Mohemadali and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1232

Mohemadali and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1232 (15 July 2025)
Applicant/s:  Ahmed Hussein MOHEMADALI
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/3339

Tribunal:Senior Member N Manetta
Place:Adelaide
Date:15 July 2025
Date of Written Reasons: 5 August 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that the cancellation of the applicant’s visa be revoked.
Written reasons for this decision will be provided within a reasonable time hereof.

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Senior Member N Manetta

Catchwords
MIGRATION – mandatory cancellation of humanitarian visa under Migration Act – applicant a citizen of Eritrea – applicant does not pass character test – whether ‘another reason’ for cancellation decision to be revoked – applicant guilty of serious offences of violence – alternative scenarios of return to Eritrea or possibly extended period of detention weighed – in either case appropriate to set aside decision under review and reinstate visa
Legislation
Migration Act, 1958 (Cth)
Cases
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons

These are my written reasons for the decision I made and published on 15 July 2025.
This is an application by Mr Ahmed Hussein Mohamedali seeking a review of the decision of the respondent’s delegate dated 17 April 2025.[1] By this decision, the respondent’s delegate declined to revoke the cancellation of Mr Mohamedali’s visa.[2] The cancellation had taken place earlier, and mandatorily so, following Mr MohamedaIi’s conviction of causing harm with intent (an aggravated charge). Mr Mohamedali received a sentence of five years’ imprisonment on 12 November 2021 in relation to this offending. As part of this sentence was required to be served on a full-time basis in jail, the respondent was obliged to cancel Mr Mohamedali’s visa under s 501(3A) of the Migration Act, 1958 (Cth) (‘the Act’). I shall describe the offending in more detail in due course.
[1] The delegate’s decision and reasons were before me at Hearing Book (‘HB’), 96ff.
[2] A class XB Subclass 202 Global Special Humanitarian visa.
Mr Mohamedali made a timely application for an internal review. The internal-review delegate had two questions to consider under s 501CA(4)(b) of the Act. The first was whether Mr Mohamedali passed the so-called ‘character test’ as elaborated under s 501(6) and (7) of the Act. Given the sentence to which I have referred and the terms of s 501(6)(a) and 7(c), Mr Mohamedali could not pass the test,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mohemadali and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1232
Case: [2025] ARTA 1232
Decision Date: 15 July 2025

CaseChat Overview and Summary

The case of Mohemadali and Minister for Immigration and Citizenship (Migration) involved Mr Mohamedali, an Eritrean citizen granted a humanitarian visa, facing a mandatory cancellation of his visa under the Migration Act due to failing the character test. The court was required to decide if there were other reasons to revoke the cancellation decision. Mr Mohamedali had been convicted of serious violent offences in Australia, but the court considered the potential consequences of his deportation to Eritrea and the possibility of an extended detention period. The court ultimately decided to set aside the decision under review and reinstate Mr Mohamedali's visa.

The primary legal issue was whether the Minister had correctly exercised his discretion under the Migration Act by cancelling Mr Mohamedali's visa. The court had to weigh the character concerns against the difficulties Mr Mohamedali would face if deported to Eritrea. The court noted that Mr Mohamedali had engaged in serious criminal behaviour, which weighed against him, but also considered the significant obstacles he would face if returned to Eritrea, including the potential to be conscripted into the Eritrean armed forces. The court concluded that the alternative scenarios of returning to Eritrea or facing an extended detention period warranted setting aside the cancellation decision and reinstating the visa.

Orders

Orders of the court

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Background

Background to the litigation

I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr Mohamedali’s visa be revoked. I set out below the background facts and then my reasons for this conclusion.BACKGROUND FACTS Mr Mohamedali was born in 1994 in Eritrea and was 29 years of age at the time of the hearing before me. Due to the conditions of conflict there, and also, it would appear, his father’s political activism,[7] Mr Mohamedali had to flee Eritrea with his family whilst he was still a child. The family relocated, he said, to a refugee camp in Sudan, near the border. [7] HB, 1 [2]. They lived in the refugee camp for some nineteen years, he said in his oral evidence (but I prefer the father’s estimation of some 15 years);[8] and in 2015, having been granted humanitarian visas, the family travelled to Australia. Mr Mohamedali must have been about 20 years of age at that time given his birth year of 1994. As he had lived in the camp for some 15 years, it follows that he entered the camp as a child aged about five or six. He could have no meaningful recollection of life in Eritrea. [8] HB, 147. The father says they entered the Sudanese refugee camp in 2000. Mr Mohamedali has been involved in serious offending in Australia. His criminal record was before me.[9] It comprises three appearances before the Courts of South Australia. The parties agreed that I am required in law to ignore the earliest of the offences that is listed in this criminal record (namely, the offence dealt with on 17 February 2017), and I do so. This leaves two appearances for me to consider. [9] HB, 41-42. The earlier offending (although Mr Mohamedali came to be sentenced for it after the second offending) involved a very serious attack. The sentencing remarks were before me, and I accept and rely upon them.[10] The remarks refer to Mr Mohamedali being found guilty of an offence of ‘aggravated causing harm with intent to cause harm’ after a jury trial. [10] HB, 116ff. Mr Mohamedali had been outside a nightclub in the CBD of Adelaide on 5 October 2019. He had been smoking cannabis with friends. Security officers from the club sought to move the group on. The group, including Mr Mohamedali, refused, and police were called by the security officers to assist. Mr Mohamedali continued to argue even though police had identified themselves. There was pushing and shoving between the victim (who was a security officer) and Mr Mohamedali. Mr Mohamedali pulled out scissors he had on his person[11] and stabbed the victim in the arm. The stab caused a five-cm laceration extending into the victim’s muscle and brachial artery. The Court observed that it was fortunate that the injury was not fatal (such was the loss of blood).[12] The Court also observed that the victim had not hit out at Mr Mohamedali nor had Mr Mohamedali warned the victim to back away before he decided to use the scissors. The Court held expressly that ‘there was no warning of any sort’.[13] The Court found that none of the actions, either of the security officers or of the police, ‘mitigated’ the decision by Mr Mohamedali to use the scissors.[14] The Court explicitly rejected the use of the scissors as a case of excessive self-defence.[15][11] He had them on his person, he explained, to cut or grind cannabis with: HB, 4 [9]. In any event, the Court accepted that the scissors were not brought along that evening as a weapon: HB, 117.[12] HB, 116.[13] Ibid.[14] HB, 117.[15] HB, 116.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

At the hearing before me, Ms O’Connor, SC appeared for Mr Mohamedali; Mr Chan, for the respondent. I am grateful to them both for their assistance to me.STATEMENT OF CONCLUSION I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr Mohamedali’s visa be revoked. I set out below the background facts and then my reasons for this conclusion.BACKGROUND FACTS Mr Mohamedali was born in 1994 in Eritrea and was 29 years of age at the time of the hearing before me. Due to the conditions of conflict there, and also, it would appear, his father’s political activism,[7] Mr Mohamedali had to flee Eritrea with his family whilst he was still a child. The family relocated, he said, to a refugee camp in Sudan, near the border. [7] HB, 1 [2]. They lived in the refugee camp for some nineteen years, he said in his oral evidence (but I prefer the father’s estimation of some 15 years);[8] and in 2015, having been granted humanitarian visas, the family travelled to Australia. Mr Mohamedali must have been about 20 years of age at that time given his birth year of 1994. As he had lived in the camp for some 15 years, it follows that he entered the camp as a child aged about five or six. He could have no meaningful recollection of life in Eritrea. [8] HB, 147. The father says they entered the Sudanese refugee camp in 2000. Mr Mohamedali has been involved in serious offending in Australia. His criminal record was before me.[9] It comprises three appearances before the Courts of South Australia. The parties agreed that I am required in law to ignore the earliest of the offences that is listed in this criminal record (namely, the offence dealt with on 17 February 2017), and I do so. This leaves two appearances for me to consider. [9] HB, 41-42. The earlier offending (although Mr Mohamedali came to be sentenced for it after the second offending) involved a very serious attack. The sentencing remarks were before me, and I accept and rely upon them.[10] The remarks refer to Mr Mohamedali being found guilty of an offence of ‘aggravated causing harm with intent to cause harm’ after a jury trial. [10] HB, 116ff. Mr Mohamedali had been outside a nightclub in the CBD of Adelaide on 5 October 2019. He had been smoking cannabis with friends. Security officers from the club sought to move the group on. The group, including Mr Mohamedali, refused, and police were called by the security officers to assist. Mr Mohamedali continued to argue even though police had identified themselves. There was pushing and shoving between the victim (who was a security officer) and Mr Mohamedali. Mr Mohamedali pulled out scissors he had on his person[11] and stabbed the victim in the arm. The stab caused a five-cm laceration extending into the victim’s muscle and brachial artery. The Court observed that it was fortunate that the injury was not fatal (such was the loss of blood).[12] The Court also observed that the victim had not hit out at Mr Mohamedali nor had Mr Mohamedali warned the victim to back away before he decided to use the scissors. The Court held expressly that ‘there was no warning of any sort’.[13] The Court found that none of the actions, either of the security officers or of the police, ‘mitigated’ the decision by Mr Mohamedali to use the scissors.[14] The Court explicitly rejected the use of the scissors as a case of excessive self-defence.[15][11] He had them on his person, he explained, to cut or grind cannabis with: HB, 4 [9]. In any event, the Court accepted that the scissors were not brought along that evening as a weapon: HB, 117.[12] HB, 116.[13] Ibid.[14] HB, 117.[15] HB, 116.

Ratio Decidendi

Legal Principle Established

I note that these two scenarios are strict alternatives to one another. They are not to be weighed cumulatively, therefore.Weighing the considerations I turn now to weigh the various considerations. I begin with the very strongly antisocial criminal behaviour in which Mr Mohamedali has engaged. He engaged in a very serious assault, and he inflicted a very serious injury upon the security officer. He has attacked a delivery worker and assaulted police who were effecting an arrest. This offending occurred whilst he was on bail. On my estimation of risk, Mr Mohamedali would still pose a tangible risk on release to the Australian community after jail. There are clear character concerns that count against him. These indeed weigh against him whether or not he is judged to pose a risk to the Australian community.[41] [41] Paragraph 8.5(3) of the Direction. While he has some support from family and would live within a family environment if released into the community, that has not proved to be a strong deterrent in the past. He has persisted in antisocial drug and alcohol habits in the past despite his connection with family. He does not have a prosocial circle of friends. I must also add in, of course, the family violence, which is, however, in this case of lesser significance; and it is not, as I have said, a ‘tipping point’ in my deliberations. There are clearly considerations in this case that weigh heavily against Mr Mohamedali. He has engaged in very antisocial crimes, as I have said, and has only marginally contributed to Australia. However, Mr Mohamedali would face very serious obstacles on his return to Eritrea if he were to be removed there in due course as a result of a decision by me to affirm the decision under review. These obstacles are considerable, and the respondent conceded that they weigh heavily in favour of revocation.[42] Eritrea is not a normally functioning country. There is a lack of a reasonable civil society. Sending the applicant to that sort of country, where he presently has no substantial connection, would pose significant difficulties indeed. In addition to the obstacles mentioned by the respondent,[43] I accept Mr Mohamedali’s contention that he might be compelled to join the Eritrean armed forces, where he could be required to serve indefinitely (in circumstances where conscripts are routinely held and deployed to advance the authoritarian regime’s oppressive and violent agenda).[44] I bear in mind here also that Mr Mohamedali would not be able to navigate this threat as well as others who have established social connections and a clearer understanding of the workings of the regime. In this sense the obstacles he would face would pose a particular difficulty for him: he would face additional hurdles because of his personal circumstances.[45][42] HB, 613 [65].[43] HB, 613 [63].[44] See, for example, Human Rights Watch, World Report 2025, Eritrea referred to by the Applicant.[45] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92.