QSJQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

QSJQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2095 (19 July 2023)
Division:GENERAL DIVISION
File Number: 2022/1786
Re:QSJQ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:19 July 2023
Place:Melbourne

The decision of the delegate not to revoke the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is set aside and substituted with the decision that there is another reason the mandatory cancellation should be revoked.
....[sgd]....................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – national of Somalia – Class BB Subclass 155 Five Year Resident Return visa – failure to pass character test – single instance of sexual offences – lengthy record of other offending – whether another reason cancellation should be revoked – mental health and cognitive impairment issues – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Secondary Materials
UK Home Office, ‘Country Policy and Information Note Somalia (South and Central): Fear of Al Shabaab’, Document #2040615 (Web Page) < FOR DECISION
Dr Stewart Fenwick, Senior Member
BACKGROUND

QSJQ seeks review of the decision of a delegate of a Minister administering the Migration Act 1958 (the Act) under s 501CA(4) of the Act not to revoke the mandatory of cancellation of his Class BB Subclass 155 Five Year Resident Return visa under s 501(3A). This matter was remitted to the Tribunal by consent on 2 September 2022 for reconsideration following an earlier decision of the Tribunal.
The Applicant was born in Somalia in 1986 and arrived in Australia in late 2004 on a refugee visa, aged just under 18 years. He left Somalia when young due to conflict breaking out and spent most of the intervening years in a refugee camp in Malawi. In late 2006 QSJQ was convicted of serious sexual offending and he subsequently received convictions each year until 2019, other than 2015, around which time the Applicant was in Africa. The Applicant was given a written warning in 2009 that his refugee visa was liable to cancellation upon further offending. QSJQ’s visa was subsequently subject to mandatory cancellation in December 2019, and this decision was affirmed by the delegate in February 2022.
The Applicant was originally unrepresented for the hearing on remittal and the matter was listed to commence on 23 January 2023. The Applicant did not comply with the timeline for submissions but did ultimately lodge substantial material late on the preceding Friday with assistance from Refugee Legal. This material includes updated statements from QSJQ and family members, and an updated report from a clinical psychologist. I determined that the best course was to adjourn the hearing and it was listed to recommence on 1 March 2023.
Following a Directions Hearing in February 2023 the matter was further adjourned to permit the parties to make submissions consistent with Direction 99 made under s 499 of the Act (the Direction), which was scheduled to come into force, and subsequently did so, on 3 March 2023. QSJQ was represented at this Directions Hearing and also ultimately, at the hearing, by counsel.
Material lodged by the Applicant comprises:
(a)Submissions in Reply, dated 20 January 2023 (First Reply);
(b)Statement of Facts, Issues and Contentions, dated 19 April 2023 (ASFIC);
(c)Reply to the RSFIC, dated 12 May 2023 (Second Reply);
(d)Further Contentions, dated 15 May 2023 (FC); and
(e)Tender Bundle (AB).
Material lodged by the Respondent comprises:
(a)documents lodged pursuant to s 501 of the Act (G);
(b)Supplementary G documents (SG);
(c)RSFIC, dated 28 April 2023; and
(d)Remittal Bundle (RB).
Evidence was given at the hearing by the Applicant, his sister, Ms D; his father, Mr Y; Ms Alison Mynard, clinical psychologist; and Mr Mukhtar Mohammed, a representative of Muslim Connect.
LEGISLATION
The mandatory cancellation of a visa under s 501(3A) of the Act arises in circumstances where a person fails the ‘character test’. Specifically, this occurs where a person has a substantial criminal record because of the operation of ss 501(6)(a) and (7), and is serving a sentence of imprisonment. A substantial criminal record is defined to include being sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Mandatory cancellation may be revoked under s 501CA(4) in circumstances where there has been written notice and an invitation to provide representations, and the Minister (or decision-maker) is satisfied that either the person passes the character test, or there is another reason why the original decision should be revoked.
In the exercise of powers under the Act, I must comply, under s 499(2A), with the terms of the Direction. I will address the various specified considerations set out in the Direction, noting that I am not restricted, in considering whether another reason exists to revoke the mandatory cancellation, to only these matters.
The Direction identifies a set of Principles [5.2] that provide the framework for decision-making. These 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 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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)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 8.5(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 risk of causing physical harm to the Australian community.
Considerations are identified as ‘primary’ and ‘other’. The Direction provides that primary considerations should generally be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations [7].
ISSUES
The first issue in this matter is whether the Applicant passes the ‘character test’. I am satisfied from reviewing the Applicant’s criminal history (RB1/G3) that QSJQ has a substantial criminal record in the terms of the Act, having been sentenced on multiple occasions to terms of imprisonment of 12 months or more.
Accordingly, the remaining issue for consideration is whether another reason exists to revoke the mandatory cancellation decision.
PRIMARY CONSIDERATIONS
Protection of the Australian community
There are two limbs to this consideration which I will address separately, before making a summary finding. I am to have particular regard to the principle that remaining in Australia is a privilege conferred in the expectation that non-citizens are law abiding and will not harm individuals or the Australian community [8.1(1)].
The nature and seriousness of the conduct
QSJQ has received convictions at approximately 20 court appearances between 2006 and 2019. In December 2006 a county court sentenced him to a total effective sentence in a youth training facility of three years for rape and assault charges. Subsequent convictions include: conduct offences including resist police; contraventions of community corrections and family violence orders; property offences including burglary and criminal damage; injury and assault charges; and, weapons and armed robbery offences.
A variety of court outcomes have been imposed primarily in Magistrates’ courts, other than the attendances in a county court in 2006 and 2019 for the armed robberies. In a number of instances fines or compensation orders of relatively low value have been imposed. QSJQ has also received community corrections orders on two occasions. Sentences of imprisonment have been imposed ranging from several days to several months, sometimes in aggregate and some sentences have been wholly or partially suspended. QSJQ was sentenced at his final court appearance in early 2019 to a total effective sentence of four and a half years’ imprisonment.
I summarise as follows from the sentencing remarks for the sexual offending (G5):
(a)QSJQ pleaded guilty to rape, assault with intent to rape and common assault for offending that took place in late 2005 in broad daylight against two victims;
(b)the Applicant jumped on a woman whom he knew by sight, having seen her in the area in the past, assaulted her, digitally penetrated her and, despite the intervention of several people, continued the attack and ultimately unsuccessfully tried to further penetrate the victim with his penis;
(c)in the second instance shortly after, QSJQ climbed over a fence after asking the victim for money, grabbed her by the throat and pushed her against a shed until the victim managed to hit him causing him to break off the assault;
(d)these were ‘serious offences committed in dreadful circumstances and causing terrible fear and harm and distress’ comprised of ‘callous and brazen attacks’;
(e)the victim of the first attack had an intellectual disability although QSJQ did not know this at the time;
(f)QSJQ’s judgement was impaired at the time due to being extremely intoxicated, and alcohol abuse had been a feature of his recent history, and his capacity to deal with alcohol bore on long term prospects for rehabilitation;
(g)the Applicant’s personal circumstances also include ‘exposure to extreme events and emotions’ in fleeing Somalia for Kenya, Tanzania and Malawi as well as later violent assault in South Africa;
(h)QSJQ did not settle well in Australia and schooling was not successful and he associated with older Sudanese men, and reports of a psychologist and juvenile justice framed his offending against a background as a ‘fragile and emotionally or psychologically damaged individual’;
(i)assessments showed a ‘significant level of impairment’ and borderline intellectual functioning, issues with memory and also psychomotor slowing, being a significant indicator of a degree of cognitive impairment, with psychiatric disorder ruled out;
(j)expert evidence also pointed to the absence of beliefs and attitudes usually detected among sex offenders; and
(k)the judge took into account QSJQ’s youth, the importance of rehabilitation and the Applicant’s good prospects, as well as the availability of an age-appropriate sex offender program in youth detention, and the relatively lesser role for general deterrence given the Applicant’s intellectual and cognitive functioning.
I also summarise as follows from the sentencing remarks for the armed robbery offending (G4):
(a)QSJQ was convicted by jury verdict after a four-day trial, guilty pleas not having been accepted, and he was on bail for shoplifting offences at the time and a community corrections order was in place;
(b)armed robbery is a very serious criminal offence with a maximum penalty of 25 years, and this offending occurred in company with a principal offender;
(c)two robberies close in time were committed against a bottle shop where the principal offender was armed with a screwdriver;
(d)the third instance took place later the same day at a Subway store where QSJQ removed the till while the principal offender displayed a concealed knife;
(e)all three offences constituted lower mid-range offending, committed at night against ‘soft targets’, but took place with little planning or sophistication, and no actual force or physical violence was used;
(f)the offending appeared to have been motivated by a need to obtain alcohol and/or money to buy alcohol, but this was not considered a mitigating circumstance in itself;
(g)QSJQ travelled to Somalia from 2014-2016 and discovered that his father, thought to be dead, was alive and the Applicant also married and had a child, with whom he lost contact while in custody;
(h)in Australia, the Applicant drank until he passed out and also had a daily cannabis habit and Ms Mynard, Clinical Psychologist, ascertained that QSJQ scored in the highest possible range for Alcohol Use Disorder, as well as identifying Post-Traumatic Stress Disorder, depression in the moderate range, stress in the severe range, and anxiety in the very severe range, leading to diagnoses of major depressive disorder and generalised anxiety disorder;
(i)Ms Mynard also assessed the Applicant as having an IQ of 71, being ‘borderline cognitive functioning’;
(j)sentencing was carried out on the basis that QSJQ’s ‘moral culpability [was] lessened by reason of [his] intellectual disability’, that there seemed to be a linkage between his deprived background, trauma and alcohol abuse and offending; and
(k)QSJQ was required to serve a minimum of three years prior to being eligible for parole.
In his evidence, QSJQ acknowledged his serious offending, and confirmed his high level consumption of alcohol. He stated that his family were strict Muslims and alcohol was not allowed, thus when intoxicated he would sleep in the park or at a friend’s place. QSJQ acknowledged his family raising intervention orders against him but explained that he had also been bailed to his home address. I understood him to be indicating that compliance was difficult for this reason.
QSJQ stated that he had difficulty complying with his community based orders as he struggled to find the address of places or services he was required to attend. He also stated that further arrests interrupted compliance and this was also the reason he had not completed the Court Integrated Services Program (CISP), but he stated that he had managed to complete four months.[1]
[1] A court-managed program in which case managers provide support and coordinate service referrals for eligible accused persons.
The Applicant was asked in cross-examination if he remembered getting a letter about visa cancellation. QSJQ responded ‘not really’, but added that he remembered talking to lawyers about this and understood the consequences.
Ms D confirmed in her evidence that QSJQ experienced trauma as a child in Africa. She also described him as being a ‘wonderful man’ and a ‘beautiful boy’ when not drinking. Ms D stated that they discovered their father was alive in the early 2000’s, and that he has now been in Australia for almost two years.
Submissions and findings
It was acknowledged in closing submissions that QSJQ’s rape and armed robbery offending was serious. However it was contended that the sexual offending was not repeated and the Applicant was sentenced as a youth offender. Further, it was noted that his role in the armed robberies was accessorial.
It was further submitted that there is limited information available about his wider offending record, however some offending such as theft, drunkenness and resist arrest were clearly less serious. It was submitted for QSJQ that his experiences of trauma underpinned a cycle of alcohol abuse and offending.
Written submissions note that QSJQ concedes that he reoffended after receiving a warning from the Department in 2008. These submissions also stress the mitigating effect of trauma, alcohol abuse and QSJQ’s issues with intellectual functioning. It is also contended that there is limited material elaborating on family violence offending, which has been accepted in any event by family members as limited (Reply).
At the hearing the Respondent submitted that the most recent sentence of over four years for armed robbery indicates very serious offending. Emphasis was also placed on the frequency of offending over many years and the number of terms of imprisonment imposed, reflecting the seriousness of his record. It was contended that the Applicant had demonstrated non-compliance with orders and continued to offend following his formal warning.
It is also contended in written submissions that the rape offending was against a vulnerable member of the community, based on her intellectual disability, and that QSJQ has been convicted of offending relating to family violence.
QSJQ has been convicted of multiple offences involving violence, including against a woman, and one series of sexual offences against a woman, and a vulnerable member of the community, and this conduct should accordingly be considered very serious [8.1.1(1) a) i and ii, and b) ii]. The Applicant’s evidence tended to minimise the conduct related to family violence, however overall I have limited material to explain the nature of the offending [8.1.1(1) a) iii].
Numerous custodial sentences have been imposed for the Applicant’s offending, including two quite substantial terms, and he has otherwise been subject to a wide range of other forms of sentencing [8.1.1(1) c)]. I consider his offending to be frequent and there is no trend of increasing seriousness, particularly given the earlier and later instances of more serious conduct [8.1.1(1) d)] and the cumulative effect of repeated offending weighs against the Applicant to a relatively serious extent [8.1.1(1) e)].
Finally, I take account of the fact that QSJQ committed a substantial number of offences after receiving a formal warning about the consequences of further offending [8.1.1(1) g)]. While the importance of this may have been somewhat challenging for the Applicant to comprehend, given his intellectual deficit, his evidence demonstrates that he apparently had the matter explained to him by a lawyer.
The risk to the Australian community
In this part of this primary consideration I 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 may be so serious as to be considered unacceptable [8.1.2(1)].

In his written statements (AB4) QSJQ states:
(a)as at early 2023 he has remained alcohol and drug free for over five years and his behaviour has been good, has participated in Alcoholics Anonymous in prison, and is committed to abstinence;
(b)he is ashamed of his sexual offending and completed a sex offender program, and he accepts responsibility for the armed robbery offences;
(c)he will not drink and bring shame to his family again, and he receives guidance from his father who has settled in Australia, and wants a close relationship with his nieces and nephews;
(d)he looks forward to receiving support from both Muslim and Jesuit support services upon release, as well as psychological services which have already helped him understand the causes of his offending;
(e)that he is practising his Muslim faith;
(f)after being advised in 2009 his visa would not be cancelled, he intended to rehabilitate but was young and unable to cope, continued drinking and experienced homelessness;
(g)he has reconnected with a former girlfriend from a refugee camp in Africa, who lives interstate, she is divorced and they have recommenced their relationship by phone; and
(h)he wishes to get on his feet in order to support his daughter and either bring her to Australia or help her and her mother where they are safe, albeit they are divorced.
When asked in evidence about his first trouble with the police, QSJQ responded that being in Australia felt like being on an alien planet: ‘it was hard for me’. He described life after time in the youth justice facility as a rollercoaster, and that he dealt with shame and became to feel more comfortable being in jail.
QSJQ stated that if released he would choose good people to be around, and good surroundings. Asked why this was important, the Applicant replied this is because the right people are those ‘who can inspire you’. The Applicant confirmed his participation in rehabilitation programs, his interest in Alcoholics Anonymous, and practising Islam. In response to a question from myself, QSJQ stated he did not drink during his return to Africa as he had ‘good surroundings’, which included finding a purpose in life by being a father.
In cross-examination, QSJQ reiterated that his compliance with previous programs of support was made difficult by getting lost for appointments, and sometimes not being organised. He stated that in the past he drank out of frustration, but in future he wanted to do his family proud and to ‘do good’. The Applicant accepted that he had no work experience or skills but considered he had learned skills while ‘inside’.
In her written statements (AB5), Ms D states that she has maintained regular contact with QSJQ in prison and immigration detention. It is her intention to do everything she can to help him change if he is given another chance. Ms D states that now their father lives in Australia he will also be able to support QSJQ.
In her evidence, Ms D displayed some, but limited, appreciation for her brother’s offending, but noted that he was in prison at the time she first travelled to Australia. She stated that QSJQ has told her that ‘drink destroys life’, and she thinks he understands his mistakes now. Ms D stated the Applicant has a closer relationship with her two oldest children, and that there are a large number of nieces and nephews in their close family. She stated that there is room for QSJQ to stay with their parents, or with her if she had space, although he is not welcome should he drink again. Ms D would also help the Applicant attend appointments and link with social services.
In written statements (AB8), Mr Y states that he speaks with his son on the phone a lot, ‘will keep advising and monitoring him’ and urge him to seek support. He understands that QSJQ has a problem with alcohol, that ‘it is a big thing’ for them to be reunited, and they will work as a family to support him. In his evidence, Mr Y confirmed that the Applicant would live with him and his wife, QSJQ’s mother. He knew about QSJQ’s rape offending but noted that he had limited information in general about his criminal history.
In her written statement (AB7), QSJQ’s mother notes that he is now her only surviving son, two others being deceased, of a total of nine children. One son died after an attack on the family home in Mogadishu in 1993, another died last year after returning to Somalia with mental health problems. She affirms her willingness to assist the Applicant in the future and acknowledges having a quite limited understanding of his offending history.
One of the Applicant’s other sisters states in her written statements (AB6) that she and her mother have been supporting QSJQ, and that she will continue to do so, noting they have been close despite his problems with alcohol. She states that he has, for the first time, acknowledged that what has happened is his fault. The writer explains that their father separated from their mother in 1989 and married another woman, following which they only saw him occasionally. She states that QSJQ had friends prior to coming to Australia but felt very lonely here, also stating that he was seriously assaulted by the men he used to associate with. The writer also states that she can help her brother find employment at a meat factory.
As noted, Ms Mynard first assessed QSJQ around the time of his most recent offending and sentencing. In this 2019 report (RB2/SG2, 76) she records the Applicant’s early life in refugee camps, and a medical history including being struck on the head with firearms and stabbed seven times in the back in South Africa. She noted a history of depressive feelings and suicidal thinking, and exposure to chronic and severe trauma throughout his lifetime. I noted above in a summary of sentencing remarks some key clinical findings. Ms Mynard considers that QSJQ may have been ‘overlooked by the system’ due to his ‘street smarts’ and expresses the view that his low cognitive functioning may be related to an alcohol related brain injury.
I summarise aspects of her 2023 report (AB9) as follows:
(a)alcohol was a key factor in the impairment of judgement in his sexual offending, but even when alcohol affected, QSJQ has not acted in a similar way before or since, and it appears various factors at that time led to a deteriorated mental state [34];
(b)low cognitive function, mental illness and substance addictions have contributed to the Applicant’s general offending, and reasoning skills were affected by alcohol cravings [36];
(c)acting out to impress his co-offender and impulsivity arising from poor processing skills were factors in the armed robbery offending [37]-[38];
(d)QSJQ’s insight was assessed previously as moderate, but his ‘overall insight level appears to be growing’ due to participation in rehabilitation programs, and he appears to have made positive gains in adopting coping mechanisms [42], [44];
(e)in summary, the Applicant is at low risk of sexual reoffending, the risk of general offending is in low ranges if he remains abstinent, but high with relapse, and the risk of relapse has reduced over time [46];
(f)the risk of reoffending will reduce if QSJQ is well connected and engages with nine specified transition factors including housing with family, attendance at Alcoholics Anonymous, involvement with the Muslim community, and counselling and psychological services [61]; and
(g)compared to 2019, the Applicant presents as much more insightful including about his cognitive challenges, and a holistic approach to his recovery is important [64].
In her evidence, Ms Mynard confirmed her diagnoses of Post-Traumatic Stress Disorder (PTSD), Generalised Anxiety Disorder, Major Depressive Disorder (recurring), Alcohol Dependence Disorder, Cannabis Use Disorder, and borderline intellectual functioning. She stated that alcohol use reduces arousal associated with PTSD, but then affects an individual’s judgement and can halt emotional maturity. Ms Mynard also linked QSJQ’s offending to his obtaining of alcohol to prevent withdrawal symptoms.
In respect of the Applicant’s cognitive function, Ms Mynard explained that his IQ of 71 put him one point away from the level of a disability. While testing of perceptual reasoning revealed a high score than other dimensions, this still put him in the bottom 18% of the community. His lowest score for working memory indicated that the Applicant can get quickly overwhelmed.
With respect to her observations of changes in insight, Ms Mynard described this as a ‘really big leap’ as QSJQ was now showing moral reasoning, rather than his previous concrete understanding of right and wrong. She also confirmed that the Applicant had described to her his past difficulty in maintaining engagement with services in the community, and explained that his conditions made self-advocacy harder.
In cross-examination, Ms Mynard confirmed that she considered QSJQ requires intensive supports if returned to the community. She stated there is ‘always a risk of relapse’ but the risk of this now was lower than previously. In response to questions from myself, Mr Mynard indicated QSJQ would need six months to feel comfortable in the community and up to two years to integrate, and a period of years to address his past traumas.
Correspondence from the Islamic Council of Victoria (AB16), dated in late 2021, confirms that QSJQ was referred to their Muslim Connect Program by Fulham Prison in mid-2021, and was deemed eligible. As noted, the program’s case manager Mr Mohammed, gave evidence and he explained that the program is funded by the Department of Justice as part of its transition and integration work for prisoners. He described a range of supports that are provided including transport, accommodation, funds, clothing, food vouchers and partner referrals, as well as faith and spirituality support. Mr Mohammed also stated that assistance could extend in cases of psycho-social disability to connection with the NDIS, and also connection with employment agencies.
Mr Mohammed noted that the ‘vast majority’ of participants have alcohol and drug and mental health issues. He stated the program partners with MyCentre, which is an Islamic community organisation that offers a range of assistance including counsellors. While Mr Mohammed stated that QSJQ had engaged effectively with the program to date, he acknowledged ‘a good number’ of participants do not maintain engagement. In response to a question from myself, the witness affirmed that Muslim Connect would accept QSJQ into the program as if he were being released from prison. QSJQ would also be eligible for an extension program of an additional three months’ assistance, and Muslim Connect was soon to trial a program for complex cases.
I note, briefly, specific additional material lodged by the Applicant:
(a)a certificate of completion in 2020 for The High Intensity Violence Intervention Program at Fulham Correctional Centre (AB11);
(b)correspondence confirming participation in an offence specific Sex Offenders Program with corrections Victoria, attending 34 sessions as at November 2008, and due for completion in April 2009 (AB12), and associated certificate of completion (AB19);
(c)a statement from QSJQ’s interstate friend that confirms they have rekindled their relationship, but is ‘not planning to rush things’ with the Applicant as she is a single mother, but she understands his history with alcohol and his need for a good environment in order to change (AB25); and
(d)a bundle of certificates for participation in a number of courses by Relationships Australia, and units toward vocational qualifications (AB19).
Submissions and findings
It was submitted at the hearing for the Applicant that his risk of further sexual offending was very low and therefore was of an acceptable level. Reference in support was made to the expert opinion relied on in sentencing, and a reporting regime in respect of sexual offending had not been imposed. Submissions about risk of other offending focussed on the relationship between his conduct, diagnosed conditions and intellectual functioning. It was contended that his attitude had improved, that he had received limited treatment in the past, and that Ms Mynard had identified key factors for QSJQ’s successful transition to the community, including with respect to treatment. In short, it was submitted that there was a low risk of further forms of lower level offending.
A large number of factors mitigating the risk of offending are identified in the Applicant’s written submissions (RSFIC [56]). Specifically, it is contended that these contribute to QSJQ having good prospects of avoiding relapse into alcohol abuse, and – effectively – respond to the caution expressed about rehabilitation in the 2019 sentencing. They include: effective engagement with alcohol and drug rehabilitation; support from Muslim Connect; further support from Ms Mynard; possible referral for assessment for acquired brain injury; and, stable housing with family, and their support. It is also contended that QSJQ successfully completed a High Intensity Violence Intervention Program in prison (FC). The submissions note QSJQ has experienced five years’ of abstinence (Reply).
The Respondent submitted at the hearing that QSJQ’s abstinence from substances has not been tested in the community and, while he may be demonstrating better insight into his pattern of offending, there is a risk he will relapse. Further, his cognitive functioning is not so low that he cannot tell right from wrong, and the Applicant has been convicted in light of this state of affairs. Finally, it was contended that QSJQ has a history of not engaging with support services, raising questions about his future efforts.
In written submissions, it was contended that if QSJQ were to reoffend it would lead to physical, psychological and financial harm, and the risk was so serious as to be unacceptable. Several factors are cited to underpin this, including QSJQ’s significant criminal history, his limited insight into his offending, and his alcohol misuse is only in remission because of custody, and he has been on notice since 2006 as to its consequences.
I consider that, based on the previous nature and seriousness of QSJQ’s offending, that were he to reoffend, the potential harm to the Australian community would be serious [8.1.2(2) a)].
I have before me evidence and material addressing both risk of reoffending, and rehabilitation undertaken by the Applicant [8.1.2(2) b)]. I consider the cumulative weight of professional opinion is to the effect that QSJQ is a low level risk of further sexual offending. QSJQ has not committed further sexual offences since 2005, and has undertaken a rehabilitation course relevant to this type of offending. I therefore find that the Applicant is at low risk of further sexual offending.
In the context of a history of offending heavily influenced by substance abuse, Ms Mynard is of the opinion that QSJQ’s risk of further general offending is low range if he remains abstinent. The evidence of rehabilitation related specifically to this important factor relating to offending is less convincing than that for sexual offending. However, I accept that QSJQ has remained abstinent for a prolonged period due to prison and detention, and has engaged with Alcoholics Anonymous and wishes to in the future.
I accept Ms Mynard’s evidence that the Applicant has developed greater insight into his offending, notwithstanding his continued limitations with cognitive function. I accept, too, that QSJQ has a somewhat patchy history of engagement with relevant social services and supports when in the community previously. However, the evidence overall indicates that he will in future have the benefit of at least one specifically tailored and funded program (Muslim Connect) to assist in transition. He also will have his parents and two sisters who are willing to provide support.
Ms Mynard did not understate the size of the challenge QSJQ faces should he return to the community, and I accept that she considers he needs a good deal of time to re-integrate. Her evidence about the tangible impact upon his daily life of the Applicant’s cognitive deficits, such as being easily overwhelmed, reinforces the nature of this challenge.
On balance, however, I consider the evidence and wider material to indicate that QSJQ has realistic prospects of obtaining and pursuing appropriate supports in the community that will maintain the level of risk of general reoffending at a lower level.
Summary finding
It is submitted for the Applicant that he does not pose an unacceptable risk of further offending. It is also contended that a delegate exercised the discretion not to cancel QSJQ’s visa at an earlier point, which ‘confirms the mitigatory features of the Applicant’s personal circumstances’ in relation to his then offending record (Second Reply).
The Respondent, in contrast, submits that there remains an unacceptable risk the Applicant will reoffend, potentially causing significant harm. For this reason it is contended this primary consideration weighs heavily against revocation.
I do not consider the risk of further offending, of any kind, to be unacceptable because of the nature and circumstances of the key instances of offending, that is – in particular – being related to high level alcohol use, and the findings I have made as to levels of risk.
Overall, however, because of these instances of serious offending, and QSJQ’s history of offending, I consider this primary consideration weighs strongly against revocation.
Family violence committed by the non-citizen
Family violence is defined quite broadly in the Direction to mean a range of behaviour that is violent, threatening that coerces or controls, or causes a family member to be fearful [4(1)].
This primary consideration engages with the Government’s serious concerns about conferring the privilege of remaining in Australia on those who engage in family violence; the concerns ‘in this regard are proportionate to the seriousness of the family violence engaged in’ [8.2(1)].
I noted above a Family Violence Final Intervention Order in September 2016 (AB13) on its terms prevented QSJQ from committing family violence against his mother, intentionally damaging her property, and getting another person to do these things.
The circumstances of the breach of the intervention order are described in a Preliminary Brief (RB1/G6). The Order was made in August 2016 with QSJQ’s mother as the protected person. The Applicant attended his family’s house in contravention of the order more than once in March 2017, essentially being seen by family to be inside, on one of the occasions he was found sleeping on a mattress in the living room.
In her statement (AB7), the Applicant’s mother acknowledges the existence of the order, but states it was to prevent QSJQ attending the home drunk, and QSJQ ‘has not been physically confrontational and I have not had personal conflict with him’.
It was submitted for the Applicant that this consideration weighs only slightly against revocation, with the conduct in question being ‘innocuous’. QSJQ’s conduct was characterised as two breaches of an intervention order on the same day constituted by attendance at his home address. It was further contended that the risk of similar conduct was to be understood as influenced by the mitigating factors raised in respect of risk of reoffending.
The Second Reply points to the inconsistency between the Preliminary Brief and the terms of the final order, and accordingly it should not be taken into account. It is further contended that the evidence indicates both the development of insight, and relevant rehabilitation having been undertaken. Accordingly, this consideration should not weigh against revocation.

The Respondent submitted that the breaches of the intervention order included the occasion on which he stole the keys to a sister’s car. It was otherwise contended the breaches were considered serious as they attracted terms of imprisonment (noted in the RSFIC as a sentence of two months’ imprisonment). It is contended the consideration weighs heavily against revocation due to the absence of insight, and limited evidence of offence-specific rehabilitation.
I accept that this consideration is relevant given that QSJQ has been convicted of a family violence related offence [8.2(2) a)]. However, in considering the identified factors [8.2(3)], I find the conduct was quite infrequent, was not repeated, and that QSJQ has indeed taken steps to address his alcohol use which contributed to the offending.
In recognition of the sentencing arising from breach of the offence I find this consideration weighs against revocation. However, in light of its nature and extent, and given the need for proportionality, I find that it weighs only to a limited extent.
The strength, nature and duration of ties to Australia
Consideration must be given to the impact of a decision on immediate family members who are Australian citizens or have the right to permanently reside here, as well as the strength, nature and duration of family or other social links the non-citizen has [8.3(1), 8.3(3)]. I must have regard also to the nature and duration of other ties to the Australian community, with less weight given in circumstances where the non-citizen was not ordinarily resident in Australia during their formative years and began offending soon after arrival [8.3(4) a)].
In his written statements (AB4) QSJQ states that he wishes to have a strong relationship with his nieces and nephews, noting that he is the only uncle left in the immediate family. He states that the family will suffer and be worried if he is returned to Somalia
When asked in his evidence about the impact of QSJQ retuning to Somalia, Mr Y stated that any parent understands how painful it is when a child goes ‘somewhere terrible’, and that the Applicant’s mother and siblings would be affected.
Ms D identifies QSJQ’s nieces and nephews in her written statements (AB5). They number 15 in total, and range in age from one year old to nearly 20 years old, with all but one currently aged under 18. She states that the Applicant’s return to Somalia would be ‘another trauma for us’. She considers that her mother, herself and another sister (the one providing a written statement) would be affected most by his removal. This other sister also affirms in her statements (AB6) that her children would be very upset if the Applicant did not remain, and states that QSJQ and her mother have a close relationship: ‘it would break our hearts and destroy my mother’s life if [he] is taken from us …’. The Applicant’s mother broadly affirms these views in her statement (AB7).
It was submitted at the hearing for QSJQ that this consideration weighs heavily in favour of revocation, and that all of his immediate family are Australian citizens. Particular emphasis was placed on the impact non-revocation would have on the Applicant’s mother, in the context of her having lost all her other sons, and worry about his wellbeing were he to return to Somalia. Further, Mr Y had only recently resettled in Australia and there was a long period of separation from the Applicant. It was submitted QSJQ had arguably spent formative years in Australia, on the basis he was aged 17 on arrival.
The Respondent submitted that the correct age for the Applicant upon arrival in Australia in 2004 was over 18, and thus he did not spend his formative years here. Moreover, the Applicant has not made a positive contribution while here, was first convicted less than a year after arriving, and has spent significant time in custody. It was contended that, while his family express their willingness to support him, they have limited insight into his offending history. It is submitted that in these circumstances limited weight in favour of revocation should be given to this consideration (RSFIC).
I do not think it is necessary to attempt to resolve the dispute between the parties about QSJQ’s age upon arrival. It is evident from the evidence and material that he spent most of his formative years in Africa. This factor is addressed primarily in respect of ‘other ties’ and, in QSJQ’s case, these are in any event, slender. I do not consider there to be any dispute that the Applicant’s ties more widely are not substantiated by employment or other social or cultural links. Accordingly, I consider I am able to afford some weight to the fact that QSJQ has been in Australia for approximately half his life, noting that he has been incarcerated for substantial periods.
I accept I have material before me about a re-kindled relationship with a former girlfriend who lives interstate. I did not have the benefit of hearing from the individual, so it is difficult to determine how significant this relationship is, but I afford it some weight.
I consider that greater weight can and should be given to the fact that the Applicant is the remaining son of a large family in Australia. Clearly, QSJQ’s past life with his family has been troubled, but I have written and oral evidence about the significant emotional impact that his return to Africa would cause.
For this reason, I consider it appropriate to find that this consideration weighs strongly in favour of revocation.
Bests interests of minor children in Australia
A determination must be made about whether non-revocation is, or is not, in the best interests of a child affected by the decision, and applies to those under 18 at the time of the decision, with individual consideration applied where relevant [8.4(1) – 8.4(3)]. A range of specific considerations about the nature of the relationship with the non-citizen for determining the best interests of the child are identified in the Direction [8.4(4)].
Evidence concerning the minor children in Australia and any impact arising from a decision has been set out adequately above, and I refer to and rely upon it here.
It was submitted for the Applicant that this consideration weighs in favour of revocation more than merely slightly, given the large number of nieces and nephews and the evidence given as to relations and contact between them and the Applicant. I understood that it was also contended that the impact of any decision on the children’s parents would have an impact cumulatively upon the children.
The Respondent submitted that less weight should be given to this consideration given the non-parental relationship, and QSJQ’s time in detention. It is also contended that any weight afforded this consideration should not outweigh those that weigh heavily against QSJQ.
I accept that there are a large number of young nieces and nephews in the immediate family and that QSJQ has had more than minimal interaction with a number of the older children in the past, but there has not been a parental relationship with any of them [8.4(4) a), b), e)]. While less weight is to be given generally to non-parental relationships, I consider that in the circumstances of this matter, where QSJQ is the only remaining uncle in a large family, some weight should be given to the future interests of all minor children. It appears that for some of these children the nature of contact has been primarily indirect [8.4(4) d)]. There is no evidence that any child has been at risk of harm from the Applicant [8.4(4) g), h)].
I find that this consideration weighs somewhat in favour of revocation.
Expectations of the Australian community
This consideration states that the Australian community expect, as a norm, that non-citizens obey the law [8.5(1)]. It may be that non-revocation is appropriate due to the nature of offending, or character concerns, regardless of whether there is a measurable risk of physical harm, specifically in respect of acts of family violence or the commission of serious crimes against women or vulnerable members of the community [8.5(2), (3)].
It was submitted for QSJQ that an inquiry should be made as to the appropriateness of applying the expectation. Therefore, it was contended, his traumatic background affected the application of this consideration and a degree of leniency was appropriate particularly given his cognitive impairment. Written submissions point to the word ‘may’ in the Direction, that is, that the impact of this consideration may vary despite the expectation applying. In short, any community expectation against the revocation of mandatory cancellation should be given very limited weight (ASFIC).
The Respondent relied upon the expectation of the deemed norm, that QSJQ not hold a visa to remain in Australia. It was contended that this consideration weighs heavily against revocation (RSFIC).
I consider the language of the Direction to reflect the position that the expectation that non-citizens obey the law is to be understood as a deemed expectation. That is, in circumstances such as this where the expectation has been breached, and in one set of offending in a serious way, that this expectation should weigh against revocation.
Given the seriousness of some of the Applicant’s criminal offending, and its volume in general, I find that this consideration weighs heavily against revocation.
OTHER CONSIDERATIONS
Several other considerations are identified in the Direction [9(1)], but this does not limit the inquiry due to the nature of the statutory question being considered. Contentions have not been raised in this matter in respect of impact on victims, nor impact on Australian business interests, and I do not consider that the evidence or material raises matters for under these other considerations. Accordingly, they weigh neutrally.
The Applicant’s written submissions raise two further considerations (ASFIC [123]-[124]): the prospect of indefinite detention; and, the financial cost to the Australian community of extended time in immigration detention. I will address the former below.
I consider the latter is not a matter than I can take into consideration. Detention arises as a matter of law, and in any event, its cost is a function of policy decisions by government and the length of any detention. Accordingly, it is largely a matter requiring speculation.
Legal consequences of the decision
Under this other consideration I am required to be mindful of the fact that under the Act, a non-citizen is liable to removal as soon as reasonably practicable, that this is unaffected by any non-refoulement obligation, and in the meantime he will be subject to detention [9.1(1)].
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’. It arises from certain international human rights conventions; and, the scope of the obligation is reflected in the concept of ‘protection obligations’ found in the Act [9.1(2)].
I must consider claims raised by a non-citizen not covered by a protection finding that may give rise to a non-refoulement obligation [9.1.2(1)]. However, it is not necessary to consider such claims at the same level of detail as would take place in a protection visa application, where such a step is open to the non-citizen, and I am not required to make a determination as to whether the obligation is engaged [9.1.2(2)].
In his written statements (AB4) QSJQ states:
(a)the family fled to a refugee camp in Malawi in about 1994, and he spent two years living illegally in South Africa as a teenager;
(b)that to return to Somalia now would be a ‘disaster’, and while he does not know a lot about the country, he knows he will not be safe;
(c)he is afraid of being targeted including by al-Shabaab, whose views he does not agree with, and he knows from his return to ‘the Ethiopia border area’ that they try to recruit in the camps;
(d)he will be discriminated against as a member of a minority clan, and has no support in Somalia, and he would be traumatised from not knowing who to turn to, and he is sure his mental health will get worse;
(e)Mogadishu was his home, but it is a dangerous place, and the whole country is unsafe;
(f)in 2014 he flew with his mother to Addis Ababa in Ethiopia using his temporary travel document, and then travelled to Sheder, which is in Ethiopia, and his family has never been back to Somalia since they fled;
(g)life in the camp was harsh and dangerous, and he underwent an arranged marriage and had a daughter; and
(h)the situation in Somalia has changed and is very dangerous; there is a tribal war and he would be alone with nowhere to live and no money and cannot stay with his family in the refugee camp.
QSJQ confirmed in his evidence that he travelled to Ethiopia in 2014 and did not cross the border into Somalia. He stated that his travel declaration at the time about intending to travel to Somalia was to the effect that he was ‘going home’, and that the area he went to feels like Somalia. QSJQ stated that he was scared for his life should he be returned, that he speaks only ‘50/50’ with a Somali accent and does not know anything about the country having lived most of his life outside of the country. The Applicant also provided some broad responses to particular fears and some limited insight into his mental health condition, which he stated he did not properly understand.
When asked in cross-examination whether he obtained a visa for Ethiopia, QSJQ stated that his mother handled travel arrangements. The Applicant confirmed that his brother died a year ago in Somalia. QSJQ also explained that he speaks a mixture of several African languages and confirmed he would like to see his daughter one day, in particular to bring her to Australia. The Applicant also stated that continued immigration detention would continue his ‘downfall’, which I understood as a reference to the effect of detention on his mental and emotional wellbeing.
In her statement (AB5), Ms D states that she does not believe the Applicant will be able to survive if returned to Somalia. In her evidence she stated that their brother died recently in Borama as his mental health had deteriorated, and stated there is now conflict in Somaliland, where Borama is located. She considered that the Applicant’s Somali language skills are poor, and that he will stand out because of this. Ms D explained that they speak some Somali at home, but also Swahili, a language from Malawi, and also English. She doubted his ability to obtain mental health treatment, given the experience of her deceased brother.
In his statements (AB8), Mr Y states it is impossible, and inconceivable, that QSJQ could return to make a life in Somalia. He refers to the risk of conscription, and notes that he was an old man when last in the north of Somalia and so was of no interest to anyone. In his evidence he confirmed that after separating from his family he moved to Borama and re-established himself there, and that he was there in 2014 when located by his family. Mr Y stated that the Applicant’s mother came to him, but he met QSJQ in Sheder, Ethiopia. He stated it was very simple to cross the Somali border.
When asked in evidence to identify concerns for QSJQ if returned, Mr Y referred to him being a young person, to the existence of al-Shabaab, and the Applicant’s lack of experience in Somalia and limited language skills. He also stated that the Applicant would be easily targeted having lived overseas. Mr Y stated further that a lack of treatment had caused the death of his other son. He also gave evidence consistent with his statement as to his location at the time QSJQ returned to Africa, and the circumstances of their meeting.
I note that the story of the family’s flight from Somalia and eventual settlement in Malawi is elaborated in a statement from the Applicant’s sister (AB6). In her statement (AB7), the Applicant’s mother states that she and Mr Y are members of the minority Madhiban clan and it is traditionally isolated and lacking in social equality. She states there is no one in Somalia who could protect QSJQ. The Applicant’s mother also states that she travelled to Borama prior to her other son’s death last year in order to try to bring him back to Australia. She was there temporarily but does not think QSJQ would be able to survive given the absence of support.
Ms Mynard stated in her evidence that QSJQ would be in a vulnerable state if returned to Somalia, his mental health could decline and he may be triggered leading to a relapse of substance abuse. Given his cognitive deficits the Applicant could also be overwhelmed. When I asked her about his prior return to Africa, she noted that at that time he had the option to return, and his father was also there. When asked about the impact of indefinite detention, Ms Mynard responded that this ‘can’t be a good prospect for anyone’. She considered that his mental health would decline and he is already struggling under present conditions.
I summarise as follows from the most recent country information lodged by the Applicant:
(a)Somali government policy on returnees (undated) (AB22) indicates strict conditions are applied to the return of failed asylum seekers, and states that those in need of psychological and mental health support cannot be returned;
(b)the US State Department (2022) (AB31) reports a very wide range of significant human rights issues, including by the government or its agents, indiscriminate deadly attacks by al-Shabaab, widespread conflict and displacement of civilians, practical restrictions on in-country movement, and disproportionate abuse of minority groups, many of whom continue to live in deep poverty;
(c)the Danish Immigration Service (2020) (AB32) reports that al-Shabaab maintains control over large parts of South and Central Somalia and regularly conducts attacks in Mogadishu, that the security situation remains volatile with all actors committing violations against civilians, and that returnees are dependent upon kinship in the absence of a functioning state, leaving those without a network in a vulnerable position, a position supported in general by DFAT country information (Attachment A to First Reply [48]-[49]);
(d)the United Nations reports (2023) (AB33) that the Ethiopian authorities had registered nearly 100,000 people who have fled from Somaliland in recent times, particularly as a result of a conflict around a city in the southeast of that region;
(e)the International Rescue Committee (2023) (Attachment A to First Reply [24]-[25]) has placed Somalia at the top country on its emergency watch list as a result of drought, catastrophic food insecurity, and conflict;
(f)the United Nations High Commissioner for Refugees (UNHCR) (2022) (Attachment A to First Reply [27]) considers that the current situation in Somalia warrants the maintenance of refugee status;
(g)the United States recently declared that conditions prevent Somalis from returning safely (Attachment A to First Reply [31]);
(h)the Australian Government recommends against travel to Somalia (Attachment A to First Reply [32]);
(i)DFAT country information (2017) (Attachment A to First Reply [38]) reports that those who have spent time in the West can be at risk from al-Shabaab, a position maintained by other sources (Attachment A to First Reply [41]-[46]);
(j)the UK Home Office (2019) (Attachment A to First Reply [50]) identifies the Madhiban as forming part of an outcast minority group that has historically suffered discrimination and marginalisation, including in northern Somaliland,[2] reinforced by recent UNHCR reporting (2022) (Attachment A to First Reply [52]);
(k)DFAT country information (2017) (Attachment A to First Reply [63]) states that there is no functioning health system in Somalia and ‘returnees in need of psychological and mental health support cannot be returned to Somalia at present’;[3] and
(l)Human Rights Watch has reported (2015) (Attachment A to First Reply [65]) that in some instances prison inmates include persons with mental health issues and no criminal record, and academic research (2022) confirms the dire predicament of those with mental health issues remains (Attachment A to First Reply [66]).
[2] At [5.6.2] of the source document which does not now appear on the UK Home Office website but is archived at < This appears to be a reference to the Somali policy noted above as ‘undated’, being a 2015 policy statement (Attachment A to First Reply [70]).

Submissions for the Applicant highlighted risks arising from QSJQ’s membership of the Madhiban minority, as well as other risks from the terrorist group al-Shabaab and other dangers including conscription and summary execution. It was submitted that QSJQ was vulnerable as he has no family support or other networks, and due to his mental health. In response to the Respondent’s contention that Somaliland may be a safe location, it was submitted that the situation has deteriorated and cannot be considered a safe haven. It was also contended that the numerous non-refoulement claims overlap with the subsequent other consideration, and should the Tribunal find against the Applicant on this ground, the impediments he faces on return are insurmountable.
Attachment A to the Applicant’s First Reply comprises the most comprehensive written statement of QSJQ’s claims. It is contended the Applicant’s personal profile places him at high risk of both serious harm as a refugee and significant harm under complementary protection obligations as defined in the Act (being the nature of harm identified in the Direction as pertinent to the question of non-refoulement). This is specifically due to: membership of a minority clan; mental health concerns and cognitive deficits; no effective clan or family support; his disagreement with extremist Islamic views; being a returnee from Australia; no means of support upon return; and, returning with a criminal history.
It is further contended his refugee claims are founded upon membership of particular social groups aligning with the above aspects of his profile and/or his imputed political opinion and/or religion and/or race. It is also contended that he may face discrimination either directly, or indirectly when protection could be withheld. It is contended that there is a real risk of significant harm from al-Shabaab, clan militias, the Somali authorities, and criminal groups or other non-state actors. It is specifically submitted that QSJQ cannot relocate in order to avoid harm. In excess of 150 pages of updated country information is cited in addition to material provided previously.
Further written submissions include:
(a)the delegate in the decision under review considered that non-refoulement obligations are enlivened (ASFIC [91]);
(b)the decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1) does not preclude consideration of non-refoulement, and claims made must be considered (ASFIC [92]-[94]);
(c)significant weight should be given to QSJQ’s claims as they are ‘clear and obvious’ in the context of Somalia, and a decision in this statutory context permits the balancing of factors for and against revocation, unlike the process in respect of a protection visa (ASFIC [95]-[100]);
(d)prolonged and indefinite detention will be a grave outcome for the Applicant with severe consequences for his mental health, the delegate found that there was at the time of that decision no prospect of removal to another country, and QSJQ might request removal under duress (ASFIC [104]-[109]);
(e)the Respondent contends inaccurately that QSJQ returned to Somalia between 2014 and 2016 when the Applicant states that he ‘travelled to the Somali region in Ethiopia on the border with Somalia (Jijiga) which is disputed territory formerly part of Somalia’, and, in any event, the situation in Somalia has deteriorated since QSJQ’s return (Second Reply [45]);
(f)country information reinforces the vulnerability of members of ethnic minorities and the insecurity in the border of Ethiopia and Somalia (FC [4]-[8]); and
(g)in accordance with Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, consideration must be given to the human consequences of decisions of this kind (FC [9]).
Written submissions also identify a small number of previous decisions of the Tribunal in which the minority status of members of the Madhiban clan are recognised as grounds for protection. Ultimately, it is contended that very significant weight be afforded this consideration in QSJQ’s favour.
The Respondent submitted that the Tribunal should accept the contention that QSJQ in fact returned to Somalia in 2014, and that no non-refoulement obligations are owed. It was contended that several sources point to this conclusion: declarations in passenger cards; facts accepted in sentencing remarks; the information provided by the Applicant referenced in Ms Mynard’s first report; and, while not definitive, the Tribunal in the earlier decision found it likely that the Applicant did enter Somalia for a time. It was further contended that should the Tribunal not find in favour of the Applicant here, there is a risk of indefinite detention, and consideration arose for its impact on QSJQ’s mental health.
In written submissions, the Respondent contends that the decision in Plaintiff M1 supports the proposition that the Tribunal can in this case defer assessment of non-refoulement obligations. Several matters are raised in support of this approach, being those summarised above as to contrary indications about the Applicant’s travel in 2014-2016. Further, it is contended there is no evidence supporting QSJQ’s more recent assertion about travel to Ethiopia, including no evidence of having held a visa.
The Respondent also submitted that the delegate found that non-refoulement obligations were owed to the Applicant, and recent DFAT country information states that the security situation is volatile and QSJQ would not have the support of a majority clan. This source is also cited in support of the argument that it is unclear how the Applicant will be identified as a failed asylum seeker. It is further contended that claims to fear harm from generalised violence does not engage non-refoulement obligations. Finally, it is contended that there is a critical lack of evidence supporting the claimed risks of harm and, to the extent that weight is attributed in QSJQ’s favour under this other consideration, it is outweighed by primary considerations.
Written submissions for the Respondent also note that QSJQ would not be removed to Somalia during the time of any protection visa application, and there is only a prospect at this point of prolonged detention. Thus, the legal consequences of an adverse decision at this stage include the possibility of prolonged detention, which also does not outweigh any other findings adverse to the Applicant.
I consider QSJQ himself to have provided only a relatively general description of the harm he will face if returned to Somalia. However, a thorough set of claims have been made on his behalf which I must engage with.
It is appropriate to deal initially with two somewhat related issues, being membership of a minority clan, and the time spent in Africa by QSJQ and his other family members. The Applicant’s mother, according to her own evidence, was briefly in Somalia in quite recent times, as was one of QSJQ’s brothers until his death. The Applicant’s father lived in Somalia until moving to Australia. QSJQ maintains that he did not return to Somalia in 2014, but rather to an adjacent part of Ethiopia.
Leaving aside for the moment the issue of QSJQ’s location between 2014-2016, the presence of family members in Somalia alone does not negate the claim that members of the Madhiban clan face discrimination, or worse fates. I consider, however, that this fact does rob the claim of some of its force. It appears from the material overall that all witnesses have maintained the consistent position over time that QSJQ did not enter Somalia during his return. His mother’s absence from the hearing removed an opportunity to further evaluate the Respondent’s contention about the significance, among other sources, of passenger cards indicating travel to Somalia. On balance, I consider the better view is that QSJQ did not himself enter Somalia.
There is some merit in the Respondent’s contention that much of the country information points to a general picture of a country in a highly dysfunctional state, including from generalised violence. I accept that the material depicts a troubled country in which many people face substantial vulnerabilities for a wide range of reasons. There is also, I consider, information that points to QSJQ personally facing a greater risk of harm due to particular features of his circumstances. These include his mental health and issues with cognitive function, his espoused rejection of more extreme views about Islam, his membership of a minority clan (acknowledging the caveat above as to the force of this claim), in addition to his status as a returning asylum seeker which arguable puts him at odds with published government policy.
I take into account here that QSJQ may not in fact be readily perceived as having mental health issues. That is, he is not medicated and does not fall into a category of mental health concern such that his behaviour might attract attention. However, I accept the evidence that he has in the past not coped well with his PTSD in particular, that this led to patterns of behaviour that caused him to be vulnerable and to a degree of dislocation from family and society, and to his criminal offending. It also appears that the Applicant’s established low mental functioning has played a role in this dislocation as well.
While it is the case that the protection visa application process would permit a more thorough evaluation of the diverse claims made by QSJQ, I am satisfied that there is a realistic possibility that he would face harm of the type contemplated by the Direction if he were to be returned to Somalia. I place particular emphasis here on the cumulative impact of mental health conditions and cognitive deficits in this context, in conjunction with his membership of a minority clan.
I understand the Respondent to acknowledge that there is, in these circumstances, a likelihood of a period of further or prolonged detention. I accept that the period of any further detention is somewhat speculative. Nonetheless, based in part on the evidence of Ms Mynard, I consider it likely that an extended period of detention would have negative consequences for QSJQ’s mental health conditions, and cumulatively with his near-disability level of intellectual functioning.
Overall, therefore, I find that this other consideration weighs strongly in favour of revocation.
Extent of impediments if removed
I am required to consider the extent of any impediments a non-citizen may face if removed 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)’. This assessment is to take into account their age, health, and substantial language or cultural barriers, and social, medical and/or other economic supports available [9.2(1)].
I refer to and rely on here relevant evidence about QSJQ’s capacity to integrate into Somali life, and about his family make up more generally, as well as country information set out above.
In evidence, QSJQ stated that he left Somalia at a young age having grown up in Mogadishu. As a teenager, he also spent around two years working in South Africa, where he was stabbed. He stated that it would be hard to survive should he return to Somalia, and had not received reports about life there from anyone.
Ms D stated in evidence that she did not think QSJQ would receive treatment for his mental health issues in Somalia, since they were unable to help her other brother. She stated that unlike other tribes, the Madhiban do not have a tribal seat, and live everywhere and are discriminated against widely.
I asked Mr Y where he spent most of his time in Somalia until his recent move to Australia, and who he relied upon. Mr Y stated that he lived for many years in Borama, but that he survived only by asking people for help. He also stated that it had been peaceful until recently. Mr Y also confirmed they have no other relatives in Somalia.
Written submissions for the Applicant (ASFIC) contend that QSJQ faces substantial impediments in returning to Somalia, and that this other consideration weighs heavily in favour of revocation. All submissions in respect of the previous other consideration are stated to apply equally to this consideration. The weaknesses of the Somali health system are stressed, and it is contended that the Applicant’s mental health will deteriorate if returned. It is also contended that his limited language skills and lack of family support threaten his capacity to survive. In short, QSJQ will struggle to subsist.
Further contentions (Second Reply) refer to the fact that Somali is considered a failed state and is currently in a humanitarian and security crisis. It is submitted that the situation in Somalia has deteriorated since QSJQ’s time back in Africa, his father is now in Australia, his marriage has ended, and his emotional resources are depleted from detention. It is also specifically contended that published Somali government policy prevents the Applicant’s return due not only to his mental health, but also offending record.
The Respondent submitted that what language skills the Applicant had would be of assistance. It was contended QSJQ could maintain basic living standards, but the practical hardships arising on return were acknowledged. Written submissions highlight that the Applicant has spent significant periods in Somalia and Ethiopia, and therefore there are unlikely to be substantial language or cultural barriers, and that he would have the same access to social, medical or economic supports as other citizens.
I do not consider there is anything remarkable about QSJQ’s age or physical health that would pose an impediment to life in Somalia. I do accept, however, that the weight of evidence is to the effect that QSJQ faces language and cultural barriers to leading life in Somalia. There is no evidence before me to displace the evidence given by various witnesses that QSJQ is not fluent in Somali. I also accept that, after a lengthy period of time living out of the country, and in Australia in particular, he is likely to face not insignificant challenges. There is, further, no evidence to contradict the consistent position put by witnesses that QSJQ would not have the support of friends or family members.
These challenges are made more potent by a combination of factors. These include QSJQ’s mental health, cognitive limitations, and his status as a member of a minority clan. While QSJQ has recently completed a number of vocational training units, he otherwise lacks a sound work experience or actual qualifications. These factors make him vulnerable, and this vulnerability would pertain in Somalia’s dysfunctional social and economic conditions. In sum, I consider that QSJQ would most likely face very substantial challenges in attaining basic living standards.
Accordingly, I find that his consideration weighs heavily in favour of revocation.
CONCLUSION
Of the primary considerations, I have found that Protection of the Australian community and Expectations of the Australian community weigh strongly against revocation, and that Family violence committed by the non-citizen weighs to a limited extent against revocation. I have also found that the considerations Best interests of minor children in Australia affected by the decision weighs somewhat in favour of revocation and The strength, nature and duration of ties to Australia weighs strongly in favour of revocation.
Of the other considerations, I have found that Legal consequences of the decision and Extent of impediments if removed weigh strongly in favour of revocation. I found that the two other specified considerations weigh neutrally. Of the two further considerations raised, one has been addressed under legal consequences (indefinite detention), I also found that I was not able to consider the matter of the cost of detention.
My findings overall are relatively balanced, particularly as regards those considerations weighing strongly for, and strongly against, revocation. Generally, primary considerations should be given more weight and therefore, ordinarily, this might result in a final outcome adverse to the Applicant. However, the principles set out in the Direction contemplate that countervailing considerations may in some circumstances be sufficient to justify revoking a cancellation.
In this instance, I consider that the risk of harm and evident impediments facing QSJQ were he to be returned to Somalia outweigh the low level of risk that he is likely to pose to the Australian community. I have acknowledged in my other findings the seriousness of the Applicant’s offending, however QSJQ’s personal history including his offending history is marked by his diagnosed mental health conditions and cognitive functioning that is so low as to be very nearly at the level of a disability.
Accordingly, I find that there is another reason that the mandatory cancellation of QSJQ’s visa should be revoked.
DECISION
For the reasons given above, the decision of the delegate not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is set aside and substituted with the decision that there is another reason why the mandatory cancellation should be revoked.

I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

............................[sgd]..........................................
Associate
Dated: 19 July 2023

Date(s) of hearing: 22 and 23 May 2023

Applicant: QSJQ

Counsel for the Applicant: Mr David Carolan

Solicitors for the Applicant: Refugee Legal

Respondent:
Minister for Immigration, Citizenship and Multicultural Affairs

Advocate for the Respondent: Ms Samantha Liddy

Solicitors for the Respondent: Sparke Helmore Lawyers

[2023] AATA 2095

19 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Expert Evidence

Date(s) of hearing:	22 and 23 May 2023
Applicant:	QSJQ
Counsel for the Applicant:	Mr David Carolan
Solicitors for the Applicant:	Refugee Legal
Respondent:	Minister for Immigration, Citizenship and Multicultural Affairs
Advocate for the Respondent:	Ms Samantha Liddy
Solicitors for the Respondent:	Sparke Helmore Lawyers