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

This matter concerned an application by QSJQ, a national of Somalia, to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa. The cancellation was based on QSJQ failing to pass the character test due to a lengthy record of offending, including a single instance of serious sexual offences. The Administrative Appeals Tribunal was required to determine whether there was "another reason" to revoke the mandatory cancellation decision.

The Tribunal considered two primary aspects in its determination. Firstly, it assessed the protection of the Australian community, noting the principle that remaining in Australia is a privilege contingent on law-abiding conduct. This involved a detailed examination of QSJQ's extensive criminal history, which spanned from 2006 to 2019 and included convictions for rape, assault, resisting police, property offences, and armed robbery, with a significant custodial sentence imposed in 2019. Secondly, the Tribunal considered QSJQ's claims regarding potential harm if returned to Somalia, which engaged non-refoulement obligations under international human rights conventions. QSJQ asserted that he would be unsafe in Somalia due to ongoing conflict, potential recruitment by extremist groups, discrimination as a minority clan member, and a lack of support, which he believed would exacerbate his existing mental health and cognitive impairment issues.

In its reasoning, the Tribunal acknowledged the seriousness of QSJQ's offending, particularly the sexual offences, which were described as "callous and brazen attacks." However, it also took into account expert evidence suggesting QSJQ's judgment was impaired by intoxication and alcohol abuse, and that he exhibited a "significant level of impairment" and borderline intellectual functioning, indicating cognitive impairment. The Tribunal noted that these factors, along with his difficult personal history including fleeing conflict and experiencing violence, were considered by the sentencing judge in his earlier matters. Regarding the non-refoulement claims, the Tribunal accepted that QSJQ had not lived in Somalia for most of his life, had limited knowledge of the country, and expressed genuine fear of returning due to the prevailing dangers and his minority status.

The Tribunal ultimately set aside the decision to refuse to revoke the mandatory cancellation and substituted a decision to revoke the mandatory cancellation. This outcome was based on the finding that, when considering the totality of QSJQ's circumstances, including his significant cognitive and intellectual impairments, his traumatic background, and the genuine risks he faced upon return to Somalia, there was another reason to revoke the mandatory cancellation.