re-offending or alternatively hinder or retard that risk.
Factors that facilitate the risk of re-offending
The Tribunal observed Mr Sirad giving testimony. In translating his answers from Somali to English, the interpreter advised the Tribunal that Mr Sirad’s Somali was worse than his English. It was apparent to the Tribunal that Mr Sirad has a speech impairment and possibly also a developmental impairment. [40]
[40] Exhibit G: G2, 612.
These, in conjunction with his age at the time of his offending, appear to the Tribunal to have been unwitting contributing factors in his offending. At one point in her testimony, his sister Ms Elba Ibrahim stated that when he was younger and offending, the only English word he knew was “Yes”. This is corroborated to an extent by the 15 February 2024 QPASTT report which records:[41]
“Through further exploration of Mr Mohammed Sirad's history and current situation, he has disclosed experiencing significant difficulties with verbal communication from early childhood in Eritrea, and has stated that when he arrived in Australia at the age of 11 or 12 in 2015, his speech was limited to four words.”
[41] Exhibit G: G2, 517.
It is possible to conceive how the use of that word may have affected his offending and his interactions with the police and the courts. An example of this occurs in the sentencing magistrate’s remarks:[42]
“MR BHARDWAJ: True, but as your Honour would have observed, he – response is somewhat delayed, and your Honour – your Honour could gauge that there is a medical condition which – not - - -
HIS HONOUR: Not - - -
MR BHARDWAJ: - - - been addressed.
HIS HONOUR: Not necessarily. I can’t - - -
MR BHARDWAJ: Yes.
HIS HONOUR: I can’t draw that inference at all. He might just be stupid, for all I know. It doesn’t mean that there’s a medical problem or anything like that. I mean - - -
MR BHARDWAJ: I – I’m just trying to put - - -
HIS HONOUR: Let’s be real. I mean, there aren’t too many criminals that come through here that one would think have an IQ exceed 60 or 70 at best. Most of them 30 are dumb. That’s why they’re criminals to begin with. So just because he’s a bit slow doesn’t mean that he’s retarded or has some medical condition, and certainly, with no evidence - - - “
[42] Exhibit G: G2, 93.
In addition to the above, the Tribunal considers that the other relevant facilitating factors here are the anti-social contacts Mr Sirad appeared to be involved with as a result of attending Yeronga State High School, his use of alcohol and drugs, his low level of engagement with secondary education at that time evidenced by his consequential departure from Yeronga State High School and what appears historically to have been less that complete support from his family.[43]
[43] Exhibit G: G2, 201.
Rehabilitation and Factors that hinder or retard the risk of re-offending
It is clear to the Tribunal that Mr Sirad has embarked on a significant personal program of formal rehabilitation by undertaking and completing multiple courses. Some, but not all, of these efforts are clearly directed at addressing his drug addiction.[44] Viewed together they indicate an individual who is both trying to learn about and address the causes of his offending and also prepare for a more productive life. The Tribunal notes the Respondent’s contention on this point but assesses that Mr Sirad’s rehabilitation study and work here demonstrates not just an effort to address his issues with drugs and alcohol, but also evidences his recognition of the gaps in his education and an effort to improve himself.
[44] Exhibit G: G2, 240-248, 289-290, 293-294, 298-305, 314-319.
He is also addressing his PTSD symptoms, although the Tribunal acknowledges that Ms Perry conceded she is not qualified to diagnose PTSD.[45]
[45] Exhibit A2: ATB1.
Since his release from detention, he has lived in the community and has not re-offended, despite the Queensland Corrective Services risk assessment and in contrast to his earlier poor compliance with court orders. He also appears to have maintained his sobriety while in the community. In a change from their historical record, the evidence and testimony from his family suggests a significantly enhanced level of supervision, protection and support as well as a recognition of his impairments. The Tribunal also considers that the Somali Community Association of Queensland Inc’s involvement with Mr Sirad hinders his risk of re-offending and offers him pro-social contacts.[46]
[46] Exhibit G: G2, 225-226.
The Tribunal observes that Mr Sirad’s BVR limits what he can engage in while in the community and that it may hinder his rehabilitation efforts.
Reviewing the other factors noted above that facilitate his risk of re-offending, Mr Sirad is receiving counselling,[47] his impairments are acknowledged, and he no longer associates with antisocial contacts
[47] Exhibit A2: ATB1.
Risk Analysis and Consideration
As noted, the Tribunal has considered the evidence as to the likelihood of Mr Sirad re-offending above, especially Mr Sirad’s offending record, his statements and evidence regarding his rehabilitation efforts, in terms of the elements of paragraph 8.1.2(b) of the Direction. It has approached this task by looking at the factors that either may facilitate re-offending or hinder it.
When undertaking this consideration, it has applied Guo in terms of the qualified extent to which past events or conduct are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
The Tribunal has then considered what the combination of his offending and his displays of remorse say about his character, as well as assessing whether the consequences of his potential offending in future are likely to be unacceptable to the Australian community.
While the harm that may result from any future re-offending is serious, the Tribunal assesses that Mr Sirad’s rehabilitation and other risk management factors that can hinder his re-offending and which are identified above significantly outweigh the factors that may facilitate re-offending. Mr Sirad now has insight into those aspects of his character such as poor decision-making, alcohol and drugs that facilitated the risk and has tools available to him to address and manage these. The Tribunal considers that the Australian community’s risk tolerance would accept Mr Sirad’s likelihood of re-offending.
Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal assesses that Mr Sirad’s protective factors and rehabilitation efforts outweigh or replace the factors that facilitate the risk of his reoffending. The Tribunal finds that the risk to the Australian community should Mr Sirad commit further offences or engage in other serious conduct exists, but that it is a small to negligible risk.
Primary Consideration 1 Conclusions: Protection of the Australian community
The Tribunal finds that Mr Sirad’s offending is serious, that the consequences of any such future offending are likely to be serious and that the likelihood of his re-offending is greatly reduced.
The Tribunal further finds that, after combining its findings, this consideration carries moderate weight in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
There is no evidence that Mr Sirad has engaged in family violence conduct and therefore this consideration should be neutral.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction directs the Tribunal to consider any impact of its decision in relation to the Visa on Mr Sirad’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.
The Tribunal is directed to also consider the strength, nature and duration of any other ties that Mr Sirad has to the Australian community, having regard to:[48]
[48] Direction; [8.3(2)].
(a)how long he has resided in Australia, including whether he arrived as a young child, noting that:
(i)less weight should be given where he began offending soon after arriving in Australia; and
i.more weight should be given to time he has spent contributing positively to the Australian community
b.the strength, duration and nature of any family or social links he has with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Summarising Mr Zheng’s contentions on this consideration:[49]
(a)The Respondent acknowledges that Mr Sirad’s family relationships - including with his mother, siblings, and extended family members - would be affected by the Tribunal affirming the Reviewable Decision.
(b)However, the Respondent contends that since Mr Sirad has been granted a Bridging Visa R (BVR) since his release from detention and will not face immediate removal from Australia, the impact on his family members would be limited.
(c)While recognising Mr Sirad’s loving family relationships and his role with his niece and nephews, the Respondent calls the Tribunal’s attention to the absence of references or statements from his extended family.
(d)Regarding community ties, while acknowledging Mr Sirad’s relatively long residence in Australia since arriving as a twelve year old in 2015, the Respondent emphasises that Mr Sirad’s adult life has been largely characterised by criminal offending or by periods in custody.
(e)The Respondent notes his lack of employment history and his limited connections to the broader Australian community beyond his family relationships.
(f)As Mr Sirad will not face removal due to the BVR, the Respondent concludes that this Primary Consideration should be given very limited weight in favour of setting the reviewable decision aside. This contention seeks to balance Mr Sirad’s significant family ties against his limited broader community engagement and the practical implications of his current visa status.
[49] Exhibit R1: [38] – [41].
Collating and summarising Ms Ozherelyeva’s contentions:[50]
(a)Mr Sirad has lived in Australia since 2015, arriving as a twelve year old after being born and raised in an Eritrean refugee camp. Australia represents the first place where he established meaningful ties through formal education, stable housing, and genuine social connections.
(b)His immediate family consists of his mother, two brothers, and six sisters, all of whom are either Australian citizens or permanent residents. His mother describes him as a "pillar of support" and believes in his capacity for redemption. He also has strong relationships with his niece and nephews, for whom he has provided significant care and support.
(c)There are three key factors that should weigh decisively in favour of setting aside the reviewable decision: his arrival in Australia during childhood, the presence of his entire immediate family as permanent residents or Australian citizens in Australia, and the detrimental impact deportation would have on his family members.
[50] Exhibit A1: [84] – [95].
The Tribunal now considers these contentions, the evidence and Mr Sirad’s testimony through the lens of each subparagraph in paragraph 8.3.
Paragraph 8.3(1)
Subject to the following being either Australian citizens, permanent residents or having the right to remain in Australia indefinitely, the Tribunal finds that Mr Sirad’s immediate family, consists of his mother, Ms Abdia Barre Elmi, his two brothers, his six sisters, one niece and six nephews, all of whom are minors. The Tribunal accepts that the adult members of Mr Sirad’s immediate family are Australian citizens, Australian permanent residents or have a right to remain in Australia indefinitely.
Based on an evaluation of the evidence, the Tribunal considers that it can infer that a decision to affirm the reviewable decision will likely have adverse or negative emotional or psychological impact on each of these people, especially the minor children and Ms Abdia Barre Elmi.
Without further evidence difficult to assess the magnitude of these individual impacts but assesses that they would likely be substantial.
The Tribunal considers and finds that paragraph 8.3(1) carries a strong weight in favour of setting the reviewable decision aside.
Paragraph 8.3(2)(a)
Mr Sirad arrived in Australia at the age of twelve in 2015[51] and has resided here since then for approximately nine and half years. His first conviction, for possessing dangerous drugs, occurred in November 2021.[52] The Tribunal considers and finds that Mr Sirad has resided in Australia for approximately 45% of his life and that he did not begin offending soon after arriving in Australia.
[51] Exhibit G1: G2, 627.
[52] Exhibit G1: G2, 82.
Mr Sirad does not appear, based on the evidence and testimony before the Tribunal, to have made significant positive contributions to the broader Australian community beyond contributing to his immediate family settling into the Australian community since he arrived.
The Tribunal considers and finds that paragraph 8.3(2)(a) carries a moderate weight in favour of setting the reviewable decision aside.
Paragraph 8.3(2)(b)
The Tribunal has evaluated the evidence and testimony and finds that the strength, duration and nature of Mr Sirad’s ties to Australia in terms of family or social links with Australian citizens, permanent residents or people having the right to remain in Australia is strong in terms of his family but weaker in regard to social links outside his family. This may be attributed to his issues with communication, but it does diminish the weight attributable to this paragraph.
The Tribunal considers and finds that paragraph 8.3(2)(b) carries modest weight in favour of setting the reviewable decision aside.
Tribunal’s Consideration
Holistically evaluating its separate assessments of the specific paragraphs in Primary Consideration 3 and the related evidence, the Tribunal considers that Mr Sirad has strong and continuing family ties (but not broader social links and community ties) with individuals in the Australian community.
The Tribunal acknowledges the Respondent’s arguments regarding the BVR, and that Mr Sirad will stay in Australia as a result of the BVR. However, the BVR’s conditions mean that Mr Sirad and his family face continual uncertainty as to whether in the future he will be removed, which would jeopardise and affect the familial ties.
Primary Consideration 3 Conclusion: The Strength, Nature and Duration of Ties to Australia.
Based on its consideration and findings against this Primary Consideration, the Tribunal finds that it favours setting the reviewable decision aside.
The Tribunal gives this consideration strong weight towards setting the reviewable decision aside.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
Paragraph 8.4(1) of the Direction necessitates an assessment to determine if setting the reviewable decision aside aligns with the best interest of any minor children in Australia who would be impacted by the decision.
Under this consideration, the Tribunal must assess whether affirming or setting aside the reviewable decision is in the best interests of a child affected by such a decision. This only applies if the child is under eighteen years old when the decision to set aside or affirm is made.
This Primary Consideration is enlivened by Mr Sirad’s minor niece and nephews. Ms Ozherelyeva states that three of the nephews are relevant for the purposes of Primary Consideration 4:[53]
[53] Exhibit A1: [98] – [99].
(a)Child A (aged five);
(b)Child B, (aged two); and
(c)Child C, (aged one).
Summarising Mr Zheng’s contentions on this consideration:[54]
[54] Exhibit R1: [42] – [44].
(a)While acknowledging Mr Sirad’s role in the care and upbringing of his sister's three children, the Respondent emphasises two key points: first, that these children remain under their parent(s)' care with no legal parental responsibility being attributed to Mr Sirad, and second, reiterating that Mr Sirad’s Bridging Visa R (BVR) status means he will not face immediate removal from Australia if the Tribunal affirms the reviewable decision.
(b)Based on these circumstances, particularly in terms of Mr Sirad’s current visa status preventing his immediate removal, the Respondent argues that a decision not to revoke the cancellation would have very limited impact on the best interests of the identified minor children in Australia.
(c)Consequently, the Respondent submits that this Primary Consideration should be given very limited weight in favour of setting the reviewable decision aside.
Summarising Ms Ozherelyeva’s contentions:[55]
[55] Exhibit A1: [96] – [102].
(a)The three identified minor children are the sons of Mr Sirad’s sister, Ms Ebla Ibrahim Aden. She has documented their strong relationship with Mr Sirad. She has noted the emotional impact of Mr Sirad’s imprisonment and detention on her children, emphasising the potential further emotional consequences of his deportation if the Tribunal affirms the reviewable decision.
(b)Preserving the familial relationship between Mr Sirad and these three minor children is crucial for the latter’s emotional and familial stability. While acknowledging that Mr Sirad does not serve in a parental capacity with respect to the three minor children, he wishes to emphasise his positive influence on the children and his supportive role in their care. Based on these factors, the submission contends that Primary Consideration 4 should be weighted significantly in favour of setting the reviewable decision aside.
When deciding what is in the child’s best interests, the Tribunal must consider how close the child is to the non-citizen, the non-citizen’s role as a parent, the impact of the non‑citizen’s past and future behaviour on the child, how separation would affect the child and whether the child has been hurt or abused by the non-citizen. The Tribunal should also consider the child's own views, depending on their age and maturity, if available.
There is no direct evidence from any of the identified minor children as to their views.
Tribunal’s consideration
In considering this paragraph, the Tribunal should give individual consideration to the best interests of each identified minor child to the extent that their interests may differ.
Acknowledging the evidence and testimony before it in addition to the Respondent’s contentions, the Tribunal makes the following points in its assessment of this consideration relative to paragraph 8.4(4) of the Direction.
The relationship between Mr Sirad and each of Child A, Child B and Child C is currently non-parental and Mr Sirad has been absent for periods of time due to incarceration or detention, which tempers the weight attributable to this consideration. The children’s ages also suggest that the duration of each relationship has neither been long nor continuous.
Apart from Mr Sirad’s and Ms Aden’s evidence and testimony, there is no corroborating evidence as to the extent that Mr Sirad is likely to play a familial role with the minor children in the future.
There is no evidence before the Tribunal suggesting that any of the minor children were exposed to Mr Sirad’s offending. [56]
[56] Exhibit R4: 1-29.
In relation to sub-paragraph 8.4(4)(d), the Respondent’s contention regarding Mr Sirad’s BVR mitigates the potential impact of separation but are themselves tempered by the conditions and the uncertainty the BVR imposes on Mr Sirad, his family and consequently the identified minor children.
Primary Consideration 4 Conclusion: Best interests of Minor Children in Australia affected by the decision
The Tribunal finds that that this Primary Consideration favours setting the reviewable decision aside and that this has significant weight in favour of such a finding.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction provides:
‘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 to the above, paragraph 8.5(2) of the Direction directs that a 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 in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Paragraph 8.5(2) also provides that 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 because of conduct, in Australia or elsewhere, of the following kinds:
(a)acts of family violence;
(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;
(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;
(f)worker exploitation.
Paragraph 8.5(3) provides that the Australian community’s expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(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.’
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[57]
[57] FYBR (2019) 272 FCR 454, 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation of a visa, but ‘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’.[58]
[58] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]– [303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[59]
[59] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
The High Court's decision in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 (‘Ismail’) further clarifies this Primary Consideration, specifically concerning the Tribunal’s assessment of Australian community expectations.
The High Court established in Ismail that when evaluating the weight to be given to community expectations, decision-makers are not required to attribute to the hypothetical Australian community any knowledge of the visa applicant's personal circumstances that may be known to the Tribunal.
Specifically, paragraph 8.5(4) explicitly directs decision-makers to refrain from making independent assessments of community expectations for individual cases. Instead, they must rely on the Australian Government's views as outlined in paragraphs 8.5(1)-(3) as the definitive expression of community expectations.
This normative standard, once established through reference to paragraphs 8.5(1)-(3), should then be weighed alongside other relevant considerations.
Observing the norm contained in paragraph 8.5, the Tribunal has also considered the guidance informed by the principles set out in paragraphs 5.2(1) to (8) of the Direction.
Subparagraph 5.2(5) uses the term ‘limited stay visa’, which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non‑permanent or ‘temporary’ visas.
Tribunal’s consideration
Mr Sirad’s Visa was a Class XB Subclass 200 Refugee visa until it was cancelled. This Visa allowed him to remain in Australia indefinitely and cannot be classified as a limited stay visa.[60] This implies that subparagraph 5.2(5)’s low tolerance with respect to a limited stay visa does not apply.
[60] Migration Regulations 1994: 010.611.
The Tribunal found under Primary Consideration 3 that Mr Sirad has few ties to the broader community and, acknowledging his age, has not significantly participated in or contributed to the Australian community. This suggests to the Tribunal that subparagraph 5.2(5)’s low tolerance with respect to non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time is enlivened.
Arriving in Australia as a twelve year old, Mr Sirad has resided here for approximately nine and a half years, or some 45% of his life. This enlivens paragraph 5.2(6)’s higher tolerance.
The Tribunal found that Mr Sirad’s criminal offending and other conduct should be characterised as serious but tempered this as described above. This engages paragraph 5.2(3) lower tolerance. The Tribunal does not consider that the Index Offences’ nature is such to engage paragraph 5.2(7).
The Tribunal is satisfied that Mr Sirad has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. The Australian community ‘as a norm’ expects the Australian Government not to allow him to remain in Australia. This expectation is modified by the higher tolerance assessed above.
Mr Zheng contends that the Australian community would expect that the Tribunal should affirm the reviewable decision is affirmed, given the persistent and frequent nature of Mr Sirad's offending, and the assessed unacceptable risk of his possible future criminal conduct. Based on these factors, the Respondent submits that Primary Consideration 5 should weigh heavily in favour of affirming the reviewable decision.[61]
[61] Exhibit R1: [45] – [47].
Ms Ozherelyeva contends that several factors should moderate the weight given to Primary Consideration 5 in terms of affirming the reviewable decision. These include Mr Sirad’s extended residency, substantial Australian connections, assessed low risk of recidivism, and significant rehabilitation efforts.[62]
[62] Exhibit A1: [103] – [116].
Primary Consideration 5 Conclusion: Expectations of the Australian community
Assessing the evidence of the nature of Mr Sirad’s convictions in terms of this Primary Consideration, the Tribunal concludes and finds that the Australian community would expect that he should not hold his original Visa, and that the Tribunal should affirm the reviewable decision.
Further, the Tribunal finds that this consideration carries a moderate weight in favour of affirming the reviewable decision in view of the countervailing factors identified above, including in terms of his familial connections but not his community connections.
OTHER CONSIDERATIONS
The Tribunal now considers each of the three subparagraphs (a), (b) and (c) set out in Other Considerations listed in paragraph 9 of the Direction.
OTHER CONSIDERATION (A): LEGAL CONSEQUENCES OF THE DECISION
Sections 189 and 198 of the Act provide, together, that unlawful non-citizens in the migration zone must be detained and removed from Australia as soon as reasonably practicable.
A non-citizen whose visa has been cancelled under s 501 of the Act is barred from applying for any visa other than a Protection visa or a Bridging R visa while in the migration zone.[63]
[63] Section 501E of the Act.
Mr Sirad’s Visa was not a protection visa, and he is not barred from applying for a protection visa. There is no evidence before the Tribunal that he has applied or sought such a visa.
Mr Sirad has not contended that he engages Australia’s protection obligations, nor does the information before the Tribunal indicate that non-refoulement obligations arise in relation to him.
It follows that a relevant legal consequence of affirming the reviewable decision is that he will remain in detention until he is removed from Australia. Once removed, he would be indefinitely excluded from Australia due to the Special Return Criteria in clause 5001(c) of Schedule 5 of the Migration Regulations 1994 (Cth) which prohibits the grant of a visa to person outside Australia whose visa has been cancelled under s 501and is a further relevant legal consequence.[64]
[64] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 per Feutrill J at [12]–[14]
Mr Zheng notes that Mr Sirad was granted a BVR on 12 October 2024 on the basis that the Respondent was of the view that there is no real prospect of Mr Sirad’s removal becoming reasonably practicable in the foreseeable future. In these circumstances, even if the Tribunal decides to affirm the reviewable decision, Mr Sirad will remain a lawful non-citizen in the Australian community and will not be subject to immigration detention nor removal from Australia. He will, however, be subject to the BVR’s conditions.[65]
[65] Exhibit R1: [49].
Mr Zheng then contends that, in circumstances where Mr Sirad will not be removed from Australia as a result of a decision to affirm the reviewable decision, very limited weight should be given to Other Consideration (a) in favour of setting the reviewable decision aside.
Ms Ozherelyeva notes that, as held in the Federal Court decision of Singh,[66] decision-makers cannot attribute neutral weight to this consideration merely because it is Parliament’s intended consequence. Instead, decision-makers are obligated to consider the immediate and direct statutory consequences of an adverse decision on Mr Sirad.[67] She contends that Other Consideration (a) favours setting the reviewable decision aside and that it carries ‘some’ weight.[68]
[66] Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273
[67] Exhibit A1: [120] – [122].
[68] Exhibit A1: [122].
Tribunal’s consideration
When the Tribunal considers whether to affirm a decision to cancel a visa under section 501CA(4) of the Act, it must consider the legal consequences of that decision as stated in paragraph 9.1 of the Direction. In this matter, this does not involve assessing the implications of Mr Sirad being removed from Australia as soon as reasonably practicable due to his BVR.
In NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1,[69] the Full Federal Court held that while the Respondent has broad discretion under the Act, the decision must still follow the legal framework set by the law. The Respondent – and the Tribunal – must consider the legal consequences referred to in the preceding paragraphs when making their respective decisions.
[69] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (‘NBMZ’) at [8], [9] and [153].
The Tribunal should approach this consideration in a logical and rational way, based on a correct understanding of the law, as the High Court emphasised in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582.[70]
[70] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (‘Plaintiff M1/2021’) at [25].
The Full Federal Court in Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146[71] stated that the Tribunal’s obligation is to consider “the direct and immediate statutorily prescribed consequences of the decision in contemplation”.[72] In this matter, that description encompasses the statutory consequences of a decision to affirm the reviewable decision. These consequences are that Mr Sirad will not be liable to be removed from Australia as soon as reasonably practicable nor would he face possible further detention. The Tribunal also has the discretion to decide how much weight these consequences should carry in its decision-making process.[73]
[71] Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146.
[72] Op.cit, [84].
[73] See Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 [33], [38].
The Tribunal has considered the evidence and testimony before it in assessing the legal consequences arising from either affirming or setting aside the reviewable decision.
The Tribunal finds that Other Consideration (a) favours setting the reviewable decision aside. It further finds that this Other Consideration carries moderate weight.
Other Consideration (a) Conclusion & Finding
This consideration favours setting the reviewable decision aside and carries moderate weight.
OTHER CONSIDERATION (B): EXTENT OF IMPEDIMENTS IF REMOVED
Paragraph 9.2(1) of the Direction provides:
Decision-makers must consider the extent of any impediments that the non-citizen 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.
Summarising Mr Zheng’s contentions:[74]
[74] Exhibit R1: [51] – [53].
(a)Mr Sirad has raised several concerns about hi potential return to Somalia - including his post-traumatic stress disorder, the limited healthcare availability, language and cultural barriers, and economic and security concerns.
(b)The Respondent notes that these considerations are effectively moot due to his current immigration status. Having been granted a BVR, he will not face removal from Australia regardless of the Tribunal’s decision.
(c)Given this circumstance, the Respondent argues that this Other Consideration should be given no weight in favour of revocation.
Summarising Ms Ozherelyeva’s contentions:[75]
[75] Exhibit A1: [123] – [132].
(a)Mr Sirad would face several significant challenges if deported to Somalia. Having arrived in Australia at a young age, he suffers from a speech impediment and PTSD from refugee camp experiences. His speech condition is particularly notable, as he did not begin speaking until twelve and there is no evidence of his proficiency in Somalian.
(b)Somalia is Africa's most impoverished and violent nation, with approximately 67% youth unemployment (as of 2019). There are legal precedents, including the 1994 Committee Against Torture matter of Sadiq Shek Elmi v Australia and a 2011 European Court of Human Rights decision, both of which found that deportation to Somalia could constitute inhuman treatment.
(c)Deporting Mr Sirad to Somalia could breach Australia's non-refoulement obligations under the Convention Against Torture. Given Somalia's limited healthcare system, economic instability, security concerns, and Mr Sirad’s lack of social support there, deportation would create significant practical, financial, and emotional hardships. Consequently, this consideration should weigh heavily in favour of setting aside the deportation decision.
Tribunal’s consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Sirad, if removed from Australia to Somalia, will face in establishing himself and maintaining basic living standards taking the specific factors below into account (in the context of what is generally available to other citizens of that country).
The phrase “in the context of what is generally available to other citizens of that country” in paragraph 9.2(1) of the Direction is significant because it sets the standard by which impediments may be measured for the purposes of deciding whether another reason exists to set aside the reviewable decision.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Sirad is twenty-one.
Mr Sirad appears to be in good physical health but has a speech impairment.
In assessing Mr Sirad’s mental health, the Tribunal has had specific regard to the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126,[76] and particularly paragraphs [12] – [14].
[76] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
In his statements and testimony, Mr Sirad asserts that he suffers from post-traumatic stress disorder. There is nothing before the Tribunal to suggest that there are treatment options for Mr Sirad in Somalia to address this. The Tribunal considers it more likely that life in Somalia may exacerbate Mr Sirad’s post-traumatic stress disorder.
Subparagraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Sirad, based on his testimony, the interpreter’s comments and the evidence before the Tribunal, would face significant linguistic difficulties if he returned to Somalia.
The Tribunal also considers that Mr Sirad would face significant cultural issues for both the same reason and because he has never lived in Somalia. He was born in an Eritrean refugee camp.
Subparagraph 9.2(1)(c) – any social, medical and/or economic support available to them in that country
The evidence before the Tribunal indicates that Mr Sirad would face a situation of no social, medical and economic support if he returns to Somalia.
Other Consideration (b) Conclusion & Finding
The Tribunal has considered above the extent of any impediments that Mr Sirad, if removed from Australia to Somalia, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1).
Having regard to the analysis referrable to each of the three subparagraph components of this Other Consideration (b), the Tribunal finds that Mr Sirad would likely face sustained and likely insurmountable issues in terms of communicating, establishing himself and achieving a basic living standard if he returned to Somalia.
These hardships and risks are tempered by his BVR.
After evaluating the evidence, the Tribunal finds that this consideration carries very strong weight in favour of setting aside the reviewable decision.
OTHER CONSIDERATION (C): IMPACT ON AUSTRALIAN BUSINESS INTERESTS
There is no evidence to suggest that Australian business interests would be affected if the Tribunal affirms the reviewable decision.
Other Consideration (c) Conclusion & Finding
The Tribunal finds that this Other Consideration carries neutral weight.
FINDINGS
The Tribunal has two issues to address:
(a)character test: whether there is a reasonable suspicion that Mr Sirad does not pass the character test in terms of s 501(6)(a), and whether Mr Sirad satisfies the Tribunal that he passes the character test,[77] and, if not,
[77] Section 501(2) of the Act.
(b)exercise of discretion: whether the Tribunal should not exercise its discretion conferred by s 501(2) to cancel Mr Sirad’ visa or whether there is ‘another reason’ to revoke the reviewable decision under s501CA(4).
The Tribunal found above that it was satisfied that Mr Sirad did not pass the character test after applying s 501(6)(a).
To determine whether there is ‘another reason’ to set aside the reviewable decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
Addressing Primary Consideration 1, the Tribunal found that Mr Sirad’s offending is serious but tempered, that the consequences of any such future offending are likely to be serious but that this likelihood is small to negligible. The Tribunal further finds that Primary Consideration 1 carries moderate weight in favour of affirming the reviewable decision. In doing so, the Tribunal acknowledges the Direction’s stated intent[78] that greater weight is generally to be given to this consideration and addresses this requirement below.
[78] Direction: [7(2)].
The Tribunal found that that Primary Consideration 2 is not enlivened and carries neutral weight.
The Tribunal found that Primary Consideration 3 carries strong weight towards setting the reviewable decision aside.
The Tribunal found that Primary Consideration 4 carries significant weight towards setting the reviewable decision aside.
The Tribunal found that Primary Consideration 5 carries a moderate weight in favour of affirming the reviewable decision.
The Tribunal found that Other Consideration (a) - the legal consequences of the decision regarding Mr Sirad’s Visa carries limited weight towards setting the reviewable decision aside.
The Tribunal found that Other Consideration (b) - the extent of impediments if removed – carries a very strong weight towards setting the reviewable decision aside.
The Tribunal found that Other Consideration (c) - the decision’s impact on Australian business interests - carries a neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (per paragraph 9(1) of the Direction).[79]
[79] Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
The Tribunal has considered all the findings it has made and the weights it has identified under the relevant considerations. It has then conducted an evaluative holistic assessment of these using the process outlined in Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870 at [21]:[80]
[80] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
‘[21] The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision‑maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted [1987] FCA 457; (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).’
In conducting this process, the Tribunal has also had regard to the Direction and specifically paragraph 7(2) in relation to Primary Consideration1:
‘The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.’(Emphasis added.)
The use of the term ‘generally’ can be argued to have the implicit effect of negating a decision‑maker’s discretion to set aside a decision by always giving Primary Consideration 1 greater weight than all the remaining primary considerations, overriding the holistic weighing and balancing exercise described in Demir above. This would consequently remove most, if not all, of the statutory discretion available to the decision‑maker.
The decision in Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 [81] sets out a line of higher authorities that substantiates the existence of a discretion in s 501CA(4) to set aside a reviewable decision.[82]
[81] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024).
[82] Ibid at [37]– [39].
Two further authorities offering guidance are the decision of His Honour Justice Dowsett in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 [83] at [10]–[13], where His Honour found that the Minister had inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case, and the decision of His Honour Justice Sackville in Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340[84] at [54].
[83] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001).
[84] Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340.
Additionally, paragraph 5.1(2) of the Direction refers to the discretion:
‘Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.’ (Emphasis added.)
Taken together these points imply that the Tribunal retains a discretion to determine whether ‘greater weight’ should be given to Primary Consideration 1 in a specific matter. The Tribunal considers that in this matter, Primary Consideration 1 should not be accorded this greater weight relative to the remaining Primary and Other Considerations. Its reasoning for doing this lie in its finding about the negligible risk of Mr Sirad re-offending, its findings on Primary Considerations 3 and 4 and Other Considerations (a) and (b), as well as the relative seriousness of Mr Sirad’s offending and his dynamic (and ongoing) reductive rehabilitative process in terms of his risk of re-offending.
Having addressed the consideration of Primary Consideration 1’s greater weight, the Tribunal has conducted a balancing and evaluative exercise of the relevant considerations, as outlined in Demir, that integrates the findings and weights attributed to the relevant considerations to determine whether “another reason” exists to set the reviewable decision aside.[85]
[85] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [28], [37].
Having then considered a comprehensive, holistic and integrated view of its specific findings and the weights it has attributed to each of the relevant Primary Considerations and the Other Considerations, this matter’s specific circumstances lead this Tribunal to conclude that the Considerations involving findings that support setting the reviewable decision aside outweigh those involving findings affirming it. Consequently, the Tribunal finds that it is satisfied that there is another reason to set aside the reviewable decision.
DECISION
Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent on 21 October 2024 and substitutes a decision to revoke the cancellation of Mr Sirad’s visa.
Date(s) of hearing: 6, 7 and 13 January 2025 Solicitors for the Applicant: Ms Ozherelyeva of Samuta McComber Lawyers Solicitors for the Respondent: Mr Zheng of Clayton Utz
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