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

[2022] AATA 4856

NXGK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4856 (21 December 2022)

Division:GENERAL DIVISION

File Number(s):      2022/8031

Re:NXGK  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:21 December 2022

Date of written reasons:        1 February 2023

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

......[sgnd].............................................................

Senior Member Dr N A Manetta

MIGRATION – mandatory cancellation of visa – whether “another reason” for revocation of cancellation decision – Direction 90 – offending increasing in seriousness – serious character concerns relating to drug offences – primary considerations weigh against applicant – likelihood of indefinite detention – third country option unlikely – impediments in Somalia extreme – deprivation of liberty outweighs primary consideration – decision set aside and revocation of cancellation decision substituted

Legislation

Migration Act 1958 (Cth)

Cases

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497

Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286

WKMZ v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463

Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119

Secondary Materials

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member Dr N A Manetta

1 February 2023

1. After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.[1]  These are the reasons I read out to the parties with some minor amendments.

2. This is an application by “NXGK”, a person whose name is subject to a confidentiality order and to whom I shall refer in these reasons as “the applicant”. The applicant seeks a review in this Tribunal of a decision of the respondent’s delegate dated 28 September 2022. By this decision the delegate affirmed an earlier decision taken in the respondent’s department to cancel the applicant’s visa. This earlier decision was taken mandatorily under section 501(3A) of the Migration Act 1958 (“the Act”) after the applicant was sentenced to a term of imprisonment exceeding 12 months, part of which he was required to serve on a full-time basis in jail.  I shall describe the relevant offending in due course.

3. The applicant made a timely application for an internal review. The delegate responsible for the determination of that application was required to address two questions by section 501CA(4)(b). The first question was whether the applicant passed the so-called “character test” elaborated in section 501(6). The second question arose if the answer to the first question was “no”, and it was whether there was “another reason” for the cancellation decision to be revoked. In respect of this second question, the delegate was required to apply Direction 90 issued under section 499 of the Act.[2]

4. The delegate decided, in answer to the first question, that the applicant did not pass the character test. On my review, this decision was correct. A person who has been sentenced to a term of imprisonment of 12 months or more is taken not to pass the character test: see section 501(6)(a) and (7)(c).  In addressing the second question, the delegate identified and weighed the relevant considerations under Direction 90 and concluded that, on balance, they did not favour revocation of the cancellation decision. Accordingly, the delegate did not find that there was “another reason” for the cancellation decision to be revoked; and, as a consequence, the visa remained cancelled.

   TRIBUNAL’S TASK

5. Hearing the matter afresh on the evidence adduced before me, I must address the same two questions, but I have already indicated that the first question was correctly answered by the delegate.  In matters like this, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[3] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me.  Equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision on the evidence.   At the hearing before me, the applicant represented himself; Mr West represented the respondent.

   STATEMENT OF CONCLUSION

6. I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked. I now turn to set out the background facts and to explain my reasons for this conclusion.

   BACKGROUND FACTS

7. The applicant was born in Mogadishu, Somalia in 1995 on January 1. It would appear that the day and month of his birth have been assigned as matters of convenience.  Due to the ongoing war in Somalia, the applicant was removed to Eritrea with his family when he was two years old, and the family lived there in a refugee camp. He is the second oldest of many children born to his mother and father, who have only recently separated.  He moved to the refugee camp as a baby, as I say, and entered Australia in 2009 on a refugee visa. He was 14 years of age on arrival in Australia.  He has never returned to Somalia.

8. The applicant’s criminal history was before me: see Exhibit R1, pp 30-37. All of pages 31 to 37 ‒ namely, seven full pages ‒ contain the offences of which the applicant has been found guilty in Australia. I note that he commenced offending at the age of 18, namely in 2014.  I accept the respondent’s submissions in relation to the applicant’s offending as they appear in paragraphs [29]-[39] of the respondent’s Statement of Facts Issues and Contentions (“SOFIC”). I do not propose to go through the offending as I am delivering my reasons orally today.  I note, however, the following telling points, amongst others, in the respondent’s SOFIC:

   (a)  From 29 January 2019 to 14 May 2020, the applicant (i) broke into 15 vehicles and stole wallets and credit cards which were then used to commit fraud; (ii) stole two cars; (iii) drove unlicensed on three occasions; and (iv) breached his bail conditions 14 times;

   (b)  There have been serious instances of violence as described at para [36] of the SOFIC;

   (c)   The applicant has been sentenced to terms of imprisonment for 22 of his offences;

   (d)  The applicant has committed approximately 104 offences over an eight-year period.

9. There are a number of matters that stand out in relation to this offending.  First, the offending is extremely frequent, particularly given the applicant’s relative youth.  Secondly, many of the offences were committed whilst the applicant was on bail or probation or in circumstances where the offences otherwise constituted contraventions of court-imposed directions or requirements. Thirdly, much of the offending has been accompanied by drug abuse, which plainly suggests that the applicant’s conduct was disinhibited and his offending out of control.  It is a reasonable inference, too, that much of the offending took place to support drug purchases.  Fourthly, the applicant was required to serve some earlier sentences in jail (for example, the offences that appear at Exhibit R1, pp 34-35 against the dates 3 March 2017 and 24 April 2018) before he was required to serve the term of imprisonment that led to the cancellation of his visa.  This fairly clearly demonstrates that the applicant was not rehabilitated by his earlier experiences in jail.

10.  I also had before me a number of sets of sentencing remarks: see Exhibit R1, pp 38-53. There is a theme of repeated warnings that emerges from the remarks. The applicant was clearly warned in 2017 that further offending might lead to his deportation (Exhibit R1, p 52).  He was warned specifically on that occasion that he was being given a last opportunity and that he would enter the jail system if he did not make use of that opportunity. On 24 April 2018, the frustration of the bench was palpable in its remarks: Exhibit R1, pp 46-49. Reference is made to the applicant’s repeated offending, especially while on parole or bail, and to repeated opportunities for the applicant to rethink the choices being made by him up to that point in time. 

11.  On 14 October 2020, there is a reference again to the wasted opportunities that had been offered to the applicant to reform his life.  There is also a reference in the remarks (see Exhibit R1, p 43) to his drug addiction and to drugs having “got the better part” of him.   The sentences on that occasion were summarised by the Court as follows:  for failing to appear (four charges), one month’s imprisonment for each charge to be served cumulatively; on the enter premises charge, which was the most serious of the offences, 16 months’ imprisonment; on the unlawful use of motor vehicles charge, 12 months; on the unlawful entry of motor vehicle charge, three months; on the charges of stealing, fraud, possessing suspected stolen property and receiving tainted property and breach of bail, two months; and 14 days for possessing drugs and failing to care for a syringe. There were a further seven days’ imprisonment imposed in respect of offences of public nuisance, trespass, and unlicensed driving. All these terms were to be served concurrently but cumulatively upon the “fail to appear” sentences. On the charge of using a carriage service to menace harass, etc, six months’ imprisonment was imposed, but the applicant was to be released immediately upon entering into a recognisance in the sum of $2000. The applicant had spent 200 days in jail and the judge set a release date of 14 October 2020, that is, the day of sentencing.

12.  I note with great concern that there were 50 charges to which the applicant pleaded guilty on that day.

13.  On Friday, 14 May 2021, the Court sentenced the applicant in relation to further offences he had committed. Once again the offences were familiar. They involved entering premises and stealing by a break. On each of two charges, 15 months’ imprisonment was to be served cumulatively on all other sentences. There was a sentence of four months’ imprisonment imposed in respect of two counts of fraud and three breaches of bail and receiving tainted property.

14.  The applicant’s visa was cancelled mandatorily on 1 March 2021 at which time he must have been in jail. I assume this further period of jail (after his release on 14 October 2020) followed on from breaches of his parole conditions in connection with the commission of these latest offences.

REASONS

15.  I now turn to consider and apply Direction 90 in connection with the second question I identified at the commencement of these reasons.  I frequently refer to certain earlier prefatory remarks I made in the matter of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at paragraphs [32]ff in this regard.  I usually set these paragraphs out, and I do so again here:

32. I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

33.  I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

34.  First, remaining in Australia is a privilege conferred on noncitizens 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, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen 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 noncitizens 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 is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’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 insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

35.  I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

36.  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 section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight “generally” to primary considerations over other considerations.

16.   Under the Direction, I must take into account four primary considerations. The first such consideration is the protection of the Australian community from criminal or other serious conduct. In taking account of this consideration, I must bear in mind what appears in paragraph 8.1(1). I accept that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct. In particular,  I am to bear in mind the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they will not cause or threaten harm to individuals or the Australian community. I do bear that in mind. In this regard, it is clear that there have been numerous occasions when the applicant has not been law-abiding; nor has he respected the Australian court system, an important institution, as he has repeatedly breached bail and parole conditions when a degree of leniency had been deliberately shown to him. His behaviour has caused or threatened harm to individuals in the Australian community on multiple occasions.

17.  Subparagraph (2) of paragraph 8.1 requires me to give consideration to two matters; namely, first, the nature and seriousness of the applicant’s conduct to date; and, secondly, the risk to the Australian community should he commit further offences or engage in other serious conduct. The delegate who considered the matter sets out very helpfully, at paragraphs [16]-[26] of his reasons, the various categories of offences in which the applicant has engaged and the sentences: see Exhibit R1, pp 17-19.  I shall not recapitulate that analysis here.

18.  As many of the crimes were committed together, it is appropriate in my view that they be considered together; that is, that the applicant’s behaviour be considered as a whole. There have been very many fraud and stealing offences, including receiving tainted property,  accompanied by, or fuelled by, a dependence upon drugs.  These offences have often been accompanied by unlawful entry of premises or vehicles. There have been other offences involving driving without a licence and committing a public nuisance. Taken as a whole, the offending history must be regarded very seriously as repeated instances of defiant, anti-social offending. The repeated engagement in offences of dishonesty, involving as they did the unlawful breaking into premises or vehicles, while the applicant was drug-dependent (and using drugs unlawfully), gives rise to very serious concerns. I regard unlicensed driving as a very serious offence particularly where the driver is subject to the influence of drugs or alcohol. Injuries occur, and indeed innocent lives are lost, through unlawful driving of this sort. It is also appropriate, in my opinion, to consider the scale of the offending in considering the seriousness of the offending. Here there have been many, many offences, not simply a few offences.  The seriousness of the offending increases as a result of the scale.

19.  All in all, I regard the applicant’s offending, weighed as a whole, as very serious indeed particularly as much of it has occurred in defiance of conditions of bail or parole or of various court orders that were in place at the time. I am required by paragraph (c) to have regard to the sentences imposed. I do so. The most recent sentences are lengthy and mark out the seriousness of the offending. I note that the applicant has received leniency on many occasions. Indeed, some of the earlier sentences that were imposed may not have reflected the complete seriousness of the offending because of the leniency extended to him.

20.  So far as the frequency of the applicant’s offending is concerned (paragraph (d)), I note that the record speaks largely for itself: it contains a very long history of criminal offending. I would also say that there is a clear trend of increasing seriousness, which is reflected in the judicial remarks. I say this because the Courts have adverted to the leniency that the applicant has received on multiple occasions. This leniency was extended to him in order that he might seize the opportunity to rehabilitate himself. Moreover, the most recent offending occurred whilst the applicant has been on conditional liberty in the community. It is extremely serious for a person who is on parole to commit further offences. I regard, therefore, the trajectory, if I may use that expression, for this particular applicant as one of increasing seriousness and, indeed, escalation.

21.  I am required to have regard to the cumulative effect of repeated offending: paragraph (e).  There is no doubt that many members of the community have suffered quite substantially at the applicant’s hands.

22.  Paragraph (g) is also relevant here.  The applicant was explicitly warned that his visa was at risk and he was likely to be deported if he reoffended.  I have referred already to certain sentencing remarks where that was made plain.[4]  I take that into account.

23.  Under paragraph 8.1.2, I must consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. I bear in mind the principle that appears in subparagraph (1) without setting it out.  By subparagraph (2), in assessing the risk posed by the applicant to the Australian community, I must have regard to “cumulatively”, first, the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct, and, secondly, the likelihood of his so doing taking into account the matters that appear in subparagraphs (i) and (ii).

24.  The nature of the harm, on the assumption that the applicant reoffends, extends across a number of fields.  The invasion of private premises and the theft of property (including the misuse of credit cards and the like) can be extremely disruptive. There is also a very real sense of loss of privacy and a sense of invasion of one’s right to live in the community in a decent and law-abiding way without interference from others. I do not underestimate the effect of theft and of break-and-enters upon the community. It is extremely upsetting as well as disruptive to find property stolen. I regard the driving of a vehicle when unlicensed as a serious threat to the Australian community as road-users and pedestrians are put at unnecessary risk by this behaviour.

25.  I regard the use of drugs in and of itself to be a very serious threat to the Australian community. The use of unlawful drugs represents a choice by the user to participate in an evil trade, albeit as a consumer and, to some extent at least, as a victim and not a profit-maker.  But it is nevertheless true that a person who consumes drugs assists in their further spread within the community by providing cash resources to dealers who will only go on to make further deals in the community.

26.  I must have regard to the likelihood of the applicant reoffending. It is difficult to assess the likelihood given the absence of any professional or expert opinion in respect of this matter. I accept also that there have been multiple occasions when the applicant has been warned of the consequences for him personally (namely, jail and, at least on one occasion, deportation).  These warnings, and indeed the experience of jail itself, did not deter him from committing further offences. It is a reasonable inference from his record that the applicant was “out of control” in a sense and that he was somewhat compulsively committing crimes. In my opinion, if the applicant resumes his drug habit in any shape or form he will be unable to resist the temptation of stealing in order to support that habit (or simply because he is once again disinhibited).  He would simply start to reoffend in that case.

27.  On the other hand there are glimmers of hope. The applicant has now had an extended experience in jail and now immigration detention.  His visa was cancelled while he was in jail on 1 March 2021, and he has been in jail or immigration detention since at least that date up until the date of my oral decision. That is a period of approximately 22 months. 

28.  During that period, he has largely been drug-free according to the evidence before me.  I accept that he has taken Suboxone without being prescribed it whilst detained.  (Suboxone is a prescription medicine that assists those who are withdrawing from an addiction (e.g., to heroin or ice).)  But I do not see evidence of consistent misuse of that drug or other drugs that would challenge seriously the conclusion that the applicant has broken the cycle of regular physical dependence upon drugs.

29.  Moreover, the now lengthy experience of jail and immigration detention must have had a very sobering effect upon the applicant. The applicant has been faced with, indeed lived, the reality of what will occur if he continues to offend. He knows further offending will lead him back to jail and detention. Of course, it might be said that the reality of jail, although not of immigration detention as a precursor to deportation, was brought home to him in the past and it made no difference to him. That is true, but true to an extent only. The applicant has, I believe, finally come to an awareness in detention of how precarious his life has become. I accept also that he has probably become clearer in his thinking now that he is no longer caught in the cycle of misuse of drugs of dependence. He is also still relatively young. I accept that he genuinely wishes to embrace that future.

30.  But I cannot ignore the history of the applicant’s repeated failures to engage with the reality of his drug dependence. As I have said earlier, there was a palpable sense of frustration in the remarks of the Courts.  They could see that he was simply not making the positive efforts necessary to reform his life.

31.  The applicant’s plans on leaving immigration detention, if I set aside the decision under review, are to leave Queensland for Melbourne. There he will live with a family known to his own family. I accept the evidence given by the applicant’s brother that this family will accept him in, and I further accept the brother’s evidence that he will financially support the applicant while the latter establishes himself in work, possibly as a butcher, a field of employment in which he has already gathered experience. Those are undoubtedly positive signs.  I think the plan to move from Queensland makes sense since the applicant wishes to make a clean break with all bad former associates in Queensland.  But it nevertheless remains a fact that the applicant has misused drugs frequently in the past including in his own brother’s home where children were present.

32.  It is difficult to assess the risk of recidivism. Although I accept that the applicant has goodwill, I do believe there is a very real and substantial risk that he will turn once again to drugs. And I believe it is almost certain that any resumption of drug use will lead to the commission of further offences.

33.  I note that the nature of the harm and the risk of it recurring are to be considered “cumulatively”, and I do so.

34.  There is no family violence to address in this case.

35.  I must consider the best interests of minor children: paragraph 8.3.  The applicant has no children of his own. He is a sibling to certain minor children, however, and he also has nephews. One of the siblings is almost 18 and her interests can be, for all practical purposes, left to one side.    None of these relationships is parental.  I bear in mind also that the applicant must have been an absent figure in the lives of these minors while he was committing so many offences and was otherwise distracted by drug dependence.   I also take into account that if I were to set aside the decision under review, the applicant would move away from Queensland to Victoria which will make one-on-one contact with family members more difficult. I must also bear in mind the fact that he has a very poor criminal record which makes him a largely unsuitable contact for children at the present time; and if he were to return to drugs, which is still a very real risk, it would be better if all contact ceased.  All in all, I do not attach any significance to this consideration and it could not be in any event a “tipping point”, so to speak, in my decision-making.

36.  I must have regard to the expectations of the Australian community as a primary consideration: paragraph 8.4. I acknowledge that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen engages in serious conduct in breach of this expectation, the Australian community expects “as a norm” ‒ although not as an inflexible rule ‒ that the Government would not allow the non-citizen to remain in Australia. That is made plain in subparagraph (1) of paragraph 8.4. I accept what is put in subparagraph (2); namely, that there are serious character concerns about the applicant insofar as his past drug dependence and antisocial offending are concerned, and that in these circumstances the Australian community expects the applicant not to return to the community. These expectations apply irrespective of whether the applicant poses a measurable risk of causing physical harm to the Australian community: subparagraph (3). Moreover, I am to proceed on the basis of the Government’s views as articulated without independently assessing the expectations in a particular case: subparagraph (4). It is clear that the “expectations of the Australian community” consideration counts substantially against the applicant.

37.  All in all, I note that the applicant does not have any primary considerations weighing in his favour. That is a serious matter for me to weigh.

38.  The Direction requires me to consider so-called “other” considerations under paragraph 9. A non-exhaustive list of four such considerations is provided.  I come first to non-refoulement obligations. Mr West submitted to me that it was appropriate for me to defer consideration of any such obligations, and he cited in this respect the recent High Court decision of M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497, an authority dealing with an earlier direction, Direction 65.

39.  Direction 90, which I must apply, has a specific provision in relation to circumstances where, as is the case here, an applicant is likely to apply for a protection visa if the Tribunal affirms the decision under review.  Mr West submitted that the applicant is not disbarred from applying for such a protection visa because he has never held such a visa before, although he entered Australia as a refugee. I accept that part of his submission. Direction 90, however, suggests in paragraph 9.1(6) that in “an appropriate case” the decision-maker may assume in the non-citizen’s favour that the claimed harm will occur and make a decision on that basis.  Non-refoulement obligations have been raised for my consideration and these are evident, for example, at Exhibit R1, pp 102ff.  I have decided that this application may be decided even if I do not make the assumption referred to in paragraph 9.1(6), and I shall proceed on this basis.

40.  Even if I do not formally make the assumption that non-refoulement obligations are owed, I must still grapple, it seems to me, with any impediments that the applicant will face on return to Somalia if I affirm the decision under review.  I turn now to that matter.  I propose to deal with this aspect of the case on two assumptions; first, that the applicant is returned to Somalia, and, secondly, that the applicant is not returned to Somalia but faces a period of indefinite detention while a third-country option is explored.

41.  On the assumption that the applicant would end up being returned to Somalia if I affirmed the decision under review (i.e., on the assumption that no protection finding would be made in his favour as a part of a consideration of his subsequent protection-visa application) there are very significant impediments on removal. These impediments constitute a matter I am specifically  bound to consider under paragraph 9 as I have said.

42.  In my opinion, the applicant would face extreme impediments if he were removed to Somalia. He has never lived there; or, more accurately, he lived there for only the first two years of his life. The applicant gave evidence, which was not disputed by the respondent, that he has no family connections in Somalia itself since the family left for Eritrea. He would effectively be alone navigating what would be a very difficult environment for someone without family or other social connections. I accept that there is no language barrier, and that the applicant is otherwise a fit young man with transferable skills (for example, as a butcher) acquired in Australia.

43.  But the economic situation in Somalia is clearly dire. The information before me from the 2017 DFAT Report[5] suggests the most difficult of economic conditions. The DFAT Report was tendered by the respondent and it was not suggested that it is out of date.  I refer in particular to paragraphs [2.8]ff of the DFAT Report.  My own research has confirmed for me the ongoing reliability of the Report. I appreciate that I must not apply Australian standards of welfare. I further appreciate that I must have regard to the general living circumstances of other Somalians in weighing this consideration.  But I believe this applicant faces particular difficulties because he does not have a family or other network support available to him on arrival and has no familiarity with the country although he does speak the language. That differentiates his position substantially, it seems to me, from that of an average young male Somalian. I reiterate that the applicant has no personal experience of living in Somalia. In Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92, the Federal Court endorsed an approach of weighing impediments on removal where an individual’s situation may be properly differentiated from that faced by other community members. In addition, I would note that there is no doubt that this applicant is at particular risk of returning to crime to support himself should he find it difficult to support himself and fall in with bad company.

44. The other alternative, if I affirm the decision under review, is that the applicant will apply for a protection visa, there will be a protection finding made in his favour, but the delegate will decline to grant the visa in the exercise of his discretion under section 501. Given that the applicant had a refugee visa and there has not been a reinstatement of that visa by the delegate in this case, this scenario seems more likely than one where the applicant is found to have legitimate claims for protection and is granted a protection visa notwithstanding the obvious character concerns. Having received a favourable finding of being owed protection obligations, the applicant may not be removed to Somalia. That is clear law under the relatively recent amendments to the Act: see section 197C(3). In that event, the applicant will most likely face a period of “indefinite” detention and I use the term “indefinite” in the same way that it was used by the plurality in WKMZ v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463 at [123]; that is, detention with no fixed chronological end point and where the person has no means of ascertaining that end point.

45.  That becomes a very serious matter to weigh up because the period of detention will only be ended by either the securing of a third country option or the exercise by the Minister of his or her personal power to permit the applicant to reside in Australia.  The period of indefinite detention cannot be predicted, but it is not likely to be short in my view.

46.  The applicant has links to the Australian community. The applicant called evidence from a young woman in Melbourne and she confirmed the applicant’s evidence that they plan to marry. They first met some time ago but their relationship has only matured to that of a near-engaged couple in recent times. In fact, this development has occurred only while the applicant has been in detention.  It has been hard for me to decide what to make of this relationship. I accept that there are cultural differences at play here, and the arrangement of an engagement and marriage in this particular cultural context is by no means uncommon. But even allowing for cultural differences, I find it difficult to accept that the relationship can really be truly as serious as both the applicant and the witness claimed. They have not spent time together, and I do not accept that even in a relationship which will be governed by quite different cultural norms, there would not be any opportunity for time to be spent together by the would-be couple before a final decision is taken by each of them to commit to marriage. Thus, I feel I ought to discount the regard held by the witness for the applicant. She indicated a reasonable, if not complete, familiarity with the applicant’s criminal history, but I found some of her evidence concerning his character to be a little “starry-eyed” if I may use that expression. A more mature and balanced reflection on her side would have given greater weight to his criminal offending, to his misuse of drugs, and to his as yet uncertain prospects. I do not proceed, therefore, on the basis that there is, in fact, a prospective engagement that will be sustained over time. Since the relationship is one that has only progressed while the parties have been separated from one another, I do not treat the relationship as a true one of committed prospective fiancés.  I attach little weight to it.

47.  I accept that the applicant has some interest of his own that I ought to consider. In one sense, the only home he has known is Australia. He cannot be said to be a true Somalian in the sense that he had to leave the country as a baby. He is not, of course, Eritrean. He arrived in Australia at the age of 14, and so his latter years as a teenager and then young adult have all been spent in Australia. But I take into account the fact that the applicant has spent the entirety of his adult life offending in a very serious way in Australia.  He commenced offending soon after his arrival in Australia.

WEIGHING THE CONSIDERATIONS

48.  I turn now to weigh the various considerations I have identified. It will be recalled that I have identified two scenarios as the most likely; first, that the applicant is removed to Somalia and, secondly, that he faces a period of indefinite detention (again, noting that I am using this expression in the way that it was used by the plurality in WKMZ).  Had I believed that a different result to my weighing of the various considerations would ensue depending on which scenario is under consideration, it would have been necessary for me, I believe, to have decided which of the scenarios is the more likely one, and to base my decision on that scenario.  But I have decided that it does not matter which scenario is the more likely one: the result of my deliberations is the same.

49.  I bear in mind very much that the applicant has an extensive criminal history which has involved serious offending while he has been dependent on drugs. I bear in mind that all the primary considerations that I have identified as relevant count against him.  I bear in mind that I do not have a professional opinion to the effect that the applicant now poses a low risk of recidivism. I also bear in mind that my own assessment of risk indicates that there is a real and substantial risk of recidivism given especially the applicant’s personal circumstances and history.  Normally, a person in the applicant’s position would face removal.  I make that plain.  I bear in mind also that generally speaking primary considerations should be accorded more weight than the so-called other considerations under paragraph 9: see paragraph 7(2).

50.  But there are special circumstances in this case arising from the country of removal being Somalia.  The situation in Somalia is very unusual indeed.  It is true that it is not a unique situation, but nevertheless Somalia counts as one of the most economically blighted countries in the world, and I have already referred to the DFAT Report in this regard.  It is no small thing to return an applicant who has no present connection with that country  other than his birth and consequential citizenship to the severe dysfunction and economic dislocation of its society. In all the circumstances of this case, I do not believe that outcome is appropriate even when due allowance is made for the factors I have identified, and I expressly include here the need for protection of the Australian community from further offending.

51.  When I come to consider the second scenario, I am faced of course with a very different issue. That issue is “indefinite” detention rather than impediments on removal. Here, I believe I should take guidance from the plurality’s decision in WKMZ.  As the plurality in WKMZ pointed out (at [123]):

“The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision-maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law.”

52.  I accept that guidance and I have applied it in my deliberations. I should not ignore the continued deprivation of the applicant’s liberty that any decision I make to affirm the decision under review would entail. I accept that the plurality’s dicta do not require me to set aside a decision under review where indefinite detention would follow from a decision to affirm.   But the plurality was clear that liberty is one of the most fundamental freedoms known to the common law, and it is important in my opinion to accord the applicant’s interest in his own liberty significant weight.  I do not say that the Minister would detain the applicant on a quasi-permanent basis as this would be to impute to the Minister a wholly unreasonable intention.  But it remains the case that I cannot be sure that the applicant, in this scenario, would be released into the community within a reasonable timeframe if a third-country option were not secured relatively quickly.  I regard the prospect of indefinite detention as a very serious one, and it is one which I have weighed very carefully given the very serious consequences for the applicant.

53.  I have not found this case easy. The Direction does place significant emphasis on the defence of the Australian community from harmful and antisocial behaviour, and the primary considerations count against the applicant. Nevertheless, the individual circumstances of a case must be considered, and weighed very carefully. The weighing of the considerations is not a mechanical process but must take account of individual circumstances.  On either scenario I have identified as likely, I believe the correct or preferable decision on balance favours revocation of the cancellation decision. Ass I have said, the impediments in Somalia are extreme and the interference with the applicant’s liberty implied by indefinite detention is a most serious matter indeed. 

FINAL DECISION

54. Returning now to the language of the Act, from this conclusion, it follows that there is, in my opinion, “another reason” for the cancellation decision to be revoked under section 501CA(4)(b)(ii) of the Act. Accordingly, I shall set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked.

[sgnd]…………………………

Associate

Dated: 1 February 2023

Date of hearing:	7, 8 & 15 December 2022
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	C West Sparke Helmore

[1] These reasons include certain standard paragraphs, in particular [5] and [15].

[2] Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

[3] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [98] and [141].

[4] See above at [10].

[5] “Australian Department of Foreign Affairs and Trade Country Information Report: Somalia”, 13/06/17: Exhibit R3, pp 662ff.