Muhumud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 1365

Muhumud and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1365 (23 May 2022)

Division:GENERAL DIVISION

File Number:          2022/1786

Re:Mustafa Yusuf Muhumud

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:23 May 2022

Place:Melbourne

The decision under review not to revoke the mandatory cancellation of the visa is affirmed.

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Senior Member D. J. Morris

Catchwords

MIGRATION – applicant is citizen of Somalia – visa cancelled under s 501(3A) – is substantial criminal record not in dispute – is there ‘another reason’ to revoke mandatory cancellation - ministerial direction No. 90 – primary considerations – protection of the Australian community from criminal or other serious conduct – significant offending over long period – whether conduct constitutes family violence – best interests of minor children in Australia – expectations of Australian community – international non-refoulement obligations – extent of impediments if removed – impact on victims – links to the Australian community – decision under review is affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 33A

Migration Act 1958 (Cth), ss 36, 195A, 197AB, 198, 499, 500, 501, 501CA

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Secondary Materials

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (as later amended)
Department of Foreign Affairs and Trade; DFAT Country Information Report - Somalia (dated 13 June 2017)
Migration Act 1958 – Direction No. 75 – direction under s 499 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (commenced 7 September 2017)

Migration Act 1958 – Direction No. 90 – direction under s 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)

REASONS FOR DECISION

Senior Member D. J. Morris

23 May 2022

BACKGROUND

1. The Applicant, Mr Mustafa Muhumud, is a citizen of Somalia. He first arrived in Australia in September 2004 as the holder of a Refugee (Class XB) (Subclass 200) visa. He last arrived in Australia in May 2016 as the holder of a Five-Year Resident Return (Class BB) (Subclass 155) visa.

2. In February 2019, Mr Muhumud was convicted in the County Court of Victoria in relation to eight offences and received an aggregate sentence of four years, six months, and 28 days imprisonment. He was required to serve three years before being eligible for parole.

3. On 20 December 2019, Mr Muhumud was notified that his visa had been cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair (‘Minister’) under section 501(3A) of the Migration Act 1958 (‘the Act’) on the basis that Mr Muhumud had a “substantial criminal record” as defined in the Act and he was then serving a sentence of full-time imprisonment.

4. The Applicant was invited to make representations to the Minister’s Department as to whether there was “another reason” under section 501CA(4) of the Act to revoke the mandatory cancellation of his visa. On 24 February 2022, another delegate of the Minister decided not to revoke the mandatory cancellation.

5. Mr Muhumud has brought that decision to the Tribunal for review, as he is entitled to do, under section 500(1)(ba) of the Act.

   HEARING

6. A hearing was held on 12 and 13 May 2022. The Applicant represented himself, made submissions and gave evidence. The Respondent was represented by Mr Christopher Orchard, of Sparke Helmore Lawyers. The Applicant’s father, Mr YA, his sisters, Ms DM, and Ms JM also gave evidence. The Tribunal also gave leave for Mr MM, a representative of the Islamic Council of Victoria, to give evidence by telephone under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’).

7. The Tribunal took into evidence the following documents:

   (a)A volume of ‘GD’ documents lodged by the Respondent on 18 March 2022 (Exhibit R1);

   (b)A volume of ‘SGD’ documents lodged by the Respondent on 27 April 2022 (Exhibit R2);

   (c)Statement of the Applicant dated 9 May 2022 with attachments (Exhibit A1);

   (d)Statement of Mr YM dated 9 May 2022 (Exhibit A2);

   (e)Statement of Ms DM dated 9 May 2022 (Exhibit A3);

   (f)Statement of Ms JM dated 9 May 2022 with statutory declaration of 1 March 2021 (Exhibit A4); and

   (g)Statement of Mr MM dated 6 May 2022 (Exhibit A5).

8. At the conclusion of the hearing, the Tribunal gave leave for the Respondent to make a written closing submission by 17 May 2022 on the effect of a recent High Court decision, and for the Applicant to make any submissions in reply by 18 May 2022, after which it would reserve its decision.  Both parties made written submissions, which were taken into account.

9. The Applicant was notified of the decision not to revoke the mandatory cancellation of his visa on 28 February 2022. Section 500(6L)(c) of the Act provides that if the non-citizen is in the migration zone and the Tribunal has not made a decision within eighty-four days after the day on which that person was notified of the decision under review, the Tribunal is taken to have affirmed the decision. The relevant date in this matter is 23 May 2022.

   LEGISLATIVE FRAMEWORK

   What is the matter for the Tribunal to decide?

10. In reviewing a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act the Tribunal is not reviewing the decision of the delegate. The Tribunal is making a fresh decision based on the law and the information before it. Both parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate when the original decision was made.

11. The Tribunal must evaluate the factors for and against revocation. The then Acting Chief Justice of the Federal Court of Australia, North ACJ, made clear in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, (‘Gaspar’) at [38]:

    The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.

12. The Tribunal therefore must decide two questions. First, whether the Applicant fails the character test in the Act. If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that Mr Muhumud fails the character test, there remains a second question for the Tribunal to consider – whether the cancellation of his visa should be revoked for “another reason.”

    The mandatory cancellation of the visa

    Does the Applicant have a ‘substantial criminal record’?

13. Before the Tribunal was an Australian Criminal Intelligence Commission report (‘ACIC report’) on the Applicant, dated 11 December 2019 (GD, pp 39-43). The ACIC report records that on 19 February 2019, Mr Muhumud was before the County Court of Victoria and was convicted of the offences of Armed Robbery (three counts). On the first count, he was sentenced to 30 months’ imprisonment. On the second count, he was sentenced to 30 months’ imprisonment, to be served concurrently. On the third count, he was sentenced to two years’ imprisonment, with one year and six months of that sentence to be served concurrently. At the same hearing, he was convicted of the offence of Commit indictable offence whilst on bail (three counts), and sentenced to 30 days’ imprisonment on each count, with 23 days to be served concurrently. He was further convicted of the offence of Unlawful assault, and sentenced to 14 days’ imprisonment, with seven days to be served concurrently. In addition, he was convicted of the offence of Throw missile injure/danger/damage property (and sentenced to seven day’s imprisonment, concurrent) and Theft from Shop (Shopsteal), for which he received 21 days’ gaol, to be served concurrently.

14. Mr Muhumud did not dispute before the Tribunal that, as he had been sentenced to a term of imprisonment of 12 months or more, he satisfied the provisions of the Act in having a “substantial criminal record”. He confirmed to the Tribunal that the purpose of his application was to submit that there is “another reason” under section 501CA(4) for the mandatory cancellation of his visa to be revoked.

15. Section 501(3A)(b) of the Act requires that the non-citizen must be serving a sentence of full-time imprisonment, for an offence against a law of the Commonwealth, a State, or a Territory, at the time his or her visa was cancelled. The Tribunal is satisfied that Mr Muhumud was serving a sentence of full-time imprisonment when his visa was revoked, at a corrections institution in the State of Victoria.

16. The Tribunal is satisfied that the Applicant’s visa was mandatorily cancelled because he failed the character test.

    The Ministerial Direction – Direction No. 90

17. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction.

18. On 8 March 2021, the Minister made a direction under section 499, Direction No. 90 (‘the Direction’) which commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is “another reason” to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account, where they are relevant. However, the Tribunal’s task is not confined only to the contents of the Direction. The Tribunal must consider any other factor in the circumstances of the case that is relevant to the principles of the Act.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community (paragraph 8.1)

19. The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the conduct (paragraph 8.1.1)

20. The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.

21. The ACIC Report records that in December 2006, the Applicant was convicted before the County Court of Victoria of the offences of Rape and Assault with Intent to Rape. On the same day, he was further convicted of the offence of Common Law Assault. For the first offence, he received a sentence of two years and six months in a Youth Training Centre.  For the second offence, he was sentenced to 12 months in a Youth Training Centre with nine months of that period to be counted concurrently. For the assault offence, he was sentenced to six months in a Youth Training Centre, three months of which were to be counted concurrently.

22. The Respondent submitted that regarding the Rape and Assault with Intent to Rape offences, the victim had an intellectual disability, so paragraph 8.1.1(1)(b)(ii) of the Direction is enlivened. The Tribunal rejects this submission. The sentencing Judge made clear that the Applicant did not know the victim had a disability before he attacked her. While his crimes against her were heinous, it would be unsafe to take this specific exhortation in the Direction into account where it was not in the knowledge of the Applicant when he offended.

23. In respect to paragraph 8.1.1(1)(c) of the Direction, the Tribunal must have regard to the sentences imposed. Apart from the prison terms outlined above, the ACIC Report reveals that Mr Muhumud has been sentenced to prison terms on some 35 other occasions by the Courts. On occasion, these prison terms have been suspended, but in many cases they have been custodial. The Courts have a range of tools available to them to impose corrective sanctions on offenders. It is well established that imprisonment is the highest in that hierarchy of tools and generally only resorted to if the offending is very serious or the offender has persistently offended.

24. Mr Muhumud’s offending has included property offences such as burglary, criminal damage, intentional damage, theft, wilful damage, attempted burglary, being in a private place without excuse, and several instances of stealing from shops. In terms of crimes against the person, apart from the sexual crimes referred to above, Mr Muhumud has been convicted of recklessly causing injury, intentionally causing injury, affray, and unlawful assault.

25. He has several convictions for resisting police, convictions for assaulting police, and several convictions for stating a false name and address. In respect of public order offences, the Applicant has been convicted of being drunk in a public place and using indecent language. He has breached orders of the Court, contravened Community Corrections Orders, possessed unauthorised items in gaol, dealt in proceeds suspected to be the proceeds of crime and possessed a controlled weapon without excuse.

26. By any objective measure, Mr Muhumud has amassed a substantial criminal record, a fact he did not resile from in his evidence at the hearing.

    The 2019 convictions

27. Before the Tribunal was the transcript of the sentencing remarks in the County Court in February 2019. The Judge referred to the fact that the Applicant had been convicted by a jury of three counts of Armed Robbery. The Judge accepted that each of these offences were committed while Mr Muhumud was in company with another offender, who will be called ‘OD’, who the Court accepted was the principal offender. OD lived with his girlfriend in a public housing unit and the Applicant was staying with them. The offending took place in a 24-hour period and involved retail premises.

28. In the first incident, OD and the Applicant went to a bottle shop. OD threatened the shop attendant with a screwdriver, and CCTV footage showed the Applicant taking a six-pack of beer. The attendant had alerted his manager and a patron of an adjacent hotel. OD and the Applicant then returned to the bottle shop. While OD waved his screwdriver about, the Applicant approached the men and threw a stubby of beer at them. This led to the conviction for throwing a missile to injure. Mr Muhumud then went to a fridge, took another six-pack of beer, and threw another stubby at the manager, injuring his hand. That led to the conviction for unlawful assault.

29. Later the same day, OD and the Applicant attended a sandwich shop. The sole employee was closing up at the time. OD showed the employee he had a concealed knife. As the employee opened the till, the Applicant walked around the counter and pulled the cash drawer out. CCTV footage showed Mr Muhumud walking out of the shop with the cash drawer. At the time of these offences, the Applicant was on bail for an earlier shopsteal charge.

30. The Judge accepted that OD was the principal in relation to these robberies, but that the Applicant “actively participated in all three armed robberies with [OD]…”. His Honour described the offending as “lower mid-range offending”, noting that they were all committed at night against what he described as soft targets who were alone in two instances. He noted that the offending was not sophisticated and Mr Muhumud did not attempt to conceal his identity, nor did he threaten the victims. However, the seriousness of the offending was compounded because of the weapons carried by OD. The Judge said (GD, p 49):

    Your offences appear to have been motivated by your need to obtain alcohol and/or money to buy alcohol, which you regularly drink to excess. As your counsel fairly accepted, while this provides some explanation for why you committed these offences it is not a mitigating circumstance in and of itself.

31. The Judge referred to the Applicant’s circumstances of growing up in Somalia and fleeing with his family owing to the civil war there.  They lived in refugee camps before Mr Muhumud came to Australia aged 17, in company with his mother and six surviving siblings. His Honour noted that from 2014 to 2016, the Applicant returned to Somalia and discovered that his father, whom he had thought to be dead, was still alive. During that period, Mr Muhumud married, and his wife gave birth to a daughter.

32. The Judge referred to the Applicant admitting that he has “uncontrollably drunk alcohol for many years”. He also had a daily cannabis habit. A clinical psychologist prepared a report at the request of Mr Muhumud’s lawyers for submission to the Court. The psychologist diagnosed that the Applicant was suffering from post-traumatic stress disorder (‘PTSD’), alcohol dependence disorder and cannabis use disorder.

33. The psychologist noted that the Applicant’s level of insight regarding the present offending was only moderate and that his level of judgement has been “significantly impaired over the years owing to [his] high degree of intoxication and an inability to make clear and reasoned decisions.”

34. The psychologist administered the Wechsler Adult Intelligence Scale – Fourth Edition and assessed the Applicant’s full-scale IQ as being 71, which placed him within the lowest 3 percentile of the population and within the category of “borderline cognitive functioning”.  The Judge therefore moderated the sentence imposed and decided that the Applicant’s moral culpability was lessened by reason of intellectual disability (GD, pp 52-53).

35. He imposed a total effective sentence of imprisonment for four years, six months and 28 days with a minimum of three years to be served before Mr Muhumud was eligible for parole.  A period of 474 days in custody was to be counted as time already served.

    The 2006 convictions

36. Before the Tribunal was the transcript of the sentencing remarks of the County Court of Victoria in December 2006 relating to Mr Muhumud’s guilty pleas for Rape, Assault with Intent to Rape, and Common Assault.

37. The offending took place in November 2005 around 3.30 pm in broad daylight. The Applicant lived near the place where the offences occurred. He approached and, in the words of Her Honour, “jumped on” a woman who was called ‘AB’, who was walking down a street near her home. She was a 33-year-old woman who the Applicant did not know, except by sight.

38. Her Honour stated (GD, p 62):

    You jumped on her – pushed her against a concrete garden bed, and having slapped her across the face with an open hand as she struggled, you tried to kiss her lips and then you digitally penetrated her. That is, that you inserted your fingers into her vagina and then you digitally raped her. She was struggling – resisting, telling you to get off her, and trying to get away from you. You were undeterred by this as you were undeterred by a passer-by – somebody apparently known to you, who told you to stop, but you continued.

    You then dragged the victim, AB, from the area where you had first sexually assaulted her, into a more secluded area – a car park away from the road and to the side of the building where the first assault took place. She was again struggling and resisting you but you dragged her into the car park area, pulling her skirt off as you went, and then pushing her up against a window pulled the rest of her clothing down, pulled your clothing down, and tried to penetrate her with your penis. You were unsuccessful in doing that mainly because other people intervened, told you again to stop, and then when you saw other people coming around, you ran away…

    You then ran away, and shortly thereafter were seen attempting to climb over the back fence of the second victim’s home. I shall call her CD, the victim of Count 3.  She saw you trying to climb over the back fence of her house nearby where the rape and assault with intent to rape occurred. She asked you to go around to the front of her house rather than trying to come over the back fence, and you then, after a number of attempts where you asked her for money, climbed over the fence, came towards her, grabbed her by the throat with one hand, and as she was struggling and trying to scream out for help you tried to put your other hand over her mouth.  You forced her back towards the garden shed and had her actually backed up against the shed. She, too, struggled and tried to resist you and managed to hit you with her mobile phone with sufficient force to make you break contact and then run away.

1. The Judge read into the Court record remarks made by the victims, AB and CD about the continuing effect of the assaults on them. Her Honour noted that, although Mr Muhumud did not know it, AB suffered from an intellectual disability. 

2. The Judge noted that the Applicant was significantly intoxicated at the time, which did not provide a lawful excuse but did provide some context. Her Honour noted a psychological report which recorded “a degree of cognitive impairment” and the trauma of Mr Muhumud’s early childhood. The Judge noted that the Applicant had no prior offending and was only 19 at the time of sentencing, and that he had a traumatic childhood and great difficulty in settling into Australian life. Her Honour also noted the strong support of Mr Muhumud’s mother and sisters.

3. Her Honour imposed a total effective sentence of three years in a Youth Training Centre.

4. When questioned about the armed robbery offences in 2019, Mr Muhumud told the Tribunal he went to the bottle shop with OD and then saw that OD had a knife [sic – the Judge said it was a screwdriver], so he threw a stubby, intending to hit OD to deter him from using the knife. He said he had previously told OD not to use weapons when with him.

5. Mr Orchard asked the Applicant why he threw the stubby at the employees. He responded, “My aim wasn’t good”. He then told the Tribunal that he felt some loyalty to OD because “he took me in when I was homeless.”

6. In respect of the robbery at the sandwich shop, Mr Muhumud admitted taking the cash drawer and said, “I was trying to impress him [OD].”

7. Mr Muhumud agreed he was on bail at the time and that he had a pattern of breaching Court orders.

8. The Applicant was asked about a conviction for contravening a Family Violence Order. He said: “Always I came home drunk. They kicked me out, but there was never violence”. He agreed that the Order required him not to go to his mother’s house if he was intoxicated, which he nonetheless did.

9. Mr Orchard asked the Applicant about his return to Somalia in 2014. He said that he went back to the Ethiopia-Somalia border for two years. He said he did not drink alcohol or use drugs for the time he was there and agreed that he resumed drinking almost immediately after he came back to Australia.

10. Mr Orchard asked the Applicant whether he sought help with his drinking problem. He responded: “There was no help. I looked but couldn’t find it. Went to somewhere in Footscray. They kept saying come back. I kept falling back with the same people, drinking. I needed to walk away and start afresh.”

11. Mr Orchard asked Mr Muhumud about a Community Corrections Order (‘CCO’) imposed on him in 2017 and asked how he engaged. He replied: “I didn’t have time to engage. I didn’t last a week before I was back inside. It was a sort of a trap. I didn’t have time to do that.” 

12. When asked directly by the Tribunal if he engaged with the officer overseeing the CCO, he responded: “I didn’t even do that.”

13. Mr Muhumud was asked about convictions for assaulting police officers, but he said he could not remember the details. He agreed that it was serious to assault law enforcement officers.

14. Mr Orchard asked the Applicant about his conviction in 2016 for Rape, and asked how the incident came about. He responded:

    I was going to meet my girlfriend. On the way I saw a girl. She was troubled, asking people for cigarettes. I grabbed her, pushed her to the concrete. My friend said, ‘what are you doing?’. I came back to my senses. I ran.

15. When asked how the conversation began, the Applicant responded: “I was feeling sorry for her. Next minute I just grabbed her in the blink of an eye. It was 10 or 11 am, in the middle of the street”. He agreed passers-by urged him to stop: “Three or four. They were screaming at me, I was off my head, drunk.”

16. Mr Orchard put to the Applicant that he then dragged the victim away, pulling clothing off and attempted penetration. He responded: “I didn’t put my penis in. My lawyer said plead guilty. I was scared of the gaol. I say I am guilty of assaulting the girl but I didn’t put my finger in.”

17. The Tribunal asked Mr Muhumud directly how he can be sure he did not sexually assault the victim when he was drunk. He responded: “I was trying to scare her. Putting the finger in was not me. This is not how I was raised in Africa. To discipline her, scare her so she didn’t stand around asking for cigarettes.”

18. When asked about the second victim, Mr Muhumud said: “I jumped the fence. A woman asked, ‘what are you doing?’  She hit me with a telephone or something.”

19. Mr Orchard pointed out that the Court record stated that he grabbed the victim by the throat. The Applicant responded: “I don’t remember doing that. Maybe I did, I don’t know.”

20. Mr Orchard put to the Applicant that he was picking women at random in an attempt to rape them. Mr Muhumud replied: “That’s what you say.  For the second woman, I don’t know why I did that.”

21. The Respondent’s solicitor noted that the first victim stated that she could not smell alcohol on the Applicant’s breath and asked him if he was drunk at the time. He responded: “One hundred per cent, I was drunk. In a million years I wouldn’t do something like that. It’s not me or how I’ve been raised. I’ve been raised with a lot of sisters.”

22. The Tribunal asked Mr Muhumud why he pleaded guilty to Rape if he believes he did not digitally penetrate the victim. He responded: “I assaulted her by grabbing her by the throat.  I told them I didn’t do it. Scared of the big gaol. I wanted to go to juvie and go horse riding.  I know deep in my heart I didn’t do it. I did assault the girl badly but I didn’t put the finger in.”

23. The Applicant agreed that he pulled the skirt off the first victim and pulled his own clothing down. He said “Yes, maybe I was angry or confused. I don’t know why I did what I did. I can’t change it. Take full responsibility.”

24. Paragraph 8.1.1(1)(d) of the Direction requires the Tribunal to consider the frequency of offending. When the learned Judge sentenced Mr Muhumud in relation to the sexual and assault offences in 2006, she took into account that he had no prior offences. It is a sad fact that the ACIC Report illustrates a most significant list of offending that subsequently ensued.

25. Paragraph 8.1.1(1)(e) of the Direction requires the Tribunal to have regard to the cumulative effect of repeated offending. There is not only repeated offending, but repeated offending of similar type, in relation to theft, stealing and assault offences.

26. Paragraph 8.1.1(1)(f) and (g) require the Tribunal  to have regard to any false or misleading information given by the Applicant to the Department or whether he has re-offended since being given a formal warning about the possible effect on his immigration status by the Department, noting that the absence of a warning should not be considered to be in his favour. There is no evidence of false information being given to the Department.

27. However, Mr Muhumud was formally warned by the Department on 26 May 2009 of the consequences of further offending in regard to his visa (GD, pp 87-89). He went on to offend on a significant scale, on many occasions.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)

28. The Direction requires the Tribunal to consider both the nature of harm should the Applicant engage in further criminal or other serious conduct and the likelihood of him so engaging.

29. The Courts convicted the Applicant of offences on two occasions in 2006, two occasions in 2008, one occasion in 2009, two occasions in 2011, two occasions in 2012, two occasions in 2013 and one occasion in 2014. He then returned to Somalia for two years. On return, he was back before the Courts in September 2016, January 2017, May 2017, two occasions in 2018 and in February 2019 (for the convictions that triggered the cancellation of his visa). There is some evidence of him attending Alcoholics Anonymous meetings in prison, but no evidence of any other engagement or significant steps to curb his alcohol problem.

30. In his evidence, the Applicant was asked about marrying in Somalia and having a child, and how this did not seem to be a deterrent against reoffending when he came back to Australia. He said: “I went back to drinking. Maybe gaol was good”. When asked if he offended to be taken back into custody, he said: “It was easier to get ID in gaol. I didn’t deliberately offend to go to gaol. I had no money. Started to steal for food and alcohol. I knew eventually I would go to gaol. I was desperate for help.”

31. When asked explicitly what attempts he made to get help, Mr Muhumud said: “I tried to go to the community to get help, and other people. I tried with the African community, a soccer group. The leaders. Anything that can help. Just words, words, words, but no action.”

32. When asked if it was different now, the Applicant said: “Yes, it is different now. A few can help. The Islamic community. I did psychology 101. I needed this to put structure in my life.  To go back to my roots and my religion.”

33. The Applicant said as soon as he is released from immigration detention, he would go to the Islamic Council of Victoria. He said apart from doing a psychology course he did an anti-violence course in prison and planned to go back to school “but mostly I want to spend time with my father and the kids.”

34. Mr Muhumud said he would live with his mother or his sister, Ms JM, if released. He agreed that involvement with the Islamic Council was voluntary and it was all up to him. He said he knew they would help him get a job.

35. The Tribunal was particularly impressed with the oral evidence of Mr MM, who is the coordinator of Muslim Connect, a community reintegration programme for Victorian Muslims exiting the prison system.  Mr MM said that he had spoken to the Applicant about two months before the hearing, and a caseworker had engaged with him before that. Mr MM expanded on his letter, which was in evidence (Exhibit A5) about the services offered. He said nothing had yet been booked for Mr Muhumud. He said the Applicant seemed genuine about wanting to engage with the range of services his organisation can offer.

36. The Applicant agreed that he had been given chances before by the Minister’s Department.  When asked what has changed, he responded:

    Me. I want to be better for myself. I have done programmes. I understand my past wrongs. I have to live with it. I am ready to do more programmes. I will keep busy mentally and physically and go back to playing soccer. My brother got killed in Mogadishu.

37. The Applicant has offended on many occasions, and on some 20 of these the Courts have decided a prison sentence was merited. Although the evidence of Mr MM is that he appears to have genuinely responded to plans for future engagement and support on the one hand, on the other hand, Mr Muhumud’s evidence at the hearing showed little insight into the gravity of his offending. He denied elements of his most recent offending, including when he threw full stubbies at employees of the bottle shop, injuring one of them. He suggested he was throwing these at his fellow offender. This claim is completely implausible.

38. More concerning is his denial, many years later, of the sexual offences. The Tribunal is unable to go behind the findings of a Court, which in this case included a finding that he had digitally penetrated a victim. The Applicant denied that he did this.  In response to direct questions from the Tribunal about the second attack on the first victim, the Applicant admitted tearing the skirt from the victim and lowering his own clothing to effect the second sexual assault but then denied that he was attempting to do just that. The Tribunal finds that this evidence was given expressly to minimise or downplay his offending. The inevitable conclusion is that he either lacks insight into what he did or that his remorse is qualified. Either way, this evidence illustrates a lack of acceptance by Mr Muhumud of his criminal actions, which adds to the Tribunal’s conclusion that he is a real risk of further criminal or other serious misconduct.

39. Overall, the Tribunal finds that this consideration weighs heavily against revoking the mandatory cancellation of the visa.

    Family violence committed by the non-citizen (paragraph 8.2)

40. Paragraph 8.2 states:

    (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…

    (2)         This consideration is relevant in circumstances where:

    (a)A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    (b)There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

41. The Direction requires the Tribunal to consider the frequency of the conduct, and whether there is any trend of increasing seriousness; the cumulative effect of repeated acts of family violence; rehabilitation achieved at the time of the decision since the person’s last known act of family violence, including:

    ·The extent to which the person accepts responsibility for their family violence related conduct;

    ·The extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse, particularly children; and

    ·Efforts to address factors which contributed to their conduct.

42. There is some evidence in the ACIC Report of the Applicant breaching family violence orders. Mr Muhumud said these were orders which were designed to prohibit him going back to his mother’s house if intoxicated, and he admitted that he breached them. There was no evidence otherwise of family violence offending.

43. Because there is evidence of breaching domestic violence orders, if not explicit evidence of any domestic violence offending, the Tribunal finds that this consideration weighs slightly against revoking the mandatory cancellation of the visa.

    Best interests of minor children in Australia affected by the decision (paragraph 8.3)

44. The Tribunal is required to make a determination regarding the best interests of any relevant minor children who may be affected by the decision. The Direction requires the Tribunal to make separate determinations about relevant minor children where there is evidence that their interests might differ.

45. Ms DM in her evidence said that she had four sons, three of whom are minors. She said her siblings altogether have ten minor children. Ms JM said that the Applicant had a good relationship with her children and “they are always asking when he is coming out”. In her evidence, Ms JM confirmed that she has six children, including twins, all under the age of 10. She said Mr Muhumud has a good relationship with his nieces and nephews “he buys them teddy bears and plays with them in the park a lot.”

46. The Tribunal is satisfied to make a determination that it would be in the best interests of the relevant children for the Applicant’s visa to be restored.  Both his sisters gave evidence that when he was not affected by alcohol, he was a good and kind brother and uncle. However, the weight that attaches to this consideration is lessened because Mr Muhumud does not play a parental role in relation to any of these children, other persons do, and he has had frequent periods of absence from their lives when either incarcerated or abroad.

47. This consideration weighs slightly in favour of revoking the mandatory cancellation of the visa. 

    Expectations of the Australian Community (paragraph 8.4)

48. Paragraphs 8.4(1) and (2) of the Direction state:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia, of the following kind:

    …

49. The expectation of the Australian community is taken to be a “norm”. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The Court held that it is not for a decision-maker to make his or her own personal assessment of what the “expectations” of the Australian community may be. The expectations articulated in the Direction are “deemed”; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other evaluative process. 

50. Direction No. 90, issued after FYBR, imports the statement that the expectations of the Australian community are to be considered as a “norm”, which acknowledges the approach taken by the plurality of the Court in FYBR. Accordingly, while the expectations of the community are “deemed” to weigh against an applicant, the relative weight will be affected by circumstances in the individual case.

51. Mr Muhumud has a long history of offending, beginning with very serious offending. Some of the offences may be regarded at the lower end of the spectrum, such as indecent language or stealing a bicycle. But the variety of offending also includes, as outlined above, several crimes against the person other than the sexual offences, plus additional crimes against authority such as police officers and orders of the Court. He has also habitually thieved and stolen goods. While it may be that he was not the one armed in the most recent offence, he was a willing participant in three armed robberies that day.

52. The Courts have recorded that the Applicant does not seem to have an insight into his offending, and his evidence before the Tribunal echoed that. While he might appreciate that he has done wrong, the Tribunal is not convinced that he is invested in strategies to change his course of action in the future. In particular, the Tribunal completely dismissed his attempt to minimise his sexual offending by suggesting it was somehow linked to “disciplining” the victim. It was half-formed and not consistent with the evidence of Ms JM when she was asked directly whether that sort of practice would be at all acceptable in Somalia or was part of African culture, and she confirmed it would not, and is not.

53. I conclude that the expectation of the community would be that his visa is not restored. The weight of that expectation would be relatively heavy.

    OTHER CONSIDERATIONS

    International non-refoulement obligations (paragraph 9.1)

54. The Direction sets out that a non-refoulement obligation is an obligation on Australia not to forcibly return, deport or expel a person to a place where they would be at risk of a specific type of harm. Australia has international treaty obligations which it must honour, through the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (‘the Refugees Convention’), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol.

1. Mr Muhumud claims (GD, pp 141-150) that he is owed non-refoulement obligations because he has a genuine fear of harm in the form of harassment, torture, and possible death from militant groups in Somalia such as Al-Shabaab and clan militias. Supporting this claim, he states he is a member of the Madhiban clan. He has been absent from Somalia for long periods and has a connexion with the west; he disagrees with Al-Shabaab’s interpretation of Islam. He has mental health conditions and an intellectual disability.

2. Some of these claims will be dealt with later in these reasons under the extent of impediments if the Applicant is returned to Somalia. In respect to his clan membership, there was no further evidence that Mr Muhumud would be marked out for particular attention should he return to Somalia, nor any evidence that other members of his family, also of that clan (notably his mother currently visiting Somalia and his father, who has recently emigrated from there) faced a real risk of persecution.  In their oral evidence neither Ms DM nor Ms JM expressed a view about the security situation in Somalia. 

3. Mr YA did refer to “insecurity” in Somalia in a general sense. He said in his written statement (Exhibit A2): “Mustafa does not know Somalia – he will encounter many problems if he is sent back now. There is still much insecurity. Because of this I am afraid he may not survive.”

4. Ms DM wrote similarly. She said (Exhibit A3):

   I don’t believe Mustafa would survive if he was sent back to Somalia. He would have so many difficulties. The thought of him being locked up in immigration detention is so bad, especially for a person who is already struggling like Mustafa is. It would be hard for Mustafa to survive this also.  

5. The Tribunal takes Ms DM to mean that the Applicant is struggling because of his historical alcohol dependence, which would potentially be a hurdle if he was deported, rather than a reference to the political circumstances in that country.

6. This does not mean that the Tribunal does not accept the conclusion in the DFAT Country Information Report – Somalia (‘CIR’) that the political and judicial architecture of Somalia does not have the capacity to provide effective protection from violence and criminality that remains widespread in the nation. The CIR states (paragraph 5.1):

   DFAT assesses that, in practice, the formal justice and security systems in Somalia do not have the ability to provide effective protection for the majority of the community and, in some cases, state actors such as the Somali National Army (SNA) and the police are the perpetrators of human rights abuses. Civilian authorities do not have sufficient control of the security forces and impunity and corruption is widespread in Somalia, with very limited access to avenues of redress.  The majority clans rely on their own militia and alliances with other clans for protection. Minor sub-clans have limited protection from clan militia and those outside the clan system (such as Bantu) have none.

7. Mr Muhumud told the Tribunal that there were “rebels” in the camp where he lived in the period from 2014-2016, and some of them were “spies”. The Tribunal accepts that there may well have been insurgents, especially as the Applicant was in a region which has historically been the centre of the border conflict between Somalia and Ethiopia. However, the Applicant lived with this ever-present risk for two years and, on his evidence, worked, married, raised a family and re-connected with his father without apparently facing any personal risk or threat.

8. The Respondent noted that the sentencing Judge referred to the Applicant spending two years back in Somalia. The Respondent noted that Mr Muhumud flew to Addis Ababa using an Australian travel document and that he would have needed a visa to enter Ethiopia. In his evidence, Mr Muhumud said that a visa had been obtained for him “from Canberra” (by which the Tribunal took him to mean the Ethiopian Embassy there). However, when his sister Ms DM gave evidence, she said that after he had flown to the Ethiopian capital, they received a telephone call because Mr Muhumud had arrived there but did not have a visa.  She did not say how the matter was resolved.

9. In her evidence when asked by Mr Orchard whether her brother travelled into Somalia, his sister Ms JM said that he went to Jijiga, which is on the Ethiopian side of the border. She agreed that her father had lived in Borama, which is a city in Somaliland, an area recognised by the United Nations as de jure part of Somalia. She also said that Mr Muhumud’s wife lives in both Jijiga and sometimes in Borama and agreed that there is a significant flow of Somalian people back and forth across the Somalia-Ethiopia border.

10. In his evidence the Applicant’s father was asked where he lived before coming to Australia.  He responded that he lived in Borama in Somalia and then in Ethiopia. He told the Tribunal he was living in Borama when the Applicant arrived in Africa in 2014. Mr Orchard asked whether the Applicant visited him. Mr YA responded: “I went to Ethiopia and met him there. He never came to Borama”. Mr YA told the Tribunal that the Applicant and his wife married in Ethiopia.

11. As recorded above, the sentencing Judge in 2019 referred to the Applicant returning to Somalia for two years from 2014 to 2016. Before the Tribunal was an incoming passenger card filled in by Mr Muhumud on his return to Australia in which he answered the question relating to the country in which he spent most time abroad by writing “Somalia”. When asked about this in relation to his contention that he went to the Ethiopian side of the Ethiopia-Somalia border, the Applicant said: “The land is Somalia. They just took it. I didn’t think, just put it down. I didn’t set foot in Somalia.”

12. Mr Muhumud said that he flew to Addis Ababa and then on a smaller plane to Sheder. He said he travelled on an Australian travel document and obtained a visa for Ethiopia from Canberra. He said while he was abroad, he worked at various jobs, “mechanic, washing cars, building a house, concreting, anything...”. He said he rented a house with the assistance of his parents.

13. Ms JM’s evidence was that because the Applicant was drinking a lot, a family decision was taken that he should go to Jijiga. The Tribunal notes that Jijiga is the capital of the Somali Region of Ethiopia, near the border with Somalia. She said they took him to the airport and later received a phone call when he arrived in Addis Ababa because Mr Muhumud had not obtained a visa to travel to Ethiopia. She said they chose Jijiga because a cousin, the son of her father’s brother, lives there. Ms JM explained to the Tribunal that there is a significant Somali population in Jijiga.

14. Ms JM explained that her mother is currently in Borama, having travelled there last year after the sad death of another son. Ms JM said that her mother had taken the opportunity to visit the Applicant’s wife and daughter during her visit.

15. The Respondent urged the Tribunal to find that the Applicant returned to Somalia in 2014, or at least visited there when he was in Jijiga for the two-year period until 2016. The Tribunal accepts that the Judge referred to “Somalia”, but also notes that Jijiga is the capital of the Somaliland Region of Ethiopia and that some of the territory is disputed. The Tribunal cannot make a definitive finding on the evidence before it. It may be that the Applicant entered in Somalia during the period 2014-2016, or he may have stayed on the Ethiopian side of the border. He did not say in his oral evidence or submissions at the hearing that he was fearful of entering Somalia.  Given that the Judge referred to him being in Somalia in his sentencing remarks, presumably on submissions made on Mr Muhumud’s behalf, and that he wrote ‘Somalia’ on his incoming passenger card on returning to Australia, the Tribunal finds that it is likely that he did enter that country for at least part of the time he was in Africa between 2014 and 2016.

16. Regarding the Applicant’s evidence that his brother was “killed in Mogadishu”, this was not the evidence of his father. Mr YA said that this son died in Borama as the result of a stroke after an illness. It is the death of this son which caused the Applicant’s mother to travel back to Borama in late 2021 to make family arrangements.  The Tribunal prefers Mr YA’s evidence to that of the Applicant in relation to this matter.

17. The Tribunal accepts that the security situation in Somalia is “highly volatile and security incidents and crime as a common feature of everyday life” (paragraph 2.25 of the CIR). It is reasonable for the Applicant to raise a concern about generalised violence, but that is a risk regrettably present for all citizens of Somalia. There is no evidence in the CIR or in the Applicant’s or his witnesses’ supporting statements that Mr Muhumud’s views on Islam or his mental health conditions or possible intellectual disability would single him out for particularised adverse attention if he was repatriated.    

18. Running counter to his argument that he would face personal adverse attention is the fact that he voluntarily (if at the urging of his mother and sisters) returned to the area and lived at the Ethiopia-Somalia border for two years. He told the Tribunal about the various employment he engaged in and that his parents assisted him to rent a house. He married while there and had a child. He did not in his oral evidence or submissions make any claims for concerns about his safety, or indeed about the safety of his wife and daughter who reside in Borama and Jijiga, or his mother who is currently on an extended visit to Borama.

19. The Tribunal notes that Mr Muhumud’s visa that was cancelled was not a protection visa.  The effect of cancellation of his visa also took away any other visa application he might have had pending before the Minister’s Department, with the explicit exception that he is entitled to apply for a protection visa. During the hearing the Tribunal noted that the High Court of Australia has recently decided Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (‘M1’).

20. In M1, the majority of the Court (Kiefel CJ, Keane, Gordon and Steward JJ, with Gageler J concurring as to result) held that in deciding whether there was another reason to revoke the mandatory cancellation of M1’s visa under section 501CA(4)(b)(ii) of the Act in a case where M1 was able to apply for a protection visa:

    ·The Minister’s delegate was required to read, identify, understand, and evaluate the representations made in response to the invitation issued to the applicant under section 501CA(3)(b) that raised a potential breach of the international non-refoulement obligations of Australia;

    ·That Australia’s international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and

    ·To the extent that Australia’s international non-refoulement obligations are given effect in the Act, one available outcome for the delegate was to defer assessment of whether M1 was owed those non-refoulement obligations on the basis that it was open to M1 to apply for a protection visa.

21. The Respondent made written submissions to the Tribunal at the conclusion of the hearing and submitted that, although the judgment in M1 related to a decision by a Minister’s delegate, there is no evident reason why the High Court’s reasoning should not also apply to the Tribunal ‘standing in the shoes’ of a delegate on review.

22. The Tribunal concludes that the decision in M1 is applicable to the task before the Tribunal because, like a delegate but unlike the Minister when acting personally, the Tribunal must apply any direction made under section 499 of the Act (in this case the Direction), which frames the way non-refoulement obligations should be considered by the Tribunal.

23. The Applicant, assisted by legal officers from Refugee Legal, also made written submissions in relation to M1 and urged the Tribunal to consider whether Mr Muhumud’s claims engage Australia’s non-refoulement claims on the basis that, should the decision be affirmed and should the Applicant then apply for a protection visa, there was a possibility such an application might be refused on the grounds he does not satisfy the criterion in section 36(1C) of the Act. The Applicant acknowledged that any delegate considering an application for a protection visa is bound by another direction made under section 499 (Direction No. 75) to first consider a person’s claims to engage non-refoulement obligations under sections 36(2)(a) and 36(2)(aa) of the Act, before addressing other criteria.

24. The Tribunal does not accept this written submission made on behalf of the Applicant in the context that it poses several hypotheses, which are then submitted to be the basis for a deeper assessment of Mr Muhumud’s claims. The Tribunal must take care to confine itself to the question before it, rather than try and anticipate some further action the Applicant might take, and then pre-empt certain outcomes and tailor conclusions on the basis of such hypotheses.

25. The Tribunal concludes that on the material before it, it is unable to make a finding in this particular case that Australia’s international non-refoulement obligations are enlivened.

26. Accordingly, the Tribunal assigns neutral weight to this consideration.

    Extent of impediments if removed (paragraph 9.2)

27. The Tribunal must consider the extent of any impediments the Applicant may face if removed from Australia to Somalia in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country, taking into account his age and health, any substantial language or cultural barriers and any social, medical, and economic support available to him.

28. The Applicant in response to questions from the Respondent said he was in good physical health. When asked if he had any known mental health conditions, he said “Not really. I haven’t seen anyone, but would like to find out.”

29. The Tribunal notes a reference to PTSD and a possible intellectual disorder in the Court transcript. It also notes the report of a psychologist suggesting that the Applicant has an IQ of 71. The Tribunal is not competent to dispute that assessment but does note that at the conclusion of the first day of hearing, it was suggested to the Applicant that he might prepare closing submissions to make after the remaining witness had given evidence. On the second day, when invited to make a closing submission, the Applicant read from several pages of notes he had written and presented a coherent set of submissions for the Tribunal’s consideration. The Tribunal was left with the impression that he is not an unintelligent man, but that excessive alcohol use has taken its toll, especially on his ability to recall past events.

30. However, the Tribunal accepts that a clinical psychologist writing a report for a Court has diagnosed a condition of PTSD. This places Mr Muhumud in a special category where the care for this mental health condition in Somalia would be significantly less available than treatment he could receive in Australia. The fact that the Applicant himself may not appreciate he has a mental health condition does not dilute this fact because, in fact, his lack of awareness may make him less likely to seek appropriate treatment. The CIR states, baldly (paragraph 2.11): “In practice, there is no functioning national health system and access to healthcare services is severely limited.” 

31. Although Mr Muhumud is not an asylum-seeker, it is relevant that the CIR also states (at paragraph 5.16) that the Government of Somalia released a policy paper in 2015 stating, in relation to failed asylum-seekers being returned, inter alia, that:

    Returnees in need of psychological and mental health support cannot be returned to Somalia at present.

32. Apart from English, the Applicant told the Tribunal he can speak Somali and Swahili and a local language, and said he used a mix of languages to get by when he was in Ethiopia. The Tribunal considers that, because there is some evidence of PTSD and an ingrained alcohol disorder (in remission while in a protective environment), the services available to Mr Muhumud, if he were repatriated, may not be adequate, noting his evidence that he did not drink alcohol for two years when he returned to Africa in the period 2014-2016.

33. Overall, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.

    Impact on victims (paragraph 9.3)

34. The Direction requires the Tribunal to consider the impact of the cancellation of the visa on members of the Australian community, including victims of the Applicant’s criminal behaviour, where that information is available.

35. The Tribunal interprets this to mean; first, that a victim of a non-citizen’s offending must be aware of the immigration action taken by the Minister or delegate and, second, that they must have expressed a view that is before the decision-maker. There was no evidence before the Tribunal that this was the case. The victim impact statements read out by the Judges in the two sentencing episodes extracted above did not express a view on the immigration status of the Applicant.

36. This consideration therefore weighs neutrally.

    Links to the Australian community (paragraph 9.4)

    Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)

37. This consideration requires the Tribunal to consider the impact of the decision to revoke the visa on Mr Muhumud’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. The Tribunal must have regard to how long the Applicant has resided in Australia, giving less weight where he offended soon after arriving in Australia and more weight to time he has spent contributing positively to Australia.

38. Mr Muhumud first arrived in Australia in 2004. He committed serious sexual offences in 2005 and has offended frequently since that time. The Applicant had two brothers who had died in Somalia. His father, who was missing for many years, has now reunited with the family, and emigrated to Australia. He has five sisters residing here, together with 13 nieces and nephews. Mr Muhumud has a wife and a young daughter in Somalia, who he told the Tribunal he would like ultimately to bring to Australia.

39. The Applicant has not held any significant employment positions in Australia, and much of his adult life has either been in custody or on social welfare. It is accepted that, apart from his wife and daughter, his parents and all the rest of his immediate surviving family are in Australia.  His oral submission that his long-term intention was to sponsor his wife and daughter, or have them sponsored, to resettle in Australia is also accepted.

40. Because of the Applicant’s extensive links with family in Australia who are permanent visa holders, the Tribunal finds that this sub-consideration weighs in favour of revoking the mandatory cancellation of the visa, and relatively heavily so.

    Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)

41. This part of the Direction notes that, in assessing impact on Australian business interests, an employment link would generally only be given weight where the decision under review would “significantly compromise the delivery of a major project, or delivery of an important service in Australia.”

42. The Applicant has not held any notable employment positions in Australia and, as an adult, has been on social welfare when not incarcerated or abroad. I do not consider this sub-consideration is relevant. 

43. The Tribunal’s overall assessment of the consideration of Links to the Australian community is that this consideration weighs relatively strongly in favour of revoking the mandatory cancellation of the Applicant’s visa.

    Additional consideration – some possibility of prolonged detention

1. It is noted that the visa that was cancelled was not a protection visa, nor was the visa Mr Muhumud held when he first came to Australia. It is nonetheless possible that, if the Tribunal affirms the delegate’s decision, Mr Muhumud would be held in immigration until he can practicably be returned to the country of reference, Somalia (under section 198 of the Act), or in the case he applies for a protection visa, until any such application is decided.

2. Mr Muhumud only recently entered immigration detention on the completion of his prison sentence. Immigration detention is a much more liberal environment than even a low-security prison because detainees have access to mobile telephones, the Internet, and similar facilities. It is, nonetheless, a custodial environment. Should the decision be affirmed and Mr Muhumud elect to apply for a protection visa, the Minister always has the power to grant a bridging visa or exercise his personal powers under sections 195A and 197AB in favour of the Applicant.

3. It is a matter of speculation by the Tribunal whether the Applicant would apply for a protection visa; he made no submissions either way at the hearing. It is, however, the case that, should he do so, it is likely in the absence of a residential determination he would face a longer period of detention. It is always open to the Applicant to indicate to the Minister’s Department that he wishes to be voluntarily repatriated, but that in the Tribunal’s assessment is unlikely given that he has brought this decision for review. 

4. There is no evidence before the Tribunal that the Minister might issue a residential determination or bridging visa or exercise any other of the discretionary powers available to the Minister under the Act. The reality is that in the event his visa is not restored, Mr Muhumud could remain in detention for an unknown further period.

5. Because a person is entitled to certainty of an outcome, the Tribunal finds that this additional consideration weighs slightly in favour of revoking the visa cancellation, but not heavily so, given that Mr Muhumud has not been in detention for a lengthy period.

   SUMMATION

6. The Tribunal is not confined to consider only the considerations as stipulated in the Direction, where on the facts they are relevant, but may consider any other relevant factor that is consistent with the tenor and purpose of the Act. The Tribunal has not identified any other matter not otherwise covered above.

7. Regarding the primary considerations, the first one relating to the protection of the Australian community weighs relatively strongly against the Applicant. The consideration relating to family violence weighs slightly against him. The consideration relating to the best interests of an affected minor child weighs slightly in favour of revoking the mandatory cancellation of the visa, but not as it would if he had a parental role in relation to any of the children whose interests are determined to be relevant. The consideration relating to the expectations of the Australian community weighs relatively heavily against revoking the mandatory cancellation.

8. Regarding the other considerations, the ones the Tribunal has found to be relevant are the links with the Australian community, which weighs in favour of Mr Muhumud, and the extent of impediments if removed, the weight of which also in favour of revocation. The prospects of prolonged detention also weigh slightly in favour of revoking the mandatory cancellation of the visa.

9. The Tribunal is not convinced Mr Muhumud has any significant insight into his offending, nor any clear plan to tackle the causes of it. His family have been consistently supportive, including, in some exasperation, arranging for him to return to Africa for a period to try and shrug off his alcohol problem, which, in large part, spurred his consequential offending.  Despite those best endeavours, while he says he abstained from alcohol while abroad, he quickly returned to it on returning to this country.  As the Respondent submitted, he has gone on to offend persistently since his return to Australia, and to offend more seriously.

10. The Tribunal does not find that there is any reason in this case for the general principle set out in the Direction that, primary considerations generally carry more weight than other considerations, to be displaced. The Tribunal finds that the discretion provided for in section 501CA(4) is not enlivened, so therefore the reviewable decision is affirmed.

    DECISION

11. The decision under review not to revoke the mandatory cancellation of the Applicant’s visa is affirmed.

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

........................[SGD]................................................

Associate

Dated: 23 May 2022

Dates of hearing:	12 and 13 May 2022
Applicant:	Mr Mustafa Yusuf Muhumud (Self-Represented)
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers