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.

........................................................................
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, and the delegate’s conclusion in this regard was clearly correct. The second question, which arose if the answer to the first question was no, was whether there was ‘another reason’ – that is, a reason other than Mr Mohamedali passing the character test – warranting the revocation of the cancellation decision. In addressing this second question, the delegate was required to apply any direction issued under s 499 of the Act. The delegate applied Direction no. 110 (‘the Direction’).[3] After weighing the various considerations required to be addressed under the Direction, the delegate concluded that, on balance, there was not another reason warranting the revocation of the cancellation decision. The delegate found that the threshold condition for exercising the power under s 501CA(4)(b)(ii) of the Act had not been met. The delegate decided, therefore, not to take action to revoke the visa cancellation.[4]
[3] 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).
[4] HB, 113 [115] – [116].
TRIBUNAL’S TASK
I must address the same two questions as the delegate. I have already indicated that the delegate decided the first question correctly. I make the following prefatory remarks[5] in respect of the second question. In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[6] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.
[5] What follows in the balance of this paragraph is a series of standard observations that I include in all my decisions in this area.
[6] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51]. This case concerned the Administrative Review Tribunal’s predecessor, the Administrative Appeals Tribunal, but the same principles apply.
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.
Mr Mohamedali was given a sentence of five years with two years and ten months set as a non-parole period. The sentence began on the day he was remanded in custody (namely, on 15 October 2025).
The second group of offences took place later than this offending, but they were dealt with earlier in the courts. On 31 December 2020, whilst Mr Mohamedali was awaiting trial on the serious stabbing offence to which I have just referred, he committed a number of offences; namely, breaching bail, aggravated assault, damaging property and two counts of assault against police. Again, I had the sentencing remarks before me, and I accept and rely upon them.[16]
[16] HB, 471.
An older woman (recorded in the remarks as being over the age of 60) was delivering advertising material to letterboxes. She had apparently pulled up in her car after observing Mr Mohamedali behaving erratically in the street, and she asked him whether he was alright. He told her that he wished to be left alone. He kicked and punched her car. He then left, and she got out of her car to begin her work delivering advertising material. He then returned and began whipping her with a dressing-gown cord. She ran to a nearby property and police were called. At some point Mr Mohamedali also smashed the windscreen of her car.
The police arrived, and they believed that Mr Mohamedali was intoxicated given his erratic and uncontrolled behaviour. He threw sticks at the police. One hit an officer, but no injury was caused. Pepper-spray was deployed but it did not have any real effect upon him. Mr Mohamedali continued to fail to obey police directions, and police officers ‘tasered’ him. He was arrested and taken to the Port Adelaide Police Station. Erratic and dangerous behaviour on Mr Mohamedali’s part prompted officers to transfer him to a padded cell. He resisted; an altercation ensued; and Mr Mohamedali spat into an officer’s face. His offending constituted a breach of his home-bail conditions.[17] It is also recorded in the remarks that he returned a positive result to a urine test for THC (or cannabis).
[17] He was on bail awaiting trial in respect of the earlier offending outside the nightclub.
The sentencing proceeded on the basis that Mr Mohamedali was not intoxicated or affected by drugs at the time of the offending.[18] Mr Mohamedali did spend time in the mental-health facility known as ‘James Nash House’ after this offending but was not diagnosed with any psychiatric disorders or any mental health problems. The Court found that the behaviour was spurred by anger and an inability to control emotions. The Court noted that if Mr Mohamedali were unable to control his emotions in the future, he would pose a moderate to high risk of reoffending.[19]
[18] HB, 472.
[19] HB, 472.
Mr Mohamedali was sentenced to seven months’ imprisonment, three months of which was suspended. He was required, therefore, to spend four months in custody.
By way of contrast to his siblings who gave evidence on his behalf, Mr Mohamedali does not appear to have integrated well into the Australian community. He has had a chequered work history in Australia largely consisting of short-term factory and manual work. He does not have a settled employment history, as I say; nor does he have a range of prosocial friends or contacts; nor does he have a partner. He has limited English. He struck me overall as a person who has lived in Australia in an unhelpfully isolated way.
Finally, I note an incident of family violence, to which I shall return in due course when I come to consider that consideration as I progressively apply the Direction.
REASONS
Prefatory remarks
With this summary of the facts in mind, I come now to the Direction. I usually set out four standard paragraphs that explain aspects of the Direction, and I do so again in what follows in paragraphs [21] – [24] below.
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to the protection of the Australian community over other primary considerations, and it also provides that primary considerations should ‘generally’ be given greater weight over other considerations.
Application of the Direction
I now turn to apply the Direction. I turn first to consider the protection of the Australian community. Subparagraph 8.1(1) provides that decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are and have been law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
This is a particularly important principle to bear in mind in this case. There have been two episodes of violence which have led to charges before the Courts. I accept the sentencing Court’s observation that the use of the scissors could have led to a fatal injury in the circumstances. Clearly enough, violence of that magnitude is very serious indeed. It was followed by other violence involving the older female delivery worker and the police. There has also been damage to property. This suite of offending is not minor, but is to the contrary very serious.
Paragraph 8.1.1(1) requires me to consider the nature and seriousness of the applicant’s conduct. There are a number of matters set out in subparagraphs (a) to (i) to which I must have regard. Crimes of a violent nature are cited as examples of crimes that are very serious.[20] I apply that view. To the extent that the violent offending involves a woman – and it did so in respect of the older delivery worker and the female police officer – I must regard the behaviour as very serious irrespective of the sentence imposed.[21] I note that the offending was especially serious in that the delivery worker was an older female, and the female police officer was engaged in her legitimate and pro-social duties of preserving the peace in the Australian community.
[20] Paragraph 8.1.1(1)(a)(i).
[21] Paragraph 8.1.1(1)(a)(iii).
I will refer to the family violence offending in due course but merely note it as a matter that is to be considered as very serious under paragraph 8.1.1(1)(a)(iii) of the Direction.
I have had regard to the sentences imposed,[22] and I note the sentence of five years for the stabbing offence was a long one, which only serves to emphasise the great seriousness of this particular offending. Again, I note that the court categorised the offending as potentially life-threatening.
[22] Paragraph 8.1.1(1)(c).
I am required to have regard to the effects upon the victims of the offending.[23] I do not have up-to-date victim statements. I do note, however, that the sentencing Court referred to the traumatic after-effects of Mr Mohamedali’s behaviour upon the female delivery worker.[24] The other sentencing Court referred to the profound effect of the stabbing, both physical and emotional, upon the security guard.[25] The effects were, therefore, considerable at the time.[26]
[23] Paragraph 8.1.1(1)(d).
[24] HB, 473.
[25] HB, 116.
[26] I also have before me a press report in respect of the stabbing, which refers to the impact on the victim: HB, 590-591.
There has been some frequency of offending;[27] and despite being on bail at the time, Mr Mohamedali attacked the delivery-worker. He was largely out of control at that time, it would appear. I note also in this connection the earlier episode of family violence, which I shall describe in due course. There is not a trend, as such, of increasing seriousness in that the earlier of the two criminally charged offences was clearly the more serious, but there is nevertheless a pattern of very serious aggression triggered by surrounding circumstances. That is concerning.
[27] Paragraph 8.1.1(1)(e).

There is a cumulative effect upon the community of repeated offending, and I bear this in mind as well.[28]
[28] Paragraph 8.1.1(1)(e).
I turn now to paragraph 8.1.2. Paragraph 8.1.2(1) sets out an important principle. In considering the need to protect the Australian community from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and harm are so serious that any risk of repetition may be unacceptable. That is an important principle to bear in mind where, as here, the violence involves weapons that can lead to serious, or even fatal, injury.
Paragraph 8.1.2(2) addresses the question of risk. In assessing risk, I must have regard to a number of factors. First, I must have regard to the nature of harm to individuals or the Australian community should Mr Mohamedali engage in further criminal or other serious conduct. Secondly, I must have regard to the likelihood of his engaging in that conduct given the matters referred to in paragraph 8.1.2(2)(b)(i) and (ii).
The nature of harm to the Australian community could be extreme if Mr Mohamedali were to repeat the conduct that occurred outside the nightclub. As I have said, the Court indicated that it was fortunate that the victim did not lose his life. Obviously enough, that type of behaviour must be taken very seriously, and I do so.
The other assaults were examples of unprovoked aggression, and they too were serious, particularly in respect of the older female delivery worker who was whipped with a cord.
I must take into account the likelihood of Mr Mohamedali repeating these offences. This is not an easy assessment to make. First, I have decided I should not accept the conclusions given in the report prepared by Ms Gross-Parsons, an expert psychologist. This report was tendered by Mr Mohamedali. I have decided that her report lacked balance and should not be relied upon. Ms Gross-Parson’s conclusion that Mr Mohamedali was at virtually a nil risk of reoffending[29] cannot be sustained in my view given his troubled background, previous frequent misuse of cannabis and alcohol, his lack of stable employment, and his lack of a prosocial circle of friends and relationships. Her conclusion was founded, she said in her evidence to me, on an assessment of Mr Mohamedali’s present attitudes and behaviour; but that approach fails to give due weight to his past behaviour as a relevant factor in predicting the risk of recidivism. His past behaviour, including illicit drug use, remains an important factor to weigh in my view: it is not irrelevant.
[29] HB, 35.
Mr Mohamedali was assessed by the Parole Board in November 2024 as posing a significant risk to the community.[30] All in all, he was assessed as having a high risk of general reoffending.[31] I accept that risk assessment as at that time. A recommendation was in fact made that he be paroled with reporting conditions, but the Board declined to follow this recommendation. The Board assessed Mr Mohamedali as unsuitable for parole given his high risk profile. The Board noted that he could reapply after 2 October 2025.
[30] HB, 359-360.
[31] HB, 401ff. Although his risk of violent reoffending was assessed by one report as moderate: HB, 402.
The Court’s sentence implies that Mr Mohamedali will be in jail to October 2026 unless he is paroled. Assessing his risk of reoffending on re-entry to the community, given that there is no present indication that he is likely re-enter the community before October 2026, is difficult. The material before me suggests that Mr Mohamedali has begun to appreciate that some of his behaviours were problematic (once he completed the Living Without Violence Program).[32] Furthermore, there is no indication on the material before me that he has been a violent prisoner: I do not believe he poses a risk to the prison population. He has also returned negative drug test results in jail on two occasions.[33]
[32] HB, 402.
[33] HB, 410.
All in all, I believe that Mr Mohamedali is on a path to rehabilitation in that he has not abused drugs or alcohol in jail on the evidence before me and has, overall, maintained appropriate behaviour for some time, now equalling some three and three-quarter years since he was first remanded in mid-October 2021. I also note the positive observation that he has begun to appreciate the wrongfulness of his conduct.[34] I also accept that his interactions with Ms Gross-Parsons have been beneficial to him personally, even though I have rejected her professional assessment of risk.[35]
[34] HB, 402. Nevertheless, I note Mr Mohamedali has put to me an implausible scenario, which I reject, that he was advised not to plead guilty by his lawyer because he had acted in self-defence: HB, 4 [10].
[35] HB, 8 [24].
Nevertheless, I believe I should be guarded in my approach to risk assessment; and in particular, I believe that any return to alcohol or cannabis by Mr Mohamedali whilst in the community would only facilitate further uncontrolled aggression. There is a clear link, for example, between the nightclub incident and the misuse of cannabis and/or alcohol on that night. Moreover, Mr Mohamedali has clearly presented within the family unit as a loner who is prone to violent outbursts: on the evidence before me he would regularly lock himself away in his room, where, it would appear, he must have been largely free to resort to cannabis or alcohol. As I have said, he has had an uneven employment history and very few prosocial connections. His integration into the Australian community has been poor to date, and it has been hampered by a lack of English language skills.
All in all, given the tenor of the Board’s decision, which I accept, I believe that Mr Mohamedali is not likely to be released in the near future; and in the circumstances I believe his release in October 2026 is more likely than his release at a substantially earlier date. On the evidence before me, although he does not pose a risk to the prison community at the present time, Mr Mohamedali could well pose a tangible risk to the community on release in 2026, although, as I say, I do accept that there are reported signs that he is beginning to improve slowly.
I note that this risk assessment is a matter I must consider ‘cumulatively’, that is, in conjunction with, the nature of harm should he reoffend, which I have already assessed as very serious.[36]
[36] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92.
Paragraph 8.2 of the Direction requires me to consider ‘family violence’. It is not disputed that the applicant has engaged in family violence. He damaged his brother’s car and slashed its tyres in 2016. This resulted in the making of an interim intervention order to protect the brother. The episode arose from an argument. Mr Mohamedali’s brother had remonstrated with Mr Mohamedali when he found out the latter was borrowing money from family friends: that was a matter of considerable embarrassment to the family. This is an episode I must take into account, and it is consistent with Mr Mohamedali’s history of impulsive aggression. The argument clearly challenged Mr Mohamedali, and he responded aggressively. The same type of behaviour was, of course, to repeat itself with the security guard and the delivery worker.
I take into account this family violence, but I do note that it did not involve personal violence to the family member as such (although the family member’s property was damaged). But the event is also many years old now. I have decided that it could not reasonably prove to be a ‘tipping point’ in my deliberations, and I need not deal with it further.
I must have regard to the strength, nature and duration of Mr Mohamedali’s ties to Australia: paragraph 8.3 of the Direction. I do accept he has close ties with his mother and father, who have health conditions. There are also ties to adult siblings, although these are less important.
If I were to affirm the decision under review, Mr Mohamedali would face either removal to Eritrea (if he is not owed non-refoulement obligations); or if he made an application for a protection visa and were found to be owed non-refoulement obligations, he would remain in detention until a third country were found, or until the prospect of finding a third country in the reasonably foreseeable future had ceased to be a reasonable prospect (in which case he would be released into the community at that point).[37] I take this consideration into account in Mr Mohamedali’s favour; but I do bear in mind that for the foreseeable future it would appear that he will remain in jail, and that it is not necessarily the case that if I were to affirm the decision under review, he would be removed to Eritrea or a third country in the reasonably foreseeable future. I do accept, however, that a period of detention, which itself involves a degree of isolation from family members, may follow on a decision by me to affirm the decision under review.
[37] See below at [55].
I accept the respondent’s contention that the fourth consideration (namely, interests of minor children) weighs neutrally in this case.
So far as the fifth primary consideration is concerned (namely, the expectations of the Australian community), paragraph 8.5(1) requires me to have regard to the community’s expectation that ‘as a norm’ the Australian community expects Mr Mohamedali to leave Australia. He has engaged in serious conduct in breach of the Australian community’s expectation that he be law-abiding.
Subparagraph (2) then provides that character concerns may give rise to concerns that an applicant should not remain in the community. In this regard, I note that there have been very serious crimes committed (including the crime of violence against the security guard, the violence against the delivery worker, and some violence against the police officers). All in all, this consideration counts substantially against Mr Mohamedali.
I must weigh the so-called ‘other’ considerations under section 9. There is a non-exhaustive list of considerations. I should have regard, I believe, under section 9 to the probable consequences of a decision by me to affirm the decision under review. I am not prevented from considering these, and I believe I ought to consider them. Were I to affirm the decision under review, a number of scenarios might ensue. I now turn to describe these.
First, if I affirmed the decision under review, Mr Mohamedali might be removed to Eritrea as a person who is judged not to be owed non-refoulement obligations.[38] Secondly, Mr Mohamedali might make an application for a protection visa and be found to be owed non-refoulement obligations, but he might be refused a protection visa on character grounds. In that circumstance, he could not lawfully be removed to Eritrea, but he would be taken into immigration detention. He would remain in detention until a third country could be found to take him or until there was no reasonable prospect of a third country taking him in the reasonably foreseeable future. At that point, he would be released into the community on a bridging visa pending eventual removal.[39] Thirdly, if I affirmed the decision under review, Mr Mohamedali might apply for a protection visa, be found to be owed non-refoulement obligations, and be granted the visa notwithstanding character considerations.
[38] That is, even on the assumption he made an application for a protection visa, which is a reasonable assumption.
[39] See below at [55].
I think the likelihood of this third scenario occurring is somewhat remote and, in any event, less than the combined likelihood of the other two scenarios. I do not anticipate that the Minister’s delegate would readily allow Mr Mohamedali to remain in Australia on a protection visa when another delegate has cancelled his humanitarian visa and objected to its reinstatement by this Tribunal.
So far as the first two scenarios are concerned, I believe both involve consequences for Mr Mohamedali that are very serious. So far as the first is concerned, I am explicitly bound to consider Mr Mohamedali’s impediments on removal under section 9. So far as removal to Eritrea is concerned, I bear in mind that Mr Mohamedali has never lived there apart from the first few years or so of his life. He has very limited family connections there: he has a grandmother, but that is all. Eritrea is not an advanced country. I accept the respondent’s concession that returning to Eritrea is a consideration that weighs heavily in favour of revocation.
I turn now to the other scenario if I affirm the decision under review, which is that Mr Mohamedali is found to be owed non-refoulement obligations on an application for a protection visa but is refused the protection visa on character grounds. That would mean he could not be returned to Eritrea. It also means that he would remain in detention until he could be removed to a third country or until there is no reasonable prospect of his being so removed in the reasonably foreseeable future, in which case he must be released into the community: see NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (‘NZYQ’).[40] I cannot predict how long progressing the resettlement process might take, and I cannot predict the length of detention. I bear in mind, however, that such matters have not always proceeded quickly in the past, and that Mr Mohamedali may well face a considerable period of time in detention after he completes his prison term in October 2026. It could not be, of course, a period that is never-ending because NZYQ makes it clear that a detainee must be released into the community no later than the time at which it ceases to be a reasonable prospect that he or she will be removed to a third country in the reasonably foreseeable future. Nevertheless, the period in detention could still be a lengthy one, and I believe I should weigh that in Mr Mohamedali’s favour.
[40] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005.
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.
If this is the scenario that I should weigh as the more likely scenario, I would conclude the balance favours revocation of the cancellation decision because of the highly prejudicial consequences that could befall Mr Mohamedali on return to Eritrea. I would reach this decision irrespective of the family connections he has in Australia, although these reinforce my conclusion.
If, however, Mr Mohamedali were to be found to be owed non-refoulement obligations, he could not be returned to Eritrea. In this scenario, it would be a case of weighing the prospect of detention pending removal to a third country (or pending release into the Australian community once the situation has been reached that there is no reasonable prospect of resettlement in a third country in the reasonably foreseeable future). In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘WKMZ’),[46] the plurality of the full Federal Court made it clear that personal liberty is ‘one of the most basic human rights and fundamental freedoms known to the common law’.[47] Once Mr Mohamedali has completed his jail term, he will have a vital interest in his personal liberty as anyone else does. It is very important to bear steadily in mind that Mr Mohamedali would face an important loss of liberty were he to be held in detention, as WKMZ makes clear. Although it could not be an endless period of detention given the High Court’s decision in NZYQ, it could nevertheless be a prolonged one. I cannot judge, of course, how prolonged it might be, and I bear in mind that Mr Mohamedali’s detention may not commence until October 2026; but I believe I should act on the basis that if it is a serious matter to contemplate the plausible risk of an extended period of detention for any person. The period of detention could be an extended one in this case. Although the Government is now empowered to offer financial inducements to third countries to persuade them to take detainees, it is unclear whether Mr Mohamedali would be taken on by a third country.
[46] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463.
[47] At [123].
If this is the scenario that I should weigh as the more likely one, I would again conclude that on balance the preferable decision would be to revoke the cancellation decision given Mr Mohamedali’s very strong interest in his personal liberty. Once again, his family ties reinforce my decision in this regard.
Both these scenarios, which as I say are strictly alternatives, lead to the same ultimate conclusion. It is not necessary, therefore, for me to decide which of the two scenarios is the more likely one. I have already indicated that the combined likelihood of these two scenarios occurring is far greater than the likelihood that Mr Mohamedali would be granted a protection visa on application. The net result of my deliberations, therefore, is that the most likely scenario should result in a revocation of the cancellation decision.

In reaching this conclusion, I wish to say that I am very conscious of the need to protect the Australian community and that is exactly what the Direction says I should be. I am conscious also of the need to be mindful of giving greater weight to the protection of the Australian community and of giving greater weight to the primary considerations in general over the ‘other’ considerations under section 9. Nevertheless, in the highly unusual circumstances of this case, there are very strong countervailing factors to which significant weight ought to be accorded. It is the individual circumstances of the case that must always inform the exercise of the weighing process and the ultimate conclusion drawn.[48] The process of evaluation is not a mechanical one.
[48] See paragraph 5(3) of the Direction.
CONCLUSION AND FORMAL DECISION
I have come to the conclusion that, on balance, the preferable decision on the evidence before me after applying the Direction is that the visa cancellation should be revoked in the unusual circumstances of this case. There is, therefore, ‘another reason’ for the cancellation decision to be revoked under section 501CA(4)(b)(ii) of the Act. My formal decision is, therefore, to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked. This is the decision I formally made on 15 July 2025.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.

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Associate

Dated: 4 August 2025

Dates of hearing: 3 and 4 July 2025

Advocate for the Applicant:

C O’Connor, SC

Advocate for the Respondent: A Chan

Dates of hearing:	3 and 4 July 2025
Advocate for the Applicant:	C O’Connor, SC
Advocate for the Respondent:	A Chan