PVFV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2651

PVFV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2651 (10 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4313
Re:PVFV
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

REASONS FOR DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:10 August 2022
Place:Perth

On 8 August 2022, I made the following decision and recommendation:
The Reviewable Decision dated 24 May 2022 is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (Migration Act).
It is the Tribunal’s view that s 501F(3) of the Migration Act does not apply. Consequently, the Applicant should be released from immigration detention as soon as possible so as not to be unlawfully detained.
Written reasons for this decision will be provided on or before Friday 12 August 2022.

These are my written reasons.
..........................[Sgd].......................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – Applicant is a 30-year-old woman with schizophrenia – Applicant is the subject of a guardianship and administration order made by the State Administrative Tribunal of Western Australia – Applicant came to Australia in 2004 at the age of 12 as a dependent under a partner visa and later a spouse visa
Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – best interests of Applicant’s minor son, nephews and nieces – expectations of the Australian community – Australia’s international non-refoulement obligations – Applicant born in refugee camp in Kenya to Somali citizen parents – Country of reference is Somalia – Applicant owed protection obligations – links to the Australian community – strength, nature and duration of ties to Australia
Tribunal found that there is another reason to revoke the Cancellation Decision – Reviewable Decision set aside and substituted
Legal consequences of the Tribunal’s decision – prospect of indefinite detention – whether s 501F(3) of the Migration Act 1953 (Cth) applies so that regardless of the Tribunal’s decision the Applicant would be indefinitely detained – s 501F(3) found not to apply – recommendation Applicant should be released from immigration detention as soon as possible so as not to be unlawfully detained
LEGISLATION
Migration Act 1958 (Cth) ss 48A, 48B, 195A, 197AB, 197C, 198, 499, 499(1), 499(2A), 500(6B), 500(6L), 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501F(1), 501F(2), 501F(3), 501G(1)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Young Offenders Act 1994 (WA) s 85
CASES
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 442
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 7(2), 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(b)(ii), 8.1.1(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(2), 9.1(3), 9.1(8), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
Law No. 28 of 22 December 1962 – Somali Citizenship, Republic of Somalia, Somali Law Council, 01 January 1963, CIS24495
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
10 August 2022
BACKGROUND

The Applicant is a 30-year-old woman who was born in a refugee camp in Kenya to parents who were Somali citizens.
Her father died when she was three years old, and her mother died when she was five years old. The Applicant’s older brother, AM, became her guardian.
The Applicant had a traumatic childhood. When she was seven years old, she was raped by a neighbour at the refugee camp (G25/154).
The Applicant, AM, her older sister and younger brother, were granted humanitarian visas and relocated to the United States of America (USA) when she was approximately 10 years old (R2/62).
On 10 September 2004, the Applicant was granted a subclass UF-309 partner visa as a dependent, and on 27 October 2004, when she was 12 years old, she arrived in Australia from the USA (R2/62).
The Applicant’s brother, AM, married HO, an Australian citizen. On 17 May 2005, the Applicant was granted a subclass BC100 Migrant-Spouse visa (Visa) as a dependent and became a permanent resident of Australia (R2/63). The Applicant regards HO as her mother and calls her “Mum”.
The Applicant developed mental health issues and started using drugs when she was approximately 12 years of age.
When she was 15 years of age the Applicant moved in with a man who was much older.
At around this time the Applicant began committing offences, resulting in an extensive juvenile criminal history (R2/289-292). These offences were committed under the influence of drugs or to finance the Applicant’s drug use. Her juvenile offences were committed between December 2007 to September 2009.
The Applicant gave birth to a son, A, in April 2010 when she was 17 years of age.
She then committed numerous offences as an adult between 5 August 2011 and October 2015, with a three-year break between August 2011 and August 2014.
On 27 February 2017, the Applicant was convicted of “aggravated armed robbery” for which she received a four-year sentence of imprisonment (R2/285). Consequently, on 28 March 2018 her Visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G11/70) (Cancellation Decision).
The Applicant submitted a request for revocation of the Cancellation Decision and a personal circumstances form on 13 September 2018 (G18/116-119; G20/123-134). However, the Minister refused to consider revocation because her representations were not made within the 28-day prescribed time frame (G13/83).
The Applicant signed a voluntary agreement to be deported to Somalia on 8 November 2018 (R2/32). However, medical reports from immigration detention state that she was observed by staff in immigration detention to be talking and laughing to herself constantly. These records further state that the Applicant was assessed by the Acting Chief Psychiatrist of Western Australia who found that she lacked the mental capacity to give consent for her deportation, to make important decisions about her future or to represent herself in administrative proceedings (G27/159).
Although these records state that she was deemed “not competent” and the removal process was stopped (G28/193), it was the Applicant who signed a withdrawal of request for removal from Australia form on 6 February 2020, which was received on 27 April 2020 (R2/32).
On 1 May 2019, the State Administrative Tribunal of Western Australia (SAT) made orders appointing the Applicant’s older sister, UA, and her niece, SA, as her joint administrators and guardians. The SAT found that the Applicant was (R2/30-31):
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)       in need of an administrator of her estate.
(c)       incapable of looking after their own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)       in need of a guardian.
(As original.)
After a periodic review, orders were made for the appointments to continue and for the administration and guardianship orders to be reviewed by 27 October 2022 (R2/191-192).
On 27 April 2020, the Applicant lodged an application for a protection visa (R2/1-48).
On 29 January 2021, a delegate of the Minister found that the Applicant was a person in respect of whom Australia owes protection obligations. The delegate recommended that the Applicant is a refugee, that she was not a danger to Australia’s security, or to the Australian community (R2/62-95).
However, on 22 March 2021, the Applicant was issued with a notice of intention which advised her that the Minister, or a delegate of the Minister, intended to consider whether there were grounds to refuse to grant her a protection visa on character grounds under s 501(1) of the Migration Act (R2/144).
The Applicant’s guardian, UA, responded to the notice by email on 19 April 2021 (R2/149-167).
On 20 April 2021, the Department of Home Affairs (Department) wrote to the Applicant and UA (as her representative) to advise that her 19 April 2021 response had been received (R2/168). The letter enclosed a copy of the new Ministerial Direction, Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) and invited submissions.
On 14 May 2021, the Applicant, through UA, emailed further information to the Department (R2/171-175).
On 19 July 2021, the Department wrote to the Applicant and UA again to request comment on client incident reports which concerned the Applicant’s behaviour in immigration detention (R2/176-188). The Applicant and UA submitted responses to the Department (R2/189-190).
On 13 December 2021, the Applicant was re-issued with an invitation to make representations to seek revocation of the Cancellation Decision due to Federal Court decisions which identified that the previous notice did not comply with the requirements of the Migration Act (G12/76). The Applicant made a request for revocation of the Cancellation Decision on 21 December 2021 (G19/120-122; G21/135-150).
On 24 May 2022, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (G3/11). It is this decision that is the subject of the current application and is the Reviewable Decision currently before me.
The Applicant was notified of the Reviewable Decision on 25 May 2022, when it was delivered by email (G3/10; G2/7).
On 30 May 2022, the Applicant lodged an application in the General Division of this Tribunal seeking a review of the Reviewable Decision (G2). Therefore, the Applicant lodged her application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the

84-day period started running from 25 May 2022, meaning that I must hand down a decision on or before 17 August 2022.
On 14 June 2022, the Applicant’s protection visa application was refused under s 501(1) of the Migration Act because the delegate was not satisfied that she passed the character test (R2/127-143). To date, she has not sought review of the protection visa refusal decision.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
I heard this application in the Perth Registry of the Tribunal on 28 and 29 July 2022. Transcript references will be referred to as transcript 1 and 2, reflecting the first and second day of hearing. I was present in the hearing room with the Applicant and UA, who is the Applicant’s sister and one of her legal guardians. UA sat with the Applicant and assisted her during the hearing.
The Applicant was represented by Ms A Battisson of Human Rights for All Pty Ltd. I sincerely thank Ms Battisson for appearing pro-bono in this application. The Respondent was represented by Ms E Tattersall of Sparke Helmore Lawyers. Both Ms Battisson and Ms Tattersall appeared by Microsoft Teams due to being located interstate.
The Applicant gave evidence and was cross-examined. I commend Ms Battisson and Ms Tattersall for their sensitive and professional approach to examining the Applicant, given her history of trauma and her mental disability.
My impression of the Applicant was that she was honest and credible. She often could not remember the events of her offending and appeared confused about timeframes, but later corrected herself and made admissions as she remembered. She also made many spontaneous admissions that would otherwise be detrimental to her, such as admitting that she lied to the prison doctor to get methadone because she was a drug addict.
The Applicant also called the following witnesses who gave evidence at the hearing and were cross-examined:
(a)SA, the Applicant’s niece who is her other legal guardian;
(b)HO, whom the Applicant regards as her mother, who was assisted by a Somali interpreter;
(c)MB, a friend of the Applicant and her family; and
(d)JL, a pastor from the Applicant’s Church.
The Applicant left the hearing during the closing submissions. She had been complaining of pain due to cracked ribs and was taken to hospital in an ambulance.
I admitted the following documents into evidence at the hearing:
(a)Unsigned letter from HO dated 25 July 2022 (Exhibit A1);
(b)Unsigned letter from JL dated 24 July 2022 (Exhibit A2);
(c)Unsigned letter from UA and SA dated 25 July 2022 (Exhibit A3);
(d)Unsigned letter from MB dated 25 July 2022 (Exhibit A4);
(e)Undated and unsigned letter from SA (Exhibit A5);
(f)Unsigned letter from UA dated 25 July 2022 (Exhibit A6);
(g)Document scanned with CamScanner which starts with “The person was someone...” (Exhibit A7);
(h)Email communications from UA, copied to Ms Battisson, and a counsellor educator at Cyrenian House dated 21 and 22 July 2022 (Exhibit A8);
(i)Journal article titled “Mental health crisis in Somalia: a review and a way forward”, International Journal of Mental Health Systems, published online in 2022 (Exhibit A9);
(j)Photographs of the Applicant’s family (nine in total, with last three photographs including A) (Exhibit A10);
(k)Australian Government, Department of Immigration and Border Protection, Minister’s detention intervention power and residence determination power (Exhibit A11);
(l)Section 501 G-Documents, labelled G1 to G43, consisting of pages 1 to 319 (Exhibit R1);
(m)Tender Bundle, labelled T1 to T48, comprising pages 1 to 751 (Exhibit R2); and
(n)Supplementary Tender Bundle, labelled ST1, comprising pages 1 to19 (Exhibit R3).
The following written submissions were filed by the parties prior to the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions dated 25 July 2022 (SFIC); and
(b)Respondent’s Amended SFIC dated 26 July 2022.
THE COUNTRY OF REFERENCE
At the hearing I asked Ms Battisson and Ms Tattersall about the country of reference. This is because the Applicant was born in a refugee camp in Kenya to Somali parents but faces removal to Somalia.
Both submitted that the country of reference was Somalia. Ms Battisson directed me to the protection visa assessment where a delegate considered this in detail.
In summary, the delegate referred to Law No. 28 of 22 December 1962 – Somali Citizenship (Somali Citizenship Law) which applied at the time of the Applicant’s birth. Article 2 of the Somali Citizenship Law provides that citizenship is transferred through the paternal line. The delegate also noted that the Applicant had provided documentation confirming that she was born in Kenya to Somali citizens and that she was recognised as a citizen of Somalia in a Temporary Travel Document to Somalia issued by the Federal Republic of Somalia Embassy in Victoria, Australia (R2/66-68).
I therefore agree that the Applicant is a citizen of Somalia which is the country of reference.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90

Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90 under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with paragraph 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must consider the primary considerations listed in paragraph 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
Specifically, paragraph 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act. That section provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
The Applicant concedes that she does not pass the character test (Applicant’s SFIC, para [5]). On 27 February 2017, she was convicted of “aggravated armed robbery” for which she received a four-year sentence of imprisonment (R2/285). The Applicant has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, does not pass the character test by operation of s 501(7)(c) of the Migration Act. As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
In Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 442 at [29], Senior Member Nikolic explained the meaning of “another reason” with reference to the Full Federal Court’s decision in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 (Viane), [64] per Colvin J:
It is common ground the Applicant fails the character test. As such, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the reviewable decision. The issue to be determined is whether there is ‘another reason’ for revocation. This task was considered by the Full Court of the Australian Federal Court (FCAFC) in Viane:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
That is, there must be “a reason that carries sufficient weight or significance” (Viane) for me to be satisfied that the Cancellation Decision should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 90 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Before evaluating the nature and seriousness of the Applicant’s offending (para 8.1.1(1) of Direction No 90) I will briefly outline her offending history. The Applicant has an extensive juvenile history, as well as an extensive adult history.
Juvenile conduct
I have treated the Applicant’s juvenile history as conduct, and therefore have given it significantly less weight than her adult offending.
The Applicant’s juvenile offences include trespass, stealing, possessing stolen property, criminal damage, giving false details to police, aggravated burglary, aggravated armed robbery, assault with intent to prevent arrest, breaches of bail, bail undertakings and six breaches of intensive youth supervision orders (R2/289-292). The Respondent described the Applicant’s juvenile offending (RSFIC at [4]), as “relating to offences while under the influence of illicit drugs or to finance her drug use”. In my view, this is a fair assessment, based on the nature of the offences and the evidence regarding the Applicant’s drug use.
The Applicant appeared in the Children’s Court on eight occasions between February 2008 and October 2009. These court appearances were for approximately 31 offences committed over an approximate 18-month period between 10 December 2007 and 28 September 2009 when the Applicant was approximately 15 to 17 years of age. There was an additional court date on 23 March 2010 whereby the juvenile justice team had returned two stealing charges from 11 August 2009 to the Court. However, the Applicant appears to have completed the community work imposed on 11 August 2009, and/or the three-month youth community-based order had expired because the Court dismissed a re-hearing on 23 March 2010 under s 85 of the Young Offenders Act 1994 (WA).
The Applicant received a range of court-imposed penalties including less punitive punishments such as no punishment due to time spent in custody, intensive youth supervision orders, and community work. However, the Applicant was also sentenced to periods in detention. On 9 February 2009, the Perth Children’s Court sentenced her to six months in detention from 2 January 2009 for “burglary and commit offence in dwelling” and six months concurrent detention each for two counts of breaching an intensive youth supervision order made on 20 February 2008.
On 20 October 2009 the Applicant was sentenced to five months concurrent detention for “assault with intent to prevent arrest of a person” and four months concurrent detention for “aggravated burglary and commit offence in dwelling” committed on 28 September 2009 (R2/289). The Applicant and two co-offenders were committing a burglary when the complainant and an associate returned home. The Applicant’s co-offenders fled, but the Applicant was caught by the complainant and his associate. The Applicant picked up a kitchen knife in an attempt to get away. There was a struggle with the complainant who was trying to remove the knife from her hand. She was detained until police attended the home and arrested her (R2/328).
Adult offending history
The Applicant’s first adult offences were committed on 5 and 6 August 2011. First, an offence of “stealing” was committed on 5 August 2011. Then, on 6 August 2011, the Applicant committed the offences of “aggravated armed robbery” and “aggravated burglary and commit offence in dwelling”. These offences involved the Applicant and two other co-offenders breaking into the victim’s home between 2am and 3am by opening an exterior window above the kitchen sink. The first co-accused entered through the window and obtained a knife from the kitchen. The victim awoke and was threatened with the knife by one of the Applicant’s co-offenders. The co-offender also demanded that the victim give them his ATM card and PIN number after he showed that his wallet was empty. The Applicant stole items including two mobile phones, a digital camera and jewellery from the victim’s bedroom while one of her co-offenders brandished a knife. Electrical, alcohol and other goods were also stolen (R3/3-4). The sentencing Judge stated that on leaving, the Applicant warned the victim: “Stay where you are. The stuff we’ve stolen isn’t worth dying for. If you work hard you will get it back” (G5/40).
The sentencing Judge noted the seriousness of the offending (G5/40):
This was a burglary with a high probability that someone would be home. When the householder awakened he was threatened with a knife and robbed. In short, this is very serious criminal conduct.
And further, the sentencing Judge observed that the Applicant’s “downfall has been the use of drugs” (G5/41).
Between August 2014 and July 2015, the Applicant committed a number of offences that were dealt with by way of fines. These included: “stealing”, “attempted stealing”, “give false personal details to police”, “damaging property”, “trespass”, “disorderly behaviour in a police station or lockup”, and numerous breaches of community-based orders, bail and bail undertakings.
On 27 February 2017, the Applicant was convicted of “aggravated armed robbery” and “stealing” after a trial by jury in the Supreme Court of Western Australia. The Applicant unsuccessfully appealed her convictions to the Court of Appeal (G7/51-62). The offences were both committed on 8 October 2015 and involved two separate events and two separate victims. The sentencing Judge described the facts of the “stealing” offence as follows (G6/44):
The facts that I find are that at 10 am on Thursday, 8 October 2015 at a taxi rank at [suburb redacted] you asked a taxi driver to take you to the airport. The taxi driver asked you pay some money up front for the fare. You replied by telling the driver to keep driving and that you would give him some money. The taxi driver continued driving.
The driver then asked again to be shown the money. You replied that you just wanted to be taken to the airport. You became aggressive. The driver again asked you to show him the money or he was not going anywhere. In reply, you said, “You better take me there or you’re going to get a smack in the mouth.” Understandably, the driver stopped the taxi and asked you to get out of his car. He also said if you didn’t get out of the car he would call the police.
You did comply and left the taxi, but as you did you picked up the driver’s mobile phone from the centre console next to the driver’s seat. You jumped from the car and ran from the vehicle, heading across the lawn to [landmark redacted]. At the time of leaving the taxi you left your own mobile phone behind on the passenger seat of the taxi, along with your jacket. I find that the offending was opportunistic. It was not planned or premeditated, rather you took the opportunity to take the phone, and you did so.

The sentencing Judge described the facts of the “aggravated armed robbery” offence, which occurred shortly after the Applicant left the taxi, as follows (G6/44-45):
… after leaving the taxi you commenced walking for about 30 minutes. At about 10:30 am, as you walked towards a car park at [landmark redacted], you came across a woman who was to become your victim.
The victim said that she saw you in her peripheral vision walking towards you – as she was walking towards you. At that time you stood in front of the woman and said that you were lost and asked her for help. The victim said that she did not really know [suburb redacted] that well. At that point you took hold of the victim’s gold chain necklace and ripped it from her neck.
At the time of ripping the gold chain necklace you told the victim that you were having a really bad day. You then said to the victim that you had a syringe in your pocket and that it was full of hep C and the victim needed to do what she was instructed to do by you. When you said those words you had your hand in your pocket.
I find that the purpose of having your hand in your pocket was to convey to your victim that you had possession of the syringe, secreted in your pocket, which you referred to. I also find that you did not have a syringe but you pretended to do so. You then told the victim to hand over her bag or otherwise you would kill her. The victim complied.
You then searched through the bag, taking the victim’s purse containing $120 in cash, cards including her Medicare card, and photos of her children. You also took the gold chain necklace. The victim described that necklace as being 24 carat gold. You then walked off towards [suburb redacted]. In the days that followed you were apprehended by the police ...
On 1 March 2017, the Applicant pled guilty to four offences, being two counts of “being armed or pretending to be armed in a way that may cause fear” for which she was sentenced to a two-month cumulative, and a two-month concurrent term of imprisonment. She was also convicted of “common assault in circumstances of aggravation or racial aggravation” for which she was sentenced to two months cumulative imprisonment, and “give false personal details to police” for which she received a $300 fine. Although the Applicant was not sentenced until March 2017, the offences were committed on 9 October 2015 (R2/285).
The sentencing Magistrate’s description of these offences was brief. However, according to the Statements of Material Facts prepared by the Western Australia Police the “being armed in a way that may cause fear” offence involved the Applicant approaching the two victims who were walking their dog. She asked the two victims if they were laughing at her, before producing a folding knife with an 8cm blade and threatening to kill them and their dog before running off (R2/356).
The victims of the second 9 October 2015 “being armed in a way that may cause fear” offence, and the “common assault in circumstances of aggravation or racial aggravation” offence were a couple who were leaving the shopping centre with their infant child. The Applicant spat on the woman before racially abusing the couple. When one of the victims asked the Applicant what she was doing, she approached the victims with the folding knife, causing the victims to back away (R2/357-358). When police arrested the Applicant in the shopping centre car park, she provided them with false personal details, resulting in the “give false personal details to police” offence (R2/358-359).
The sentencing Magistrate determined that “separate and distinct punishment ought to be imposed to reflect the seriousness of these offences” with terms of imprisonment being appropriate (R2/57-58). The sentencing Magistrate also stated (R2/57):
In my view, the nature of these offences are serious, particularly … – going armed and the assault involving the spitting. I don’t need to repeat the facts that have effectively been accepted. It might be said by [the Applicant’s lawyer] it’s a small knife, but he also acknowledged that this knife, which was 8 cm in length and serrated, would have presented as an alarming weapon in the face of these two complainants that were confronted when she committed the armed offence, and, of course, the spitting offence is clearly disgusting. It’s – people should not have to put up with that sort of behaviour.
Conduct in detention
The Applicant was in prison from 9 October 2015 (G8/63) and went into immigration detention on 10 September 2018 (G16/90).
There are numerous records from immigration detention recording aggressive and violent behaviour from the Applicant, particularly when she first went to immigration detention.
I will now provide an overview of these incidents from these records:
(a)7 March 2019: The Applicant attempted to escape from Bentley Hospital while smoking in a yard by jumping over a fence. She was caught after running approximately 100 metres (G16/112).
(b)29 March 2019: The Applicant was reported as being aggressive and abusive and as damaging hospital equipment. This record indicates that the Applicant was accommodated at the Mental Health Ward of Bentley Hospital and that by 9 April 2019 she was still accommodated there for mental health treatment (G16/111; R2/187-188).
(c)4 May 2019 to 5 May 2019: The records indicate that the Applicant was in high care accommodation in immigration detention under constant supervision because she continued to experience mental health issues. These notes record numerous assaults on officers and health staff and the Applicant having to be forcibly restrained. They record numerous incidents of threatened and actual self-harm (for example, threatening to cut herself with a shard of broken cup, tying a rip cord around her neck and hitting her head against a door). It appears that the Applicant was repeatedly asking to be taken to hospital (including on 3 and 4 May 2019 – see also G28/181-182), but those requests were denied. She also asked to be taken to jail and to be kept away from another detainee because she was “possessed by the devil [who] wanted her to kill” and harm others. She also displayed concerning behaviours such as taking off her clothes and putting them under the shower then demanding to be taken outside for a cigarette without clothes on (G16/103-110; R2/185-186).
(d)6 May 2019: The Applicant was reported as becoming “physically aggressive towards staff who were attending a self-harm incident” (G16/100). It appears that it was the Applicant who attempted to harm herself because the records state that she physically assaulted an officer whilst being escorted to a “high care dorm” (G16/101-102).
(e)7 May 2019: The Applicant was reported as assaulting an officer by punching him in the back of the head (G16/97 and 99). However, minutes afterwards the Applicant had to be restrained because she had been seen wrapping a bedsheet around her neck. She became aggressive and abusive and kicked out whilst being restrained (G16/98).
(f)14 December 2019: The records describe the Applicant being involved in a physical altercation with another detainee (G16/96; R2/184).
(g)15 December 2019: Another detainee threw cordial over the Applicant and another detainee when they complained about a mess she left in the Applicant’s room. The record states that the Applicant attempted to punch an unknown person (the name is redacted). A record from 16 December 2019 states that one of the detainees involved was “totally ok”, another said she had no ill will, and the Applicant said everything was finished and there would be no further incidents (R2/184).
(h)21 June 2020: The Applicant was taken to hospital due to self-harming and became agitated when officers would not allow her a cigarette break. She started swearing and abusing staff in a public area, kicking doors and medical equipment (G16/95).
(i)17 September 2020: The Applicant wanted medication for heartburn and became abusive and aggressive towards the nurse when hearing she could not have any more medication, banging on a barrier screen (G16/94).
(j)24 September 2020: The record describes abusive behaviour towards a nurse during the evening medication round. When asked to cease her behaviour the Applicant apologised (G16/93).
(k)23 December 2020: CCTV showed that another detainee had placed a tobacco pouch on a table and the Applicant had secured it under the table. When the package was opened there appeared to be green matter at the bottom that was not tobacco (R2/183). The green substance produced a negative result, with the Applicant explaining the green substance was herbs and that they “were playing tricks on the boys” (R2/181-182).
(l)2 July 2021: Another detainee alleged that the Applicant threatened to knock down or punch her. This seems to be a dispute about the detainee not completing a drawing of the Applicant’s son. The note records that the Applicant was apologetic, said she did not intend for her behaviour to be threatening, was willing to apologise, undertake mediation or stay away from the other detainee (R2/181).
(m)6 July 2021: It was recorded that the Applicant had a verbal disagreement with another detainee over a wireless speaker (R2/180). She apologised on 7 July 2021 (R2/179).
(n)27 April 2022: The record of this event states that the Applicant was taken to a medical appointment outside of the immigration detention centre. A male and female member of the public were there who said they knew her. The male went to shake the Applicant’s hand to allegedly try to pass her a red and white tablet which fell to the floor. The record states that the Applicant picked up the tablet and tried to conceal it, but after questioning from officers she handed it over. The Applicant then went to the water dispenser and one of the officers noticed another tablet on the top of the water cooler and retrieved it. The tablet was later identified by IHMS as a Lyrica tablet (G16/91).
A review of the Applicant’s IHMS medical records indicate that many of the incidents above occurred during periods when the Applicant was experiencing serious mental health issues. The medical records give context to what was occurring with the Applicant’s mental health when the incidents in immigration detention occurred.
The Applicant was diagnosed with schizophrenia on 8 March 2019 (R2/37). Her evidence was that in 2019 she was going in and out of hospital due to her schizophrenia. At the hearing, she accepted that she hit some officers in immigration detention, but she stated the violent episodes occurred when she was experiencing “schizophrenic episode[s]” (transcript1/61). She stated that, “I’m no longer violent because I’m medicated with the right medication” (R2/189). This accords with the medical records with a psychiatrist noting on 16 March 2020 that the Applicant poses a “significant risk of violence to others when unwell” (G29/257). When she tried to escape from the hospital in March 2019, “the voices were too much, and they were telling me to escape” (R2/189).
I accept the Applicant’s evidence and I am reasonably satisfied that the incidents between 7 March 2019 and September 2020 were substantially due to the Applicant’s schizophrenia. There are numerous self-harm incidents, auditory hallucinations, hospitalisations, and the Applicant being in high care during this period.
Although the Applicant was properly diagnosed with schizophrenia in March 2019, the medical records show that she experienced some acute periods of distress when medications were adjusted to manage the symptoms of her schizophrenia, and when she was hospitalised to receive mental health treatment. There was a period of trying and adjusting medications until approximately late 2020 before the Applicant’s mental health was stabilised, and it appears there may have been a period where the Applicant was not taking medication.
For example, a record made by an IHMS psychiatrist dated 16 March 2020 records that staff were concerned about the Applicant who had been talking to herself loudly and “increasingly mentioning the Devil”. He noted “recent changes in behaviour at interview suggest a relapse of schizophrenia” and that the Applicant had not been taking her medication (G29/257).
Leading up to the incident on 21 June 2020, on 3 June 2020, the Applicant saw the mental health nurse and asked to be taken to hospital due to experiencing auditory and visual hallucinations and became angry when she was not sent to hospital (G29/248). Around this time the Applicant was feeling stressed about her protection visa (G29/249). On 10 June 2020, a psychiatrist recorded a decline in the Applicant’s mental state where she reported feeling worse and hearing voices for the last two weeks and that she had a devil in her (G29/245). Another record shows that on 21 June 2020 to 25 June 2020, she was admitted to Bentley Hospital after a self-harm incident with the Applicant reporting to a psychiatrist on 8 July 2020 that she was still hearing voices that “tell her to do things that would get her into trouble”. The record also reports that her medications were being changed (G29/240).
Leading up to the two incidents in September 2020, a medical record made by the IHMS mental health nurse dated 8 September 2020 records that the Applicant “presented as distressed” and that voices were telling her to kill herself (G29/237). A further record by the mental health nurse dated 12 September 2020 states that the “change in medication is working well” but that the Applicant was still hearing voices (G29/236).
A subsequent record from an IHMS psychiatrist dated 16 September 2020 (the day before one of the incidents) (G29/235) shows that the psychiatrist adjusted the Applicant’s medication. It refers to the Applicant having recently presented to the “emergency department for distress and auditory hallucinations”. On 23 September 2020, the mental health nurse recorded that the Applicant was still hearing voices that were “persecutory and derogatory in nature … but [was] able to manage it” (G29/233).
On 27 September 2020, a record from the IHMS mental health nurse states that the Applicant was having a good day, still hears voices but they were not distressing, and that the Applicant expressed concerns that her medication may not be working. The record also states that the Applicant “is aware of how to ask for help” (G29/231). The Applicant’s auditory hallucinations assist to explain the incidents in September 2020, which I note were not violent and involved verbal abuse and banging on a barrier screen.
Additionally, from this time, the Applicant is recorded as apologising for her behaviour on three out of four incidents. With respect to the threat against the other detainee, the Applicant explained that she had no intention to hurt the detainee, that she regretted making the threat and apologised, and that they are now friends. The Applicant explained that around that time, two other detainees she was close to had left immigration detention which had affected her (R2/189).
With respect to the Lyrica incident, the Applicant explained that she knew the woman from prison, and it was the woman’s boyfriend who tried to give her the tablet (transcript1/70; A7). She said that one tablet fell on the floor and the other was in her hand and she gave them to the officer when asked. Her evidence was that she did not want to get the man in trouble which was why she initially concealed the tablet. She stated that she went to get a drink from the water dispenser and the officer saw the tablet on top of it and confiscated it straight away. The Applicant said she did not know the tablet would be there and that she did not want or try to consume the tablet. Her evidence was that she understood that she was not in trouble and was told no reports would be written (transcript1/70; 71).
On the one hand, it does seem coincidental that after a failed attempt to hand the Applicant a tablet, another was left on the water dispenser that she happened to go to. However, the Applicant’s version of events is mostly consistent with the record, except for the officer’s observation that the Applicant concealed the first tablet. I accept her evidence that she did not want the tablet, hid it so as not to get anyone into trouble, and handed it over as soon as she was asked, and that she did not intend to take the tablet. Her evidence about the tablet on top of the water dispenser is consistent with the record in that she did not try to pick up the tablet and that it was noticed and immediately confiscated by the officer. I also accept her evidence that she was told, or at least believed that she was not in trouble, which is consistent with her guardian UA’s concern that she was not informed about the incident (A6). I therefore do not draw any adverse inference from this incident.
Except for the Lyrica incident, there have been no adverse incidents involving the Applicant for the last year. This is a significant improvement in the Applicant’s behaviour. I find that the Applicant’s violent behaviour was a direct result of her schizophrenia and most often occurred in the context of what the Applicant referred to as a schizophrenic episode. As her schizophrenia was diagnosed, treated and managed, the Applicant’s behaviour gradually improved to the point where (except for the Lyrica incident) no incidents have been recorded for over a year.
Assessing the nature and seriousness of the conduct
Direction No 90 provides that certain crimes or conduct should be regarded as being “very serious”. These include “violent crimes” (para 8.1.1(1)(a)(i)) and/or “crimes of a violent nature against women” (para 8.1.1(1)(a)(ii)).
The Applicant acknowledges that some of her offences fall within these categories (Applicant’s SFIC, [17]). The Applicant’s most recent convictions for “common assault in circumstances of aggravation or racial aggravation” and two convictions for “being armed or pretending to be armed in a way that may cause fear” which involved the Applicant being armed with a knife and a spitting offence, would fall within this serious category. The Applicant’s “aggravated armed robbery” offence committed on 8 October 2015 would also fall within this serious category. It was an offence against a woman where the Applicant pretended to be armed with a syringe. Given the nature of the threat which the female victim perceived as real, this offence would have been traumatic for the victim. Additionally, although there was no actual violence, there was an element of contact when the Applicant tore off the woman’s necklace.
Although not involving direct violence, I regard the Applicant’s 6 August 2011 offences of “aggravated armed robbery” and “aggravated burglary and commit offence in dwelling” offences to be serious. These offences were committed at night when the victim was sleeping, in the company of two co-offenders and a weapon was used to threaten the victim. The threatened violence and these aggravating factors elevate the seriousness of the offending in my view.
Further, paragraph 8.1.1(1)(b)(ii) of Direction No 90 provides that crimes against vulnerable members of the community such as the elderly or disabled are “serious”. When sentencing the Applicant for the assault against the taxi-driver, the sentencing Judge described taxi drivers as “particularly vulnerable to acts of stealing” (G6/48). I do not think the use of “vulnerable” in this context is what was contemplated in this paragraph of Direction No 90, and I find that it instead refers to the opportunistic nature of the offending. I would instead regard this offence to be of moderate seriousness, given that threats were also made against the taxi driver, but there was no weapon or violence.
In summary, although there was no actual violence, threatening people with weapons (real or perceived) in the context of robbery or burglary is serious. This is reflected in the sentencing remarks which, for example, refer to the seriousness of the 8 October 2015 offences. Breaking into homes during the night when occupants are asleep is also, in my view, serious. People are entitled to feel safe in their homes without being confronted and threatened by armed intruders.

The Applicant’s serious offending is also interspersed with some less serious offences such as stealing, property offences, trespass, giving false details to police, and breaches of community-based orders.
Paragraph 8.1.1(1)(b)(iv) of Direction No 90 provides that a crime committed by the non-citizen in immigration detention is another type of conduct that is to be regarded as “serious”. Although I have outlined various incidents involving the Applicant in immigration detention they do not, in my view, fall within the category of a “crime” committed in immigration detention.
Paragraph 8.1.1 of Direction No 90 is not limited to “offending” (that is, offences an applicant has been convicted of). It also refers to “other conduct”. The Applicant has a lengthy juvenile history, although as I noted above, the offences were committed over an approximate 18-month period when the Applicant was between the ages of 15 and 17. Again, there are some less serious offences in the Applicant’s juvenile history such as trespass, stealing, breaches of supervision orders, and giving false details to police. There are, however, more serious offences such as “aggravated burglary and commit offence in dwelling” and “assault with intent to prevent arrest of a person” (committed on 28 September 2009) and “burglary and commit offence in dwelling” for which the Applicant was sentenced to periods in detention. The detention of a child is a gravely serious matter and I find that the imposition of periods of detention reflects the seriousness of the Applicant’s conduct.
Additionally, as I noted above, I have not drawn any negative inferences from the Applicant’s conduct in immigration detention because the conduct involving violence was directly attributable to the Applicant’s mental health issues, as were most of the incidents involving aggression. The Applicant’s conduct has significantly improved.
Although the Applicant received sentences that were significantly less than the maximum penalties, often due to the mitigating factors of her age, childhood trauma and mental health, she has nevertheless received lengthy prison sentences (para 8.1.1(1)(c) of Direction No 90). For example, on 2 December 2011, when sentencing the Applicant to three years’ imprisonment, to be served concurrently for the “aggravated armed robbery” and “aggravated burglary and commit offence in dwelling”, the sentencing Judge observed that “but for your youth, your plea of guilty and your background, you would be facing a sentence considerably longer than the one I am about to impose” (G5/41).
When sentencing the Applicant, on 27 February 2017, to a total term of four years’ imprisonment for the offences concerning stealing from the taxi driver and robbing the woman whilst pretending to be armed with a syringe, the Judge commented that “aggravated armed robbery” is “a most serious offence” and that a “term of imprisonment is ordinarily the only appropriate sentence”. The sentencing Judge also concluded that despite mitigating factors, “[y]our offending in respect to the armed robbery is too serious for suspension” (G6/49-50).
At the time of these sentences, the Applicant was aged 19 years and 25 years of age. Imposing sentences of imprisonment are usually a last resort in the sentencing hierarchy (PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]), especially for a young person, and reflect the seriousness of the offending. Relevantly, when sentencing the Applicant on 2 December 2011, the sentencing Judge stated that, “[i]t is never an easy thing to send a young person to prison” (G5/41).
I do note, however, that as well as sentences of imprisonment, the Applicant has received community-based orders (for example, for trespass, stealing, breach of bail and attempted stealing, imposed on 22 October 2014) and numerous fines for breaching community-based orders, bail and bail undertakings, giving false details to police, and damaging property, which is indicative of the less serious nature of many of her offences.
I now turn to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). With respect to the Applicant’s offending as an adult, she had six Court appearances between 2 December 2011 and 1 March 2017 for 28 offences committed between 5 August 2011 and 9 October 2015. There was a break of approximately three years between her first adult offence of “stealing” (committed on 5 August 2011), and “aggravated burglary and commit offence in dwelling” and “aggravated armed robbery” (committed on 6 August 2011) and her next adult offence of “attempted stealing” committed on 14 August 2014, due to the Applicant being in prison. Most of her adult offences were committed over a relatively short period between 14 August 2014 and 9 October 2015, being approximately 14 months (R2/285-288). There are serious offences at the start and towards the end of her adult criminal history interspersed with less serious offences. Overall, the offending is frequent (noting multiple offences on the same days), but there is no trend of increasing seriousness.
I also consider that there is a cumulative effect of repeated offending given the number of offences committed, numerous court attendances and sentences of imprisonment, including breaches of court-imposed orders. This would have had the effect of burdening the resources of police, the courts and corrective services which are ultimately funded by the taxpayer (para 8.1.1(1)(e) of Direction No 90).
There is no evidence before me to suggest that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending, such as on incoming passenger cards (para 8.1.1(1)(f) of Direction No 90).
The Applicant has re-offended after being formally warned (para 8.1.1(1)(g) of Direction No 90). She was sent a letter dated 4 December 2012 (G10/66) which referred to her being notified on 29 June 2012 that her Visa may be liable for cancellation on character grounds. The letter advised that a delegate of the Minister had decided not to cancel her Visa on that occasion. The letter warned in bold type:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
However, despite this warning, when the Applicant was released from prison on approximately 9 August 2014, she re-offended with an attempted stealing offence on 14 August 2014. The Applicant said that she knew it was a possibility that her Visa could be cancelled again but had no food and clothes when she was released from prison (transcript1/58-59). She also explained that when she committed the “aggravated armed robbery” offence in October 2015, “it wasn’t in my mind to reoffend”, but she did so because she was hearing voices. She feared for her life and believed that she needed money to escape to Sydney where she believed she would be safe (transcript1/58). I discuss the relationship between the Applicant’s schizophrenia and her offending in more detail below, as well as a medical report prepared for the SAT which discusses difficulties with the Applicant’s decision-making abilities. However, the Applicant’s October 2015 offending coincides with her beginning to hear voices, and due to her schizophrenia, I find that she was likely not fully able to comprehend the implications of this warning, even though she was aware of it.
As I have explained above, the Applicant’s offending ranges from minor offending (for example, offences of a less serious nature dealt with by fines) through to more serious offending (as indicated by the nature of the offences, the sentences imposed despite her young age and the sentencing remarks) . Although I have categorised some of the offences as serious because, for example, the victims were threatened with weapons, the Applicant’s offending is less serious, for example, than actual violence inflicted on someone’s person. The number of her offences suggests frequency, however, most of her adult offending occurred over a period of approximately 14 months. Although there is no overall trend of increasing seriousness, the number of offences, breaches of court-imposed orders and sentences of imprisonment would have had a cumulative effect. She has also reoffended since being warned, although she is unlikely to have fully comprehended the implications of the warning.
After weighing these factors, I find that paragraph 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs moderately against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should she engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
The Applicant has convictions for “aggravated armed robbery”, “common assault in circumstances of aggravation or racial aggravation”, “aggravated burglary and commit offence in dwelling” and “being armed or pretending to be armed in a way that may cause fear”. Some of the Applicant’s offending involves victims being threatened with knives. It is not difficult to contemplate how this type of offending could progress to someone being injured or killed. In the case of the victim who was threatened with an alleged syringe, the experience is likely to have been frightening and traumatic. Indeed, the sentencing Judge described the impact on the victim of that armed robbery offence on 8 October 2015 as follows (G6/49):
The victim in the aggravated armed robbery counts provided a victim impact statement, the victim outlines the significant impact your offending has had on her. It has affected many aspects of her life and her family life. The armed robbery has left the victim fearful of venturing along the community and going about her lawful business, including work.
The Applicant has also broken into homes including when the occupant was home. This is a frightening experience for home occupants who are entitled to feel safe in their own homes. There are a range of harms that could result to members of the Australian community if the Applicant was to re-offend in a similar manner. These could include financial detriment, psychological harms, physical injury, or even loss of life.
The Applicant has also committed offences of a general nature involving property including “stealing”, “attempted stealing”, “trespass”, “possession of stolen or unlawfully obtained property” and “damaging property”. Broadly speaking, offences against property are less serious than offences against persons, but such offences can also result in psychological and financial harms to victims, as well as contributing to increased costs for businesses including insurance premiums which are ultimately passed on to consumers.
The Applicant has also committed offences which involve failing to cooperate with police namely, “disorderly behaviour in a police station or lockup” and “give false personal details to police”. She has numerous breaches of bail, bail undertakings and community-based orders. Whilst these offences are of a minor nature, they make it more difficult for police to perform their functions and consume the time and resources of police and the courts, which can detract from their service to the Australian community.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if she were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
The likelihood of the Applicant re-offending is somewhat difficult to assess. There is no recent psychological assessment of the Applicant’s risk now that her schizophrenia has been diagnosed and stabilised. Also, the Applicant has a complex background with a long history of mental health issues and illicit substance abuse. She was diagnosed with post-traumatic stress disorder at age 14 (G6/46) and was not diagnosed with schizophrenia until March 2019 (R2/37). She also has a long history of drug abuse since she was 12 years of age, and her childhood trauma and chronic mental health issues are likely to have contributed to her self-medicating through substance abuse.
When sentencing the Applicant on 27 February 2017 for the “aggravated armed robbery” and “stealing” offences committed on 8 October 2015, the sentencing Judge commented on the Applicant’s history of drug use, mental health and the factors which contributed to her offending (G6/46):
I also note the author of the psychological report records that you reported that you had been diagnosed with post-traumatic stress disorder at the age of 14 years. The psychologist noted that such a diagnosis would be commensurate with your history. A psychologist administers a clinical tool to assess you that result in the assessment that you are in the extreme serious clinical range for anxiety, the severe range for stress and the moderate range for depression. The psychologist assessed you to be suffering from significant anxiety.
The author of the psychological report concludes that your offending has been driven by a number of factors, including your traumatic childhood experience, substance abuse as a negative coping strategy, unresolved mental health challenges and an unstable and purposeless lifestyle. The conclusion of the psychologist is that there is a high likelihood of you offending in the future in a violent way unless you address your problems. However, your risk will reduce markedly if you become abstinent from substances, stabilise your life and address your past trauma.
The Applicant’s evidence was that she “started experiencing internal voices at the beginning of 2015”, and that (G21/150):
By June 2015, I was also having acute paranoid delusions of persecution (i.e Hearing voices outside my bedroom window and believing that a microchip had been implanted behind my left ear)
Noone in my family had ever experienced ANY mental health issues, culturally these are regularly dismissed or at least minimized by the Somalian population in general.
I told my immediate family that we were all in terrible danger from people unknown, however earnest I was they quite rightly dismissed my fears as utter nonsense, but never realised that there could be un underlying cause.
(As original.)
The Applicant continued to explain her motivation for the “aggravated armed robbery” offence where she pretended to be armed with a syringe (G21/150):
I pretended to be armed and robbed an unfortunate woman walking alone in [suburb redacted]. I apologised to her at the time, explaining that I needed funds to escape to Sydney to avoid grave personal danger.
In another undated letter the Applicant further explained (G26/158):
I am writing this letter to ask sincere apology for my crimes. I do realize that my crimes effected people and I take full responsibility for my crimes and drug use. I also have realized that I was wrong. Arm robbery is a serious crime. However the time I did this crime I was suffering from schizophrenia and hearing voicees. I thought that my life was in danger and had to leave Perth to get away. I committed that crime to get money to travel to Sydney where I thought I would be safe. I was not aware at the time I had schizophrenia and was not getting treatment. I did not understand what the voices were aat that time. Now I am seeing a psychiatrist. I’m now medicated and can control the voices.
I admit that I was wrong and accept the fact that im guilty. I also accept full responsibility. I can promise you that I will never do this again. I feel very ashamed and remorseful for my crimes. I can’t make any excuse for what I did. I’m also very sorry to my victims.
(As original.)
The Applicant was asked at the hearing about the offences on 9 October 2015, including the “being armed or pretending to be armed in a way that may cause fear” offence involving the couple walking their dog. The Applicant’s evidence was (transcript1/60):
MS TATTERSALL: So the day after you yelled at two people on the street?
APPLICANT: I thought they were after me. I thought they were taking pictures of me and after me, and I thought it was one of the people that was following me because they were Asian and I thought it was Asian people that were following me, so I ran and I reacted in a way where I had a schizophrenic episode.
A hospital Discharge Summary dated 18 January 2019 (R2/40) referred to the Applicant having a past psychiatric history of “psychosis whilst on drugs prior to imprisonment” and her presenting history as “history of psychosis while in prison 12 months ago while withdrawing from methadone and had been observed to having ongoing psychotic-like symptoms (e.g., responding to unseen stimuli, withdrawing to room)”. Relevantly, the report refers to the complex nature of the Applicant’s presentation, as recorded by a Clinical Neuropsychologist Registrar (R2/41-42):
[The Applicant’s] presentation is complicated by a multitude of factors including her cross-cultural background, history of substance abuse, her pre-existing ADHD [attention deficit hyperactivity disorder], her acute and chronic mental health problems, her complex trauma background, and a possible underlying neurodevelopmental disorder.
As such, her current presentation is likely reflective of a multiplicity of these issues. On the current assessment, [the Applicant] performed at a level equivalent to a person with an intellectual disability.
A medical report concerning the Applicant that was prepared for the SAT on 18 April 2019 stated that the Applicant had a mental disability, namely schizophrenia, which was diagnosed on 8 March 2019 (R2/37). It stated that she had presented to the mental hospital three times in the last three months and that:
Each presentation has been precipitated by reports of distressing auditory hallucinations and fears for her safety. Illicit substances tend to precipitate symptoms. Reports from family that mental state off for yrs

Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.4(2)(a)–(f), which includes the commission of serious crimes (of a violent or sexual nature) against women. The victim of the Applicant’s “aggravated armed robbery” offence committed on 8 October 2015 was a woman. I have also categorised that offence under the first primary consideration above as being serious. However, although there was threatened violence, there was no actual violence and limited contact. My view is that it does not quite meet the level of seriousness contemplated by para 8.4(2)(c) of Direction No 90. Similarly, the context in which the taxi driver was said to be vulnerable, does not meet the categories of vulnerable persons, such as the elderly, contemplated in para 8.4(2)(c) of Direction No 90, either. This is because the comment was more about taxi drivers being vulnerable to theft due to the nature of their work in picking up passengers, rather than being in a position of physical or social disadvantage.
Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. I found above that the Applicant is likely to pose a moderate risk of reoffending. However, even if I had found she was a minimal or low risk, the community’s expectations as stated apply regardless.
Further, paragraph 8.4(4) of Direction No 90 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. Thus, factors such as the Applicant’s traumatic upbringing and her significant mental issues are not relevant to this primary consideration. Those factors can be considered elsewhere to the extent they are relevant to other primary and other considerations in Direction No 90. Indeed, this sub-paragraph is clearly stating that decision-makers should not speculate about what the community’s expectations are in any particular case.
I am also guided by the principle in 5.2(4) of Direction No 90. The Applicant arrived in Australia on 27 October 2004 when she was 12 years old, and she is now 30 years of age. I therefore find that the Australian community would have a higher level of tolerance for the Applicant’s conduct because she has lived in the Australian community from a very young age.
Accordingly, I find that paragraph 8.4 of Direction No 90, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
Other considerations (para 9(1) of Direction No 90)
Paragraph 9(1) of Direction No 90 provides:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)
I am required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, material or evidence before me (para 9.1 of Direction No 90).
Paragraph 9.1(1) defines a “non-refoulement obligation” and the source of that obligation in international law:
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
Paragraph 9.1(2) provides that decision makers must carefully weigh any non-refoulement obligation against the seriousness of an applicant’s criminal offending or other serious conduct:
In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Paragraph 9.1(2) refers to ss 197C and 198 of the Migration Act. These provisions concern the removal of unlawful non-citizens from Australia. The effect of these provisions was recently clarified by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth). The effect of the amendments to s 197C of the Migration Act is that a non-citizen cannot be removed from Australia under s 198 of the Migration Act if they have been found to engage protection obligations through the protection visa process.
As I noted in the background section above, on 29 January 2021, a delegate of the Minister found that the Applicant was a person in respect of whom Australia owes protection obligations (R2/62-95). The delegate found that “the applicant would have a real chance of being seriously harmed on return to Somalia due to her female gender” (R2/78). The delegate found that the Applicant faced a real chance of persecution for one or more reasons and stated (R2/79):
Based on the Applicant’s individual circumstance, I am satisfied that the applicant’s absence from Somalia, and the strong likelihood of her becoming an IDP [internally displaced person], significantly elevates her risk of harm in Somalia. In addition, I consider her documented mental health issues, in conjunction with a lack of family or clan support, would cause her to be particularly vulnerable as a women [sic] in Somalia.
In light of the evidence before me, I am satisfied that the applicant has a well-founded fear of persecution for reasons of her membership of the PSG [particular social group] ‘women in Somalia’. It is evident that the applicant has a real chance of serious harm from both state and nonstate actors if she were to return to Mogadishu, Somalia.
I also note that in the decision refusing to grant the Applicant a protection visa on 14 June 2022, the delegate of the Minister accepted the 29 January 2021 finding that the Applicant was a person in respect of whom Australia has non-refoulement obligations (R2/127, para [74]).
As is explained in para 9.1(8) of Direction No 90, because the Applicant has been refused a protection visa, she will be prevented, by s 48A of the Migration Act from making another application for a protection visa whilst in the migration zone, unless the Minister determines under s 48B that s 48A does not apply. Further, if I was to affirm the Reviewable Decision, the Applicant would also be prevented from applying for any other class of visa without leaving the migration zone, except a Bridging R (Class WR) visa, which she could only apply for in response to an invitation.
If I affirm the Reviewable Decision, the Applicant cannot be refouled to Somalia because she is afforded the protection against removal offered by s 197C of the Migration Act. It would be a possibility, however, that the Minister could consider other options, including removal to a third country, or exercising personal discretion under s 195A of the Migration Act to grant another visa or to exercise personal discretion to make a residence determination under s 197AB of the Migration Act (see para 9.1(3) of Direction No 90).
However, with respect to the current application, Ms Tattersall confirmed the Respondent’s position as at the date of the hearing was that “no discretionary powers are being exercised or being considered for exercise … It’s not appropriate for those powers to be considered until the outcome of these proceedings is known” (transcript2/56).
Relevantly, Ms Battisson submitted that referral for Ministerial consideration under s 195A or s 197AB of the Migration Act requires that the Applicant meet certain guidelines for referral. Copies of relevant guidelines were filed by the Applicant and labelled Exhibit A11. However, Ms Tattersall submitted that the guidelines filed by the Applicant appeared to be outdated. She stated that it was unclear if these were the Guidelines that currently applied, and she was unable to access a copy of the relevant Guidelines in the current policy (transcript2/56). With this caveat in mind, I do note that, in the copy of the s 195A detention intervention power, that the relevant Guideline states that the Minister would generally not expect to have cases referred to the Minister for consideration involving people whose visa has been refused or cancelled under s 501 of the Migration Act. Thus, it is unclear whether Ministerial consideration is a possibility, and if so, how long it would take. In the interim, it is likely that the Applicant may face a period of prolonged or indefinite detention.
Further, I agree with the Full Federal Court’s comments in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [124] that a residence determination seems unlikely when an applicant’s visa has been cancelled in circumstances where they have been deemed a risk to the community:
… it is difficult to see how any delegate acting rationally and reasonably, or the Minister herself or himself acting rationally and reasonably, could decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful. To grant or restore a visa in such circumstances would be to return a person to free and lawful residence in the Australian community, an outcome which under a different provision has been determined to pose an “unacceptable” risk to that same community …
The Respondent submitted that even if I were to decide in the Applicant’s favour (that is, if I set aside the Reviewable Decision and substitute a decision that there is another reason to revoke the Cancellation Decision), the Applicant would still face indefinite detention due to the operation of a 501F of the Migration Act. It was further submitted that indefinite detention would therefore not be a consequence of any decision I made to affirm the Reviewable Decision. Rather, it would be a consequence of the operation of s 501F(3). I was therefore invited to give little weight to indefinite detention because it would not be a consequence of my decision.
The relevant subsections are s 501F(1) and (3) which provide:
(1) This section applies if the Minister makes a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.
…
(3) If:
(a) the person holds another visa; and
(b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to cancel that other visa.
In summary, the Respondent submitted that the refusal of the Applicant’s protection visa under s 501(1) of the Migration Act on 14 June 2022, had the effect of cancelling the Visa that is the subject of this application due to the operation of s 501F(3) of the Migration Act. I do not accept that submission. The Applicant’s Visa was the subject of a mandatory cancellation on 24 May 2022. As a result, her Visa had already been cancelled. In other words, she did not hold a Visa permitting her to lawfully remain in Australia. Consequently, as an unlawful non-citizen, she was taken into immigration detention upon her release from prison. I therefore find that at the time of the protection visa refusal decision on 14 June 2022, the Applicant did not hold another visa that could be taken to be cancelled by the operation of that provision. To be clear, I find that s 501F(3) did not cancel the Applicant’s Visa that is the subject of this application. This means that my decision with respect to this application is unaffected by s 501F(3) because it does not apply. It further means that indefinite detention is a potential consequence of my decision.
I have, as directed by paragraph 9.1(2) of Direction No 90, weighed Australia’s non-refoulement obligations against the seriousness of the Applicant’s offending. I evaluated the seriousness of the Applicant’s offending conduct in detail above under the “nature and seriousness of the conduct” part of the first primary consideration, which weighed moderately against revocation of the Cancellation Decision. However, balancing the existence of non-refoulement obligations concerning the Applicant, and the prospect of indefinite detention as the most likely consequence of a decision to affirm the Reviewable Decision, I find that this consideration weighs very strongly in favour of revocation of the Cancellation Decision.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
Paragraph 9.2(1) of Direction No 90 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 30 years of age. As I have mentioned above, she suffers from schizophrenia and is the subject of a guardianship and administration order imposed by the SAT. The SAT found that due to her mental disability, the Applicant was not able to manage her own affairs, was incapable of looking after her own health and safety, incapable of making reasonable judgments and needed a guardian. If she were removed to Somalia, she would not have her guardians to support her. I note that on the previous occasion when the Applicant had requested removal, SA visited Mogadishu to “receive” the Applicant when she was to be removed there (G35/269). If SA was able to provide this support in the future, it would likely be temporary because SA has her own business, work and family in Australia. It is also likely that the Applicant will have difficulty accessing daily medication and treatment for her mental health (A9).
In addition, she has limited knowledge of Somalia, which is a place she has never been to. The evidence is that the Applicant is not able to speak the local language (G35/270), or that she cannot speak it very well (G25/154). Although her guardian SA referred to her own “friends and some extended family” in Mogadishu in a written statement (G35/270), it is unclear who these extended family members are and whether they would be able to provide any assistance to the Applicant. I accept that the Applicant herself has no friends or close family members in Somalia, and almost no work experience or skills that could assist her to find work there.
However, as I have discussed above, the Applicant is a person to whom non-refoulement obligations are owed, and while these obligations continue, she cannot be removed to Somalia. I accept the findings of the Applicant’s protection visa assessment that the Applicant was a member of a particular social group, women in Somalia, who would face a high risk of official and societal discrimination and gender-based violence (R2/74). That is, she “would have a real chance of being seriously harmed on return to Somalia due to her female gender” (R2/78). The delegate also found that because the Applicant had no family in Somalia, there was also a real chance of her becoming an internally displaced person if removed to Mogadishu (R2/76).
Overall, I find that there are likely to be substantial and insurmountable impediments, both in the short and long term, that the Applicant would face establishing herself in Somalia and maintaining basic living standards. Given these impediments, together with the real chance of harm that the Applicant would face if returned, it would be appropriate to weigh this consideration in the Applicant’s favour. However, the Applicant cannot be removed to Somalia whilst non-refoulement obligations are owed to her. For that reason, the Respondent submitted that I should give little or neutral weight to this consideration. However, the Applicant previously requested voluntary removal with the assistance of her family. There is a possibility that such a request could be made again, given that she faces the prospect of indefinite or prolonged immigration detention. Consequently, I find that this consideration should nevertheless weigh strongly in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant’s offending, or any family members of victims. Consequently, this consideration is not relevant.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant arrived in Australia as a young child when she was 12 years of age. She has therefore resided in Australia for approximately 18 years, including all her teenage and adult years.
Although she arrived in Australia as a 12-year-old child, she started offending as a juvenile, with her first juvenile convictions being recorded as two convictions for “trespass” and a cannabis possession offence on 10 December 2007, when the Applicant was nearly 16 years of age (R2/292).
The Applicant has a long history of offending and has spent most of the last 11 years in prison and immigration detention. She has therefore made minimal, if any positive contributions, to the community.
Therefore, these factors diminish the weight to be given to the Applicant’s time in the Australian community and the fact that she came here as a young child.
The Applicant does, however, have strong ties to Australia because all her immediate family members reside here. These family members include her sister UA, two brothers, sister-in-law HO, her niece SA, her son, and numerous nieces and nephews (G21/144). There is minimal, if any, evidence of any direct effect on her family members if she was removed from Australia. However, the family appears to me to be extremely close. UA, SA, and HO are very supportive of, and concerned for the Applicant, and are anxious for her to be returned to live in the Australian community. They are very concerned for the Applicant and her mental health if she remains in immigration detention. As the Applicant is owed non-refoulement obligations, and indefinite detention is the most likely outcome, it is likely that they would suffer emotional detriment if the Applicant remains in immigration detention.
The Applicant’s friend, MB, was strongly supportive of her, as was the Pastor of the Applicant’s Church, JL, who was willing to offer comprehensive support and mentoring to assist the Applicant to re-integrate into the Australian community. I also note a support letter from the Chairman of the Absame Community, whose members are predominantly from Somalia (G40/276). This community support is another tie that the Applicant has to the Australian community.
On balance, I find that paragraph 9.4.1 of Direction No 90, being the strength, nature and duration of the Applicant’s ties to Australia, weighs moderately in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 90. These were:
(a)The protection of the Australian community primary consideration weighed moderately against the revocation of the Cancellation Decision.
(b)With respect to the best interests of minor children:
(i)the best interests of the Applicant’s 12-year-old son, A, weighed strongly in favour of revocation of the Cancellation Decision;
(ii)the best interests of the Applicant’s 12 nieces and nephews weighed slightly in favour of the revocation of the Cancellation Decision; and
(iii)there was insufficient evidence to make a finding about the best interests of HO’s children and MB’s grandchildren, and so I have treated their interests as being neutral.
(c)The expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
International non-refoulement obligations weighed very strongly in favour of the revocation of the Cancellation Decision because:
(i) Australia owes non-refoulement obligations to the Applicant who therefore cannot be refouled to Somalia; and
(ii) s 501F(3) of the Migration Act does not apply, and consequently the most likely outcome of a decision not to revoke the Cancellation Decision is that the Applicant faces detention for an indefinite or prolonged period.
(b)The extent of impediments if removed weighed strongly in favour of the revocation of the Cancellation Decision.
(c)The Applicant’s links to the Australian community weighed moderately in favour of the revocation of the Cancellation Decision.
Although primary considerations are generally to be given greater weight (para 7(2) of Direction No 90), they are not hierarchical and other considerations can outweigh primary considerations.
Thus, despite two of the primary considerations (the protection of the Australian community, and the expectations of the Australian community) weighing moderately against the revocation of the Cancellation Decision, I find that they are outweighed by the best interests of the Applicant’s 12-year-old son, A, and the other considerations that weigh very strongly and strongly in favour of revocation of the Cancellation Decision. These are Australia’s international non-refoulement obligations and the extent of impediments if removed. The Applicant’s links to the Australian community which weighed moderately in favour of the revocation of the Cancellation Decision, and the best interests of the Applicant’s 12 minor nieces and nephews which weigh slightly in favour of the revocation of the Cancellation Decision, further add to the weighing exercise being in the Applicant’s favour.
The Applicant is a vulnerable woman who is the subject of a guardianship and administration order. She has a mental disability and a history of trauma. She is owed non-refoulement obligations and faces the prospect of indefinite detention if the Cancellation Decision is not revoked.
I therefore find that the primary and other considerations that weigh in the Applicant’s favour, particularly Australia’s international non-refoulement obligations (including the prospect of indefinite detention) and the best interests of the Applicant’s 12-year-old son, are significant reasons which carry significant weight, such that I am satisfied that the Cancellation Decision should be revoked (Viane).
In other words, there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked. The effect of my decision is that the Applicant now has her Visa again.
For the reasons I explained above in the section on international non-refoulement obligations, it is my view that s 501F(3) of the Migration Act does not apply. The Applicant, because of this decision, now has a Visa (because the Cancellation Decision has been revoked) and is no longer an unlawful non-citizen. She should be released from immigration detention immediately so as not to be unlawfully detained.
DECISION
The Reviewable Decision dated 24 May 2022 is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act.
It is my view that 501F(3) of the Migration Act does not apply. Consequently, the Applicant should be released from immigration detention as soon as possible so as not to be unlawfully detained.

I certify that the preceding 242 (two hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.................[Sgd]....................................................
Associate
Dated: 10 August 2022

Date of hearing: 28 and 29 July 2022

Representative for the Applicant: Ms A Battisson, Human Rights for All Pty Ltd

Representative for the Respondent:

Ms E Tattersall, Sparke Helmore Lawyers

Date of hearing:	28 and 29 July 2022
Representative for the Applicant:	Ms A Battisson, Human Rights for All Pty Ltd
Representative for the Respondent:	Ms E Tattersall, Sparke Helmore Lawyers