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

[2023] AATA 81

RNVF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 81 (1 February 2023)

Division:GENERAL DIVISION

File Number:          2021/1440

Re:RNVF  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr M Evans-Bonner

Date:1 February 2023

Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 4 March 2021, 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).

.............[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 – extensive history of offending including intentionally cause serious injury, armed robbery and rape –  Applicant is a 42-year-old citizen of Somalia who arrived in Australia when he was 14 years of age – 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 minor nieces and nephews – minimal information about minor children – expectations of the Australian community – Australia’s international non-refoulement obligations – links to the Australian community – strength, nature and duration of ties to Australia – Applicant has been held in immigration detention for the last eight years – Applicant has been seriously assaulted twice in immigration detention –  Applicant is facing the prospect of prolonged or indefinite detention for a further period spanning years – Applicant has a history of trauma, self-harm and mental health issues – Reviewable Decision set aside and substituted

Legislation

Migration Act 1958 (Cth) ss 36A, 36(1C), 48A, 48B, 189, 195A, 197AB, 197C, 197C(3), 197C(4), 197C(5), 197C(6), 197C(7), 198, 499, 499(1), 499(2A), 501, 501(1), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)

Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185

NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143

PKZM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 845

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

PNLB and Minister for Immigration and Border Protection [2018] AATA 162

RNVF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1522

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531

VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921

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

Amnesty International, Somalia (2021) < of Foreign Affairs and Trade, “DFAT Country Information Report Somalia”, 13 June 2017

Human Rights Watch, “Somalia-Events of 2021” < for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (22 December 2014)

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)(i), 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, 8.2(2)(a), 8.2(2)(b), 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(4), 9.1(5), 9.1(6), 9.1(7), 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)

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

1 February 2023

Background

1. The Applicant is a 42-year-old man who was born in Somalia.

2. The Applicant and his family fled Somalia in 1990 and lived in a refugee camp in Kenya. On 8 September 1995, when he was 14 years old, he arrived in Australia with his mother, aunt, two older brothers, older sister and younger sister (R1/162) as a dependent on his mother’s Subclass 204 (Woman at Risk) visa (R1/42; R1/239; transcript/21).

3. Due to a legislative amendment the visa held by the Applicant was a Class BF transitional (Permanent) visa (Visa) which was granted to him on 13 August 1995 (R1/44; R1/239).

4. The Applicant has had a traumatic childhood. In addition to his being exposed to the civil war in Somalia, as a small child of approximately six or seven years of age he ran away from home after being physically abused by his father and sexually abused by an older brother on a regular basis (R1/83; 95). As a result, the Applicant left home and became homeless. The Applicant reconciled with his family in approximately 1990 before they fled Somalia for Kenya. The Applicant alleges that his father was a commanding officer in the Somali army when Mohamed Siad Barre was the President and that he disappeared and was presumed killed after the Barre government was overthrown.

5. Shortly after arriving in Australia, the Applicant left the family home again due to further sexual abuse by his older brother, having only completed a single year of school (year 10). He was homeless, began abusing illicit substances and first appeared in the Melbourne’s Children’s Court when he was 16 years old, less than two years after his arrival in Australia. The Applicant’s mother remarried and moved to Adelaide (R1/96).

6. The Applicant continued to offend in Melbourne, accruing an extensive criminal history over a 14-year period between 1997 and 2011. He appeared in court on 26 occasions and received 77 convictions, with 18 of those resulting in sentences of imprisonment.

7. There is a lengthy procedural history behind this application.

8. The Applicant’s Visa was mandatorily cancelled on 19 December 2014 (R1/37) on the basis that he did not pass the character test because he had a substantial criminal record and was serving a full-time sentence of imprisonment of 12 months or more. At this time, he was serving a total sentence of imprisonment of five years and six months for “armed robbery” and “attempt robbery”.

9. He received an interim notice of the cancellation of his Visa on 19 December 2014 but was not properly notified until 12 January 2015 (R1/44-47) (Cancellation Decision).

10. The application before me concerns a decision made on 4 March 2021 by a delegate of the Minister not to revoke the Cancellation Decision (Reviewable Decision) (R1/3).

11. The Applicant sought review of the Reviewable Decision in this Tribunal. However, on 28 May 2021, the Tribunal, differently constituted, affirmed the Reviewable Decision (RNVF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1522). I will refer to this previous Tribunal decision as RNVF No 1.

12. In RNVF No 1, the Tribunal summarised the procedural history as follows:

    3.On 19 December 2014, a delegate of the Minister (referred to as such or as ‘the Respondent’) cancelled RNVF’s visa on the basis that cancellation was mandatory under section 501(3A) of the Migration Act 1958 (‘the Act’). The delegate was satisfied that at that time RNVF did not pass the character test in the Act because he had a ‘substantial criminal record’ and was serving a sentence of full-time imprisonment. RNVF was formally notified of the cancellation of his visa on 12 January 2015.

    4.On 12 January 2015, RNVF sought revocation of the cancellation of his visa. On 22 July 2016, the Minister decided not to revoke the mandatory cancellation. On 21 July 2017, the Federal Court of Australia, by order of North J, set aside that decision and remitted the matter for determination according to law. On 19 June 2018, the Minister made a further decision which was quashed by the Federal Court of Australia, by order of Wheelahan J on 28 February 2019. The Court ordered that the Respondent determine, according to law, whether to revoke the mandatory cancellation decision. On 25 January 2020, the Respondent made a further decision not to revoke the cancellation of RNVF’s visa. That decision was set aside by the Federal Court of Australia, by order of Kerr J, and the matter was ordered to be determined according to law.

    5.This latest order led to a delegate of the Minister making a decision on 4 March 2021, that the delegate was not satisfied that RNVF passes the character test and nor was the delegate satisfied there is another reason why the original decision should be revoked.

    6.        It is this last decision of 4 March 2021, that is before the Tribunal for review.

13. The Applicant instigated proceedings in the Federal Court to appeal the Tribunal’s decision in RNVF No 1. On 2 December 2021 the Federal Court issued a writ of certiorari quashing that decision and issued a writ of mandamus to the Tribunal requiring it to determine the Applicant’s application for review according to law. The Court noted that:

    The first respondent [the Minister] conceded and the Court is satisfied that the second respondent [the Tribunal] fell into jurisdictional error by failing properly to consider the applicant’s representation that he would face prolonged or indefinite detention as another reason to revoke the cancellation.

14. Accordingly, I was constituted to hear and determine this remittal.

    Issues

15. The issues for my determination are:

    (a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act 1958 (Cth) (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

16. The hearing of this application was by videoconference on 14, 15 and 30 June and 1 July 2022.

17. The Applicant was represented by Mr B Overend instructed by Ms S Fisher of Victoria Legal Aid. The Respondent was represented by Mr J Barrington instructed by Ms L Butler of The Australian Government Solicitor.

18. The Applicant gave evidence on the first day of the hearing. So did clinical psychologist Ms Carla Lechner.  

19. On the second day of the hearing, the Applicant continued to give evidence. The Applicant’s mother also gave evidence, with the assistance of a Somali interpreter.

20. On the third day of the hearing the Applicant’s sisters, FS and IH gave evidence. GS, who became friends with the Applicant after he met him when visiting the detention centre gave evidence. So did, CR, a volunteer refugee support worker.

21. I heard closing submissions on the fourth day of the hearing.

22. There were extensive documents before me. Accordingly, I advised the parties that that they should specifically bring documents they intended to rely upon to my attention (transcript/3).

23. The parties relied upon the documents filed in the previous Tribunal proceedings in RNVF No 1. These were:

    (a)statement of the Applicant, lodged 30 April 2021 (Exhibit A1);

    (b)further statement of the Applicant, dated 17 May 2021 (Exhibit A2);

    (c)statement of the Applicant’s mother, lodged 30 April 2021 (Exhibit A3);

    (d)statement of the Applicant’s youngest sister, Ms FS, lodged 30 April 2021 (Exhibit A4);

    (e)report of Dr Jonathan Carne, dated 10 May 2021 (Exhibit A5);

    (f)joint statement of Dr GS and Mrs SS, lodged 30 April 2021 (Exhibit A6);

    (g)statement of Ms CR dated May 2021 (Exhibit A7);

    (h)Department of Home Affairs document headed “Ministerial detention intervention power” (Exhibit A8);

    (i)Department of Home Affairs document headed “Cases which are to be brought to my attention under section 197AB” (Exhibit A9);

    (j)Department of Home Affairs FOI Request – FA 21/04/01042 (Exhibit A10);

    (k)email from Respondent’s legal representative to Applicant’s legal representative, dated 30 April 2021 (Exhibit A11);

    (l)Department of Foreign Affairs and Trade Country Information Report Somalia, dated 13 June 2017 (DFAT Report) (Exhibit A12);

    (m)volume of G-documents, lodged on 18 May 2021 (Exhibit R1);

    (n)volume of supplementary G-documents, lodged on 18 May 2021, excluding pages 396 to 422, 505 to 516 and 517 to 620 (Exhibit R2);

    (o)statement of the Applicant’s older sister, Ms IH, lodged 30 April 2021 (Exhibit T1); and

    (p)Instruction letter to Dr Jonathan Carne, dated 15 April 2021 (Exhibit T2).

24. In addition to these documents, I admitted the following documents into evidence during the hearing:

    (a)statement of the Applicant dated 3 June 2022 (Exhibit A13);

    (b)report of Ms Lechner, dated 28 May 2022, comprising 12 pages (Exhibit A14);

    (c)statement of the Applicant’s younger sister, Ms FS, dated 8 June 2022 (Exhibit A15);

    (d)statement of the Applicant’s older sister, Ms IH, dated 9 June 2022 (Exhibit A16);

    (a)signed but undated statement of Dr GS and Mrs SS, lodged 8 June 2022 (Exhibit A17);

    (b)a further statement, unsigned, from Ms CR dated May 2022 (Exhibit A18);

    (c)IHMS [International Health and Medical Services] Health Record dated 13 December 2021 (Exhibit A19);

    (d)Supplementary G-Documents, indexed/ labelled G11 to G12, comprising pages 972-1173 filed on 1 April 2022 (Exhibit R3);

    (e)Amended Further Supplementary G-Documents, labelled 13-17, comprising pages 1174-1202 filed on 26 April 2022 (Exhibit R4); and

    (f)Document titled “Memorandum Regarding Assessment” dated 7 April 2022 (Exhibit T3).

25. The Applicant filed a Statement of Facts, Issues and Contentions (ASFIC) dated 13 May 2022. The Respondent filed a Statement of Facts, Issues and Contentions dated 3 June 2022 (RSFIC).

    Legislative Framework

    Migration Act

26. 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.

27. 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.)

28. 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.)

29. 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

30. 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.

31. Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.

32. On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made 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) 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) (Direction No 79).

33. 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.

34. 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.

1. 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 paragraph 9 where relevant (para 6 of Direction No 90).

2. 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.

3. 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

4. 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?

5. 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).

6. The Applicant conceded that he does not pass the character test (ASFIC, para [6]).

7. I agree that 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).

8. The Applicant has been sentenced to several terms of imprisonment of more than 12 months.

9. On 27 July 2011, the Applicant was convicted of “armed robbery” and “attempt robbery” in the Melbourne County Court. He was sentenced to 54 months imprisonment for the “armed robbery” offence and 30 months imprisonment for “attempt robbery”, with 18 months of that sentence to be served concurrently. This resulted in a total effective term of five years and six months imprisonment.

10. 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.

11. 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).

    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)

12. 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.

13. 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)

14. 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).

15. The Applicant has a lengthy history of offending conduct as a juvenile and an adult.

16. His National Police Certificate states the Applicant’s juvenile offending history to be as follows (R1/34-35):

Court	Court date	Offence	Court result
Melbourne Childrens Court	17 January 1997	Burglary (11 charges) Theft (7 charges) Theft of bicycle (4 charges) Go equipped to steal/cheat Theft from shop (shopsteal) Robbery/assault with intent to rob Fail to answer bail Theft from shop (shopsteal)	On all charges: Without conviction. Probation for 12 months. Without conviction. Probation for 12 months.
Broadmeadows Childrens Court	1 September 1997	Theft from shop (shopsteal) Minor possess liquor Minor consume liquor Assault in company Armed robbery (2 charges) Theft (3 charges) Assault with weapon Burglary (2 charges)	On all charges: Convicted. Youth supervision order for 12 months.
Melbourne Childrens Court	8 January 1998	Armed robbery Armed robbery/ assault with intent to rob Theft Attempt theft Theft from shop (Shop steal)	Youth training centre for 4 months. Youth training centre for 3 months concurrent. On each charge: Youth training centre for 7 days concurrent and concurrent.
Melbourne Childrens Court	2 July 1998	Place feet on furniture in carriage	Without conviction. Fined $100.
Preston Childrens Court	17 July 1998	Possess cannabis Use cannabis Unlawfully on premises/precinct	Proved. No further penalty imposed.
Broadmeadows Magistrates Court	4 November 1998	Theft from shop (shopsteal) Theft from motor vehicle (3 charges) Obtain property by deception (2 charges) Fail to answer bail Traffick heroin	On each charge: Youth training centre for 2 months. Youth training centre for 2 months.
Melbourne Magistrates Court	19 March 1999	Traffick heroin	Youth training centre for 106 days.
Melbourne Magistrates Court	13 July 1999	Theft from shop (shopsteal) Fail to answer bail Theft Use heroin	Convicted. Fined aggregate $400. Convicted. Fined aggregate $400.
Broadmeadows Magistrates Court	29 November 1999	Fail to answer bail Attempt theft Minor consume liquor Attempted theft from motor vehicle Use heroin Theft	Convicted. Fined aggregate $600. Convicted. Fined aggregate $600. Convicted. Fined aggregate $600. Convicted. Fined aggregate $600.

1. The Applicant’s National Police Certificate provides a summary of his adult criminal offending (R1/32-34):

Court	Court date	Offence	Result
Melbourne Magistrates Court	10 January 2000	Theft from shop (shopsteal) (2 charges) Use cannabis	Aggregate Imprisonment for 1 day concurrent.
Sunshine Magistrates Court	11 April 2000	Make threat to kill	Convicted. Fined $500.
Melbourne County Court	13 September 2000	Possess heroin	Imprisonment for 5 days.
Melbourne Magistrates Court	10 November 2000	Theft (3 charges)	Aggregate Imprisonment for 6 days concurrent.
Melbourne Magistrates Court	12 February 2001	Theft from shop (shopsteal) (2 charges) Go equipped to steal/cheat Beg alms Use heroin Possess drug of dependence – prescription drug	Aggregate Imprisonment for 50 days concurrent. Convicted. Adjourned to 1 June 2001. Convicted. Adjourned to 1 June 2001.
Sunshine Magistrates Court	8 March 2001	Robbery	Youth training centre for 6 months.
Sunshine Magistrates Court	10 April 2001	Theft Attempt to commit indictable offence Use heroin	Youth training centre for 2 months concurrent with present sentence. Youth training centre for 2 months. Proved. No further penalty imposed.
Melbourne Magistrates Court	5 September 2001	Beg alms Unlawful assault Fail to answer bail Throw missile injure/danger/damage prop[erty] Use offensive language/gesture – PTC Behave in an offensive manner Fail to produce valid ticket on request	Aggregate Imprisonment for 3 days concurrent. Convicted. Fined aggregate $500.
Melbourne Magistrates Court	25 September 2001	Burglary Theft (2 charges)	Aggregate imprisonment for 4 months concurrent. Pay compensation $2,650. Aggregate imprisonment for 4 months concurrent
Melbourne County Court	18 April 2002	Theft Armed robbery Armed robbery	Imprisonment for 1 month concurrent. Total imprisonment for 26 months. Imprisonment for 18 months. Imprisonment for 16 months. 8 months of sentence concurrent.
Melbourne Magistrates Court	3 June 2002	Behave in a riotous manner in public place	Imprisonment for 3 months concurrent.
Sunshine Magistrates Court	8 July 2003	Fail to answer bail Attempted burglary Recklessly cause injury Possess a dangerous article	Aggregate Imprisonment for 9 months concurrent. Aggregate Imprisonment for 9 months concurrent.
Melbourne County Court	5 December 2003	Intentionally cause serious injury	Imprisonment for 4 years and 6 months.
Melbourne County Court	4 June 2004	Rape	52.     Imprisonment for 8 years concurrent with sentence now serving.
Melbourne County Court	27 July 2011	Armed robbery Attempt robbery	Imprisonment for 54 months. 53.     Imprisonment for 30 months. 18 months of sentence concurrent. Total Imprisonment for 5 years and 6 months.
Melbourne Magistrates Court	3 August 2011	Burglary Theft	Aggregate Imprisonment for 7 months concurrent.

1. I will now outline some of the Applicant’s offences from the above table where the sentencing remarks are before me.

2. On 18 April 2002, the Applicant was sentenced after pleading guilty to two counts of armed robbery and one count of theft. These offences were committed on 9 August 2001 when the Applicant was 20 years of age. They included the Applicant being in possession of stolen sunglasses, as well as the Applicant and a co-offender robbing two other victims with a knife in public locations. The circumstances of the offending were described by the sentencing Judge as follows (R1/93):

   The offences occurred in the central area of the City of Melbourne on 9 August 2001. At about 8.40 on that evening you were arrested in the city and found in your possession were two pairs of sunglasses. When subsequently interviewed about them you admitted that they had been stolen. This is the subject of the offence of theft.

   Earlier that evening, at about 7.15 p.m. [victim 1, name omitted], a student at [name omitted] University, was walking in Elizabeth Street near Flinders Lane. He was approached by you and another male person. You produced a knife. He observed that knife. You demanded money from him and he tried to avoid you by changing direction, but you followed him. A little later you were joined by some other males. After some contact with [victim 1], he was escorted to a nearby automatic teller machine and a demand was made that he withdraw cash. He withdrew the sum of $150, of which you took $50. He then left the scene.

   A little later, at about 8.25 p.m., [victim 2, name omitted] was at the Parliament railway station toilets. As he entered he noticed two male persons washing their faces and taking toilet paper from the cubicles. One was yourself … There was a short greeting between [victim 2] and yourself. As [victim 2] turned to leave the toilet, you were in front of him, and impeded his exit. You turned around, revealing in your possession a knife which you gestured towards [victim 2], and said the words, “Give me your fucking money.”

   [Victim 2] was understandably concerned that he would be stabbed. He was asked how much he had, and replied, “$20”, and opened his wallet to show the contents. The $20 was taken off him and his cards were also taken, and you said, “Give me your fucking pin numbers or else I will give you this.” You then waved the knife more aggressively towards [victim 2]. He thought at this stage he was going to be stabbed. He gave you a false pin number for his savings card, and said that the other card was not his, and that he did not have the number for it. You looked at the cards and made a comment about that.

   You and [the co-offender] left the toilet, and on leaving you said to [the victim], “You stay here for half an hour”, and words to the effect, “If you come out, we’ll be waiting for you, and we’ll hunt you down.” [Victim 2] called police on his mobile telephone and said in his statement to police that he was visibly shaken by the incident, and understandably not likely to attend a public toilet again.

3. On 5 December 2003, the Applicant was sentenced in the County Court of Victoria after pleading guilty to the offence of “intentionally cause serious injury”. This offence was committed when the Applicant was 22 years of age. At the time of this offence the Applicant was on parole. The sentencing Judge described the circumstances of this offending as follows (R1/87):

   … the crime … arose in circumstances at a flat where you and a number of others were spending the night, consuming alcohol and drugs.

   It seems that you were, at the time, becoming increasingly paranoid as a result of drug use, fuelled by other problems affecting your reasoning capabilities and psychological state.

   The victim brushed past you on his way to the toilet and in your state of mind you thought he was making sexual advances to you. You retrieved a knife from another room and returned to kick the toilet door open and stabbed the victim three times, as he was facing away from you, twice in the back and once in the elbow.

4. On 4 June 2004, the Applicant was sentenced in the County Court of Victoria after being found guilty of rape after a jury trial. The rape occurred three and a half months before the “intentionally cause serious injury” offence. At the time of sentencing, the Applicant was 23 years old. The sentencing Judge described the circumstances of the rape offence as follows (R1/82-83):

   On the trial before me, your victim told the court that she and her boyfriend, in company with you and another friend, had spent most of the day drinking. The victim said she had an argument with her boyfriend, left the house and went to a rear yard. You eventually went into that area initially, so it was said, to console her. However, you rapidly proceeded to force your attentions upon her. You manhandled her in the course of attempting to have intercourse with her, bit her several times on the face and caused her other superficial injuries. These injuries were demonstrated in photographs shown to the jury. She struggled with you, but you eventually forced her onto the concrete surface of the yard and managed to lower her underclothing and effected some penetration of her vagina with your penis. The victim’s boyfriend, [name omitted], came upon you on top of [the victim] in the back yard. He kicked you about the head, and [the victim] was able to get on her feet and run away.

   Yours was quite brutal treatment of this woman, and your counsel made the point that the crime occurred in the context of a quite heavy drinking session, and you told police, when interviewed, that you have no recollection of the incident.

   In my view, your conduct immediately preceding the rape, where you indicated an awareness of the dispute between [the victim] and her boyfriend and purported to console her, negates the suggestion that you were so overcome by drink that your criminality is somehow lessened, and in considering submissions of this type, your prior criminal history is not without significance.

5. When he was 29 years of age, and within four weeks of being released on parole after serving seven years imprisonment for the rape offence, on 19 September 2010, the Applicant committed “attempt robbery” and “armed robbery”. He pled guilty to those offences and was sentenced in the County Court of Victoria on 27 July 2011. The sentencing Judge described the circumstances of the attempted robbery offence as follows (R1/58-59):

   Charge 1 … involved your approaching a lone young woman, [victim’s name omitted], as she walked home in North Melbourne on the evening of Sunday, 19 September 2010. [The victim], who was 18 years old at the time, had left her workplace, which was a restaurant, in Errol Street and was walking in Hawke Street when she noticed you standing alone across the street. A short time later she heard someone running from behind her. That was you. As she turned, you grabbed her by the shoulders and grabbed the necklace from around her neck, causing it to break. You then tried to grab her handbag from her shoulder.

   [The victim] threw a plastic container of food at you to try to ward you off. …

   … [the victim], in fear, then ran out into the middle of the road and you chased her, until you realised there was oncoming traffic turning into Hawke Street and you then left the scene …

1. The sentencing Judge then outlined the circumstances of the armed robbery offence which the Applicant committed with a co-offender (R1/59-60):

   An armed robbery was then committed upon a lone male victim who had the misfortune to be approached by the two of you as he walked home through the Carlton Gardens at about 10.50 pm on the same night. This was a short time after the events the subject of Charge 1. You two were acting as a team in the course of the armed robbery. [The victim] was talking on his mobile phone when the two of you approached and one of you, I cannot determine which, said, “Hey bro, just want to ask you something”. This was a pretext to you approaching him.

   You, [the Applicant’s co-offender], then grabbed [the victim] with your left hand and held a knife with your right hand to his throat. The knife had a blade about two to three cms in length and you demanded that he give you something. Your victim took out his mobile phone and wallet and gave them to you, [the Applicant] and you, [the Applicant], then searched [the victim], using your hands all over his body, including his legs and pockets. You, [the Applicant’s co-offender], told [the Applicant] to search your victim’s wallet to locate his address, saying to him “If you call the police or tell anyone, I know your address and I’ll kill your family.” Unsurprisingly, your victim was fearful throughout this whole transaction.

   You, [the Applicant], asked [the victim] how much money he had in the bank and asked for a PIN number to his account, and you, [the Applicant], then told [the Applicant’s co-offender] to let go of the victim with [the Applicant’s co-offender] responding in these terms: “You know why tonight you not get hurt. Because my bro said not to hurt you, so I didn’t hurt you. I know your address. If you try to call the police or tell anyone I’ll kill you, I’ll kill your family and go to your house.” While this was being said, you, [the Applicant’s co-offender] still had hold of your victim’s jumper and you were pushing and pulling it and you, [the Applicant], stood behind your victim at this time.

   All the cash in the victim’s wallet was removed, which amounted to $150, as well as his ANZ bankcard and, of course, the phone. You, [the Applicant], handed the wallet to [the Applicant’s co-offender], who gave it back to the victim. Your victim was then instructed by one of you to brush the wallet (implicitly to clear it of finger prints), and he was told to leave the gardens in the direction of Fitzroy, which he did.

   As can be seen in my short description of these events, you were acting jointly and as a team throughout this enterprise.

2. The Applicant’s parole was cancelled on 4 October 2010 because of this offending. At that time there was one year, nine months and 18 days left of the Applicant’s sentence which the Applicant was serving at the time of sentencing (R1/67).

3. At the hearing the Applicant was asked about whether the facts stated in a Victoria Police summary report described the offending for which he was convicted in the Sunshine Magistrates Court on 8 July 2003 of “recklessly cause injury”. The report states that on 23 July 2001 (R2/648):

   Btwn listed times victim & offender were both at the Sunshine Railway Station, platform #2. The offender entered the waiting room where the victim was seated and a brief conversation took place. The victim punched the offender to the head. The offender then produced a knife from his jacket pocket and stabbed the victim to the arm & back. The victim then ran off down the platform with the offender chasing still in possession of knife. The offender then left scene. Throwing knife onto the roof of shops in City … He was then arrested shortly after & the knife was recovered.

4. The Applicant was not exactly sure but thought it “more than likely” that these facts related to the 8 July 2003 conviction of “recklessly cause injury”, and that he probably pled guilty although he could not recall the facts that were read out in court (transcript/123-124 and 173). As there is some doubt about the facts upon which this conviction was based, and in the absence of any sentencing remarks, I have not relied upon this conviction.

5. As is evident from the above overview of the Applicant’s offending, the Applicant has committed a “sexual crime” of rape, and numerous offences involving violence including “intentionally cause serious injury” where he stabbed the victim with a knife three times.  Direction No 90 states that these types of crimes are “viewed very seriously” (para 8.1.1(1)(a)(i) of Direction No 90).

6. Although the Applicant’s two counts of armed robbery committed on 9 August 2001 only involved the threat of violence with a knife, the sentencing Judge described them as being serious (R1/98):

   Individually and collectively, the offences of armed robbery are serious matters, and offences of some gravity. They took place in public places, namely a major street and a public toilet at a major railway station. The people involved were threatened with a knife and put in fear. They were not injured, and I accept that it was not your intention to injure them, but they were exposed to a traumatic experience.

7. The extreme seriousness of the “intentionally cause serious injury” offence was highlighted by the sentencing Judge who commented that, “The facts in this case are very serious indeed” and that the use of a weapon and the Applicant being on parole were aggravating factors (R1/87). The seriousness is also highlighted by the serious injuries suffered by the victim whom the sentencing Judge stated had “suffered very considerably” because of the crime. The victim was taken to hospital in the ambulance and required surgery and a blood transfusion. Further: “There was fluid in the left chest and abdomen and he receive[d] a left haemothorax and ruptured spleen as a result of [the Applicant’s] attack” (R1/87).

8. The Applicant’s crime of rape was described by the sentencing Judge as, “a serious instance of the crime of rape”, and as is set out in the sentencing remarks above, the Applicant “manhandled” the victim and bit her several times on the face (R1/83).

9. The sentencing Judge also described the attempted robbery and armed robbery offences for which he was sentenced on 27 July 2011 as serious offences (R1/76). The seriousness of the attempted robbery offence was also highlighted by the impact the offence had on the 18-year-old female victim who experienced emotional trauma after the event which had detrimentally impacted her life. In her victim impact statement quoted in the sentencing remarks, the victim stated (R1/62):

   The effect of emotional trauma is still ongoing. Gave up part-time work, as cannot walk the streets at night. Find it hard to sleep. Constant fear of people of African descent in any situation. Self-esteem affected, which has now impacted on career as a hairdresser as well as relationships with males. Look for means such as alcohol to dull the pain.

   …

   Cannot get the image of the attacker out of my mind, which has now affected everyday tasks. From a bubbly social person I’ve now become withdrawn, introverted and very non-trusting.

10. Some of the Applicant’s offences can be regarded as less serious such as numerous theft convictions, convictions associated with behaving offensively in public and begging, and failing to answer bail. He has numerous drug convictions including for using and possessing heroin. This Tribunal has often regarded drug offences as being very serious because of the harms they cause to society and the crimes they promote, although I note that most of the Applicant’s drug convictions seem to be associated with his personal use and they are likely to be at the lower level of seriousness for that type of offending.

11. The seriousness of some of the Applicant’s offending is highlighted by the substantial prison sentences he has received, including numerous sentences for more than 12 months, which resulted in the Applicant spending most of his adult years in prison (para 8.1.1(1)(c) of Direction No 90).

    (a)For the two counts of armed robbery and the theft offence that occurred on 9 August 2001, the Applicant was sentenced to a head sentence of 26 months imprisonment, with a 12-month period before he was eligible for parole (R1/103).

    (b)The Applicant was sentenced to four and a half years imprisonment for the offence of “intentionally cause serious injury” and was required to serve two and a half years before being eligible for parole (R1/90-91).

    (c)The Applicant was sentenced to eight years imprisonment for the rape offence, with a minimum sentence of six years before he was eligible for parole (R1/85).

    (d)He was sentenced to two and a half years for the attempted robbery offence, 12 months of which was to be served concurrently with a four-and-a-half-year term for the armed robbery offence (R1/78). This amounted to a total effective sentence of five and a half years imprisonment, with three and a half years having to be served before becoming eligible for parole.  

12. He also has some very short sentences such as aggregate imprisonment for one day for two charges of “theft from shop (shopsteal)” and “use cannabis” on 10 January 2000; five days for “possess heroin” on 13 September 2000; aggregate imprisonment for 6 days concurrent for three charges of “theft”; and aggregate imprisonment for three days concurrent for “beg alms”, “unlawful assault”, “fail to answer bail”, “throw missile” and “injure/danger/damage property” on 5 September 2001. He also has fines, for example on 11 April 2000 for “make threat to kill” and on 5 September 2001 for “use offensive language/gesture – PTC”, “behave in an offensive manner” and “fail to produce valid ticket on request”. These very short sentences and fines indicate that the sentencing Judges viewed this offending as being of a less serious nature. 

13. The Applicant is only 42 years of age. At the time of his first adult sentence of imprisonment, he was only 20 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. The successive and substantial periods of imprisonment he received whilst in his 20s show that the courts regarded the offending as being serious enough to warrant a custodial sentence. The progression of offending and sentences also shows that the Applicant did not learn from his experiences and that he was not deterred from further offending by prison sentences. Indeed, within four weeks of his release from prison on parole after his rape sentence, he committed the attempted armed robbery and armed robbery offences.

14. 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). The Applicant has a lengthy offending history over a period of approximately 14 years as an adult and a juvenile (1997 to 2011).  Between January 1997 and November 1999, the Applicant appeared in Court on nine occasions for offences and conduct committed as a juvenile. This offending included alcohol and drug offences (such as trafficking heroin and cannabis possession), multiple dishonesty charges including armed robbery, burglary, theft charges and violent offending including assault with a weapon and assault with intent to rob. Between January 2000 and August 2011, the Applicant appeared in court on a further 17 occasions for offending he committed as an adult. I find that the Applicant’s offending is frequent, despite his having spent substantial periods of time in prison. He has often reoffended shortly after being released from prison, including committing “rape”, “intentionally cause serious injury” and “armed robbery” when he was on parole. The Applicant has committed similar offences throughout his criminal history. However, his 2003 conviction for “intentionally cause serious injury” and his 2004 conviction for “rape” are his most serious. I therefore find there is a slight trend of increasing seriousness.    

15. I also consider that there would be a cumulative effect of repeat offending given the number of offences committed, numerous court attendances and custodial sentences of imprisonment spanning many years. 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).  

16. There is no evidence that the Applicant has provided any false or misleading information to the Department of Immigration and Border Protection (para 8.1.1(1)(f) of Direction No 90).

17. Paragraph 8.1.1(1)(g) of Direction No 90, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. A 2012 International Treaties Obligation Assessment (ITOA) regarding the Applicant states (R1/106):

    A Notice of Intention to Consider Cancellation (NOICC) of [the Applicant’s] visa was first sent to him on 28 October 2002 … ; however, due to his reoffending, processing was suspended and did not resume until 2008. He was sent a second NOICC on 13 November 2009 … , his response to which was received on 28 January 2010 …

18. At the hearing the Applicant agreed that he received a NOICC of his visa while he was in prison in 2002. He said that he filled out documents in response but never received a response (transcript/135). However, after receiving this warning, the Applicant committed the offence of “rape” on 14 December 2002 (R2/384) and “intentionally cause serious injury” on 31 March 2003 or 1 April 2003 (R1/82; R2/452).

19. He also received the second NOICC, as evidenced by his submission of a letter to the Department dated 19 December 2009 (R1/158) and a personal details form dated 12 January 2010 (R1/151). In this letter the Applicant stated that if he was sent back to Somalia, he would be killed, and that he was “willing to do and go to any lengths to change [his] offending behaviour” (R1/161). Despite this apparent appreciation that, due to his offending, he was facing being sent back to a country where he would be killed, he was released on parole on 16 August 2010, and committed “attempt robbery” and “armed robbery” on 19 September 2010, as well as “burglary” and “theft” sometime in September 2010 (R2/707) (which resulted in convictions on 3 August 2011).  

20. In summary, the Applicant’s offences range from those of a less serious nature such through to very serious offences including rape. His offending has also involved knives being used to threaten male and female victims who were innocent members of the public. In the case of the “intentionally cause serious injury” offence, a knife was used to stab his victim. The seriousness of several of the Applicant’s offences is also reflected in the sentencing comments I have outlined above, and the lengthy sentences of imprisonment imposed despite the Applicant being a very young man in his 20s at the time. The Applicant’s offending is frequent, and he has not been deterred by imprisonment and being the subject of parole orders. There is a slight overall trend of increasing seriousness as demonstrated by the 2003 “intentionally cause serious injury” conviction and the 2004 “rape” conviction. Additionally, those offences, which are very serious, were committed after the Applicant received a NOICC. He committed further robbery, burglary and theft offences after receiving a second NOICC, despite his stated fear that he would be returned to Somalia and killed.   

21. For these, and the other reasons that I have outlined above, I find that paragraph 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs strongly 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)

22. 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.

23. 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)

24. 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 he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).

25. If the Applicant was to commit further violent offences, or other offences such as armed robberies involving the use of knives, the harms that could result to members of the Australian community are potentially very serious and could include psychological harm, serious physical injury, impairment, loss of life and possibly psychological harm.  

26. Similarly, if the Applicant was to commit rape, the harms that could result to members of the Australian community are potentially very serious and could include psychological harm and physical injuries.

27. Dishonesty offences involving theft can cause psychological distress to victims and financial harms in the form of increased costs to the community including increased insurance premiums.

28. The nature of the harm if the Applicant were to commit further drug offences is varied, they are generally, less serious than violent offences. Purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.

    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)

29. Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he 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 (sub-paras 8.1.2(2)(b)(i) and (ii) of Direction No 90).

30. As I have outlined above, the Applicant has a lengthy and frequent criminal history over a period of 14 years which commenced when he was a juvenile and extended into his adulthood. Apart from the “rape” offence, he has continued to offend with numerous similar offences involving drugs, theft, and robbery despite receiving lengthy prison sentences. He has recommenced his drug use and has reoffended shortly after being released from prison and whilst on parole. As I detailed above, he reoffended after receiving warning that his Visa was being considered for cancellation. The Applicant’s history of offending suggests there is some likelihood of future reoffending.

1. There has been a substantial break of 12 years in the Applicant’s offending due to his being in prison and immigration detention. The Applicant has been in immigration detention since 6 February 2015 (R1/242). His last conviction for theft was on 3 August 2011. At that time the Applicant would have been 30 years of age. He is now 42 years of age. Although the break in his offending was due to his being in custody or detention and has been untested in the community, it is still a substantial break. He has also had a difficult time in detention where he has self-harmed and has been assaulted twice. He appreciates the reality of the situation he is in which is that he faces permanent separation from his family in Australia. He is now showing more than the limited insight that he showed at the 27 July 2011 sentencing where the sentencing Judge accepted that he had “a level of remorse” (R1/64) (underlining in original). The following statement from the Applicant suggests that he has matured over the last 12 years (A1/ paras [6]-[8]):

   I feel like I am totally different person now, compared to when I used to get in trouble with the law. I treat people completely differently and I feel like I face the world differently. I used to be very withdrawn. I now think about what I say. I don’t swear. I look at these small things about respect other people. It is still a work in progress, but I believe I have changed fundamentally. People who have known me a long time don’t recognise me, physically or in the way I speak to them as well. I am actually half the weight I was in prison and feel healthy.

   I feel like I have matured. No one asked me to do it. I just made up my mind to do it. I got used to fighting back and protecting myself with using drugs but not now. I just tried to do the opposite of what I used to do in the past when my life had fallen apart. This is a very deliberate way of facing things.

   One of the big drivers was that I missed my mum. I also want to see my sisters. I also want to see my nieces and nephews. I really couldn’t bear being in this place if my mother died.

2. The Applicant’s mother also believed that he has matured. In her statement (A3/ para [11]), she stated:

   I believe [the Applicant] has changed. In his life he has had some hard lessons to learn and I think he has done that. I believe he has grown up and is more at peace. He has realised that what he was doing to himself and doing to his family was not good. Five years ago [the Applicant] would never have said to all our family that he wanted to openly apologise for what he had done. Now, he has managed this which is a good sign.

3. Similarly, the Applicant’s sister, FS, stated (A4/ para [6]:

   I know in the beginning [the Applicant] was upset and angry with himself. He has talked about wanting to give up before because he felt like he didn’t have anyone stop. But he has changed. He is now more relaxed and I think he has matured and has realised that he has made a lot of mistakes. Essentially [the Applicant] has spent a lifetime within 4 walls. He has talked about his desire to study and I could certainly initiate that for him as I know many people in that system …

4. The Applicant has a history of childhood trauma. He started to run away from home in Somalia from the age of approximately six or seven years due to physical abuse from his father. His father used belts and cable wires on him, beat him, electrocuted him, and would lock him up for several days at a time without food. On one occasion his father put a gun in his mouth and threatened to kill him. The Applicant believed that he was going to be killed (R1/182; transcript/17). The Applicant tried to tell his father about the sexual abuse from his older brother but was accused of lying and of being possessed.

5. The sexual abuse by his older brother continued when the Applicant came to Australia. From approximately 14 years of age, the Applicant ran away from home and lived on the streets to escape the sexual abuse. He turned to drugs to numb the pain of this abuse and his childhood trauma and interacted with negative peers. There is a very strong correlation between the Applicant’s drug use and his offending. His drug habit was serious and longstanding. He started using cannabis and alcohol in a youth hostel that he was ordered to attend because of committing offences as a juvenile. He started injecting heroin after six months of using it which developed into a daily habit (transcript/24). He also abused prescription medications (transcript/25). In his early 20s, the Applicant took amphetamines which triggered his underlying paranoia (transcript/26). Many of his offences were committed whilst the Applicant was under the influence of drugs and/or alcohol and/or to fund his addiction which appears to have been a primary driver of his offending. In a written statement the Applicant said (A1/ para [12]-[13]):

   While I am in no way trying to excuse my offending, most and certainly when I was young, it was related to my heroin use and the desperation that causes. I took drugs to numb my own pain, but I don’t need to do that anymore. I am not naïve and obviously I am in detention right now. Living in the community will have different pressures which I won’t be used to right now. I know I will have to meet it head-on but I believe I will be able to do that in Adelaide and have developed ways to deal with my problems. I know it is about choice. I try to be conscious about how I act. I know that using drugs has made my life miserable and I have hurt other people. I am absolutely committed to a different life and actually, for the first time think it is possible.

   Illegal drugs are easy to get in immigration detention but despite that, and also despite detention being a very stressful environment for me, I have not gone back to drug use to numb my pain. I think this is some proof that I am able to deal with real world pressures. …

6. In a subsequent statement dated 17 May 2021, the Applicant said (A2/ paras [4]-[5]):

   I maintain my statement that I have not gone back to drug use to numb my pain. As I have said already, my very lengthy time in detention has brought about a gradual but definite change in my outlook on life.

   I am aware that in his written arguments, their Minister has pointed to IHMS [International Health and Medical Services] note in which it is asserted that I apparently said I had some ice sometime in 2019. That assertion is not correct. If it was correct, I would have been punished in immigration detention for it, because taking illegal drugs is not allowed in detention. However, I have never received any punishment for it, or even been questioned about it.

7. The IHMS note in question is dated 2 March 2019 (R2/867). It states, in part, that the Applicant, “says he is no longer using other drugs, but says he has previously used cannabis and ice since being at Villawood [Immigration Detention Centre]. Last time he used ice was approx. 3 months ago and he smoked it”. The Applicant was also asked about this note at the hearing. His evidence was that he was complaining to the nurse about the conditions he was living in because he was trying to make a case to be moved to another unit. He had been subjected to threats from other detainees around that time. He said he had complained to the nurse about the cramped conditions and his passively having ingested drugs from other detainees who were smoking them, and that he was physically assaulted a week or two afterwards. The Applicant’s evidence was that (transcript/50):

   So for them to say that, to write that in the report, personally, I find that 100 per cent inaccurate, because what she - what I asked her to write down, because I was trying to, yes, compile a case to get out of that unit. And that’s a condemned place that has literally been torn down now. You can’t even breathe in there. everyone is smoking cigarettes in there or whatever, whether it’s marijuana, or whether it’s ice, whatever they wondered in smoking there. So if I smoked, if I’m sleeping and that’s the guy next to me and he’s smoking, I’m smoking with him, because there’s no fresh air whatsoever. The windows are all barred. You can’t actually open the windows or anything. So we’re all smoking whatever anyone else is smoking. So - but the lady obviously misunderstood and she wrote it different, like I’m smoking it so. But that’s not what I meant. If I smoked drugs, I will say I smoked drugs. … Because that is my lapse right there, and there’s nothing wrong with being honest. But I didn’t literally physically smoked drugs myself, because this was when I was literally dying, and I got assaulted a week or two after that happened.

8. My impression was that the Applicant was being honest and the conditions he describes are consistent with the other evidence that he feared being physically assaulted due to threats which ended up coming to fruition when the Applicant was seriously assaulted. Accordingly, I find that the Applicant has had a lengthy period of abstinence from drugs and alcohol in detention which will assist him to remain abstinent if he is released into the community.

9. I also note that, with the exception of three minor incidents, the Applicant has been well-behaved in immigration detention. There was an incident report stating that a fire alarm went off in a room the Applicant shared with another detainee because they were smoking in April 2019 (R3/1162); an incident in December 2021 where the Applicant and another detainee started taking positions to fight with one another (R1/1161); and another note dated 24 January 2022 about the Applicant and two other detainees complaining about the quality of the food and becoming abusive and aggressive (R3/1160). Given the difficulties that the Applicant has experienced in detention, and despite immigration detention being a more controlled environment than being in the community unsupervised, his otherwise good behaviour in immigration detention is positive.   

10. The Applicant has been on a methadone program for many years, but I am not of the view that should be treated negatively. In his statement dated 17 May 2021, the Applicant explained (A2/ para [6]-[7]):

    I am still taking methadone. However, I am on the lowest dose possible.

    I went on the methadone program approximately two years before I finished my prison term. I recall that I was initially on 100 mg per day in initial stages. I was still on 100 mg when I first came to detention. This dose has been reduced drastically over time. I recall that up until recently I had been on a 6 mg dose for around 2 years. I briefly went down to 4 mg, but this was increased back up to 6 mg because of my back pain I was experiencing following the assault on me by another detainee while under the care of the detention centre. I have been on 3 mg for the past couple of weeks. Most of the time I get my dose every second day which is permitted and intentional. I have been schooling my own body to get used to this. My plan is to stay on methadone for the next 2-3 months and I have discussed that with the doctor in detention. Certainly, if I am released, I would continue to do that because I think this is a good precautionary thing to do.

11. The Applicant demonstrated insight into his drug use and that being on methadone could assist him to remain abstinent. He described methadone as a precautionary measure to help him reintegrate and abstain from drugs if he is released into the community, that would also give him access to help and support from medical staff if he needed it. He stated (transcript/112): 

    To be quite frank I’ve been a drug user in the past and once a drug user there’s always going to be that temptation, and I’ll never stop being vigilant in that sense that I don’t want to go near that stuff anymore. So that being said, the methadone, I don’t really need it for drugs for right now, you know, but I will be vigilant, and this is just like a mini precaution so then if anything happens I’ve got the right support already, and the steps to actually go through it to deal with it in the proper manner. I don’t want to be unprepared anymore, so I’d run with the methadone program as soon as I was released, if I was released that is, then I will have the nurses and the doctors who I can also ask for help and support. So this is all just part of the plan, to be on a small dose for a minimum amount of time, but the drug problem, I have not had that drug addiction. My body has had drug addiction, but I have not had drugs myself and gone and purchased drugs or anything like that.

12. I find that the Applicant has insight and has taken responsibility for his methadone treatment. He is willing to follow the advice of doctors and ask for help if required. This will assist him to remain abstinent from drugs if he is released into the Australian community.

13. The Applicant also has a plan in place and supports in place to assist him if he is released into the community. In a statement dated 3 June 2022, the Applicant stated (A13/ second para [3]):

    My biggest wish is to live with my family in Adelaide. I have been made aware of the supports available to people like me and am deeply grateful for the various offers of assistance to make it as easy as possible to access these services. I fully appreciate that it will be necessary for me to put in the work and effort to deal with my mental health and it will be a good thing to have that ongoing professional support. I understand that it is possible to claim up to 20 sessions with a mental health professional each year, starting off with six sessions on referral from a general practitioner. Up to now, I have found it difficult to deal with health workers in detention as there is no way you can build a trusting relationship with nursing and medical staff in that environment.

14. The Applicant’s plan includes to live with his mother in Adelaide, access counselling and to try to reduce his methadone gradually over a three-month period (transcript/113). The Applicant has reconnected with his mother and sisters who are willing to offer him emotional and practical support if he is released into the community. The Applicant’s sister, FS, is a case worker for people with mental health issues and disabilities (A15). She is strongly supportive of the Applicant and due to her experience and connections she is willing to assist him to access mental health support and social services such as employment services (A4/ para [5]). Her evidence was that she would initiate the appointments and physically go with the Applicant to his appointments. She has also identified a general practitioner who is culturally sensitive and aware of trauma issues that the Applicant could access straight away, and that she would assist the Applicant with his general practitioner to prepare a care plan for an initial 10 sessions. FS confirmed that she had discussed these plans with the Applicant. FS also stated that she could connect the Applicant with people she knew in employment services to help him find employment, including agencies that are willing to work with persons who have convictions. FS is also willing to offer the Applicant accommodation in her home, where he will have his own room if he needs it (transcript/200-203).

15. The Applicant’s older sister, IH is also very supportive of him. She is a disability support worker. She is also willing to offer him accommodation. She is willing to help him enrol in a training course and to get into a routine. Her evidence was that she knows it will not be easy, but the Applicant can rely on her (A16). At the hearing she stated (transcript/220):

    Of course, of course, we can support him, definitely 100 per cent with anything, like whether it’s like looking for work or go to do some courses for his schooling, get back to the community for help for doctors, any support that he needs we are able to give him and assist with him”.

16. The Applicant’s family members are aware that he has committed offences and that he has spent time in prison, but they do not appear to have extensive details about his offending. His sister, IH, stated that, “I do understand that he has been convicted of very serious offences over a long period and also that he had a significant drug problem” (A16/ para [5]). His mother stated that the Applicant has not wanted to talk about his offending because he is ashamed. She stated that, “I know he has been in prison and I know he has done some serious things. I also realised that he has used drugs” (A3/ para [7]). FS stated (A4/ para [3]):

    [The Applicant] never really talked about his offending because he’s embarrassed. None of us are judging him but he keeps it away from us. He has talked to me about the drug abuse though. I know that this has been controlled and helped [by] medication (methadone).

17. At the hearing FS acknowledged that she knew about the rape conviction, but that her mother probably did not know about it (transcript/209). Although, IH’s evidence was that she had spoken to her mother about the rape conviction (transcript/225), when the Applicant’s mother gave evidence at the hearing, she stated that she had never heard of that conviction (transcript/184).

18. I find that the Applicant has very strong support from both his sisters and from his mother. They are aware that he has committed serious offences and that he had a drug problem. I do not think that their support is in any way diminished by their not knowing precise details of all of the Applicant’s offending and further details about his drug use. The support they are willing to offer is detailed, comprehensive and insightful. They are pro-social persons who are willing to give the Applicant unqualified support. This support is likely to assist him to reintegrate into the Australian community and will reduce the risk of his reoffending.

19. The Applicant also has support from GS and SS who became friends with the Applicant in 2015 after meeting and visiting him during weekly volunteer visits to the Villawood Immigration Detention Centre in Melbourne. SS was a senior schoolteacher and GS has a doctorate in agricultural science, a post graduate degree in theology and a Certificate IV in adult learning and is now retired. They are now living in Adelaide and are willing to provide the Applicant with support. In a joint statement they described the support they could give to the Applicant (A17/ paras [4]-[5]):

    We now live in Victor Harbor, which is about one hour’s drive from Adelaide. If [the Applicant] were released from detention, we would certainly plan to see him frequently. He could stay with us whenever he wanted to visit. We have just participated in formation of a refugee support group in Victor Harbor, with the encouragement of the Mayor and our local Federal Member, so there will certainly be others who could provide support and assistance. We originate from SA [South Australia] and have a lot of contacts in Adelaide, and we are realising that there are a number of people and organisations who would be keen to help someone in [the Applicant’s] situation.

    We are confident that [the Applicant] will do well at making a fresh start and living as an honourable member of society. When we first knew him, he expressed a sense of despair. He felt trapped in a situation for which he certainly felt responsible, but he couldn’t see a way out. Now, he has a much more of positive outlook and a strong determination not to go back. We believe Adelaide and the support of his family will provide him with the opportunity he craves.

20. GS gave evidence at the hearing that he would be willing to provide the Applicant with accommodation in their spare bedroom if he needed it. He also described having “networks” that could assist the Applicant including a refugee support group and links to other organisations and a migration agent who can assist with accessing social services such as Centrelink and Medicare. GS also identified that he had networks that could help the Applicant access psychological counselling, learning to drive a car and get a licence, and help with practical matters such as finding work (transcript/238-239). The Applicant has a relationship of trust and confidence with GS and SS. I found GS to be a sincere and genuine person who wants to help the Applicant reintegrate into the community and succeed. The support of GS and SS is likely to be invaluable to the Applicant in helping him reintegrate into the Australian community, to remain drug-free and not to reoffend.

1. The medical records before me do not explain what the ongoing health issues associated with the assaults are. I accept that these assaults are likely to have had a detrimental impact on the Applicant’s mental health. I note that at the time of the hearing the Applicant was suffering discomfort and pain from the most recent assault (transcript/13).

2. The Applicant’s physical and mental health issues are likely to be significant impediments if he is removed to Somalia. The DFAT country information report (A12/ [2.11]) states that: “In practice, there is no functioning national health system and access to healthcare services is severely limited”. It is therefore likely that it will be difficult or impossible for him to obtain medication and to access medical care if he is returned to Somalia. His mental and physical health are likely to deteriorate if he is returned to Somalia. He is unlikely to be able to access methadone, which may place him at risk of relapsing to drug use.

3. Additionally, the Applicant left Somalia when he was approximately 10 or 11 years of age and lived in a refugee camp in Kenya for three years. He came to Australia as a 14-year-old. The Applicant has been absent from Somalia for approximately 32 years. When he was a child in Somalia, he frequently lived on the streets due to the abuse he suffered from his father and older brother at home. If returned, he would be separated from his family in Australia. He has no friends or relatives, and no connection to any clan that he could rely upon for support if he was returned there. He no longer knows the Somali language fluently and is not familiar with customs and norms (A13/ para [3]). Somalia is an unfamiliar country, whilst also being a place where the Applicant endured childhood trauma, and where he will face significant language and cultural barriers. These impediments and his lack of work experience and skills are also likely to make it very difficult for him to find employment and to subsist if he was returned there. The DFAT report states that “Deporting governments must give each deportee $10,000 USD to restart their lives in Somalia” (A12/ [5.16]), however there is no other evidence that he would be able to access any economic support if he were returned. 

4. I find that there are likely to be very substantial and insurmountable impediments, both in the short and long term, that the Applicant would face establishing himself in Somalia, maintaining basic living standards and subsisting.

5. However, as I have discussed above, the Applicant is likely to be a person to whom non-refoulement obligations are owed, and while any such obligations continue, he cannot be removed to Somalia.

6. Additionally, the DFAT country information report states (A12/ para [5.16]) that:

   The Government receives failed asylum seekers on a case-by-case basis where they meet the following criteria:

   -They are Somali nationals, originating from within the borders of the Federal Republic of Somalia

   -A risk assessment is completed for every candidate for repatriation by the country they are being deported from and by the relevant Somali authorities

   -All returnees must have a fixed address in an accessible part of Somalia

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

7. The DFAT country information report continues to state (at [5.17]) that:

   In practice, Somalia has a large diaspora in the West and there are regular flows of Somalis returning to visit, work or invest in Somalia. DFAT understands that exit and entry procedures in Somalia are not technologically advanced. A failed asylum seeker would not necessarily be identifiable at a border crossing and there is no central database that monitors whether an individual had departed illegally. DFAT understands that when a returns process is arranged by another country or organisation, the returnee is cleared by Somalia’s Department of Immigration prior to their arrival at Mogadishu airport and the returnee is not questioned by authorities upon arrival.

8. Despite this qualification, even if the Applicant was found not to be owed non-refoulement obligations and could be returned, there is some doubt as to whether Somalia would accept the return of the Applicant given his significant mental health issues. 

9. Despite these impediments being very significant, it is unlikely that the Applicant will be returned to Somalia due to the existence of non-refoulement obligations. I therefore find that it is appropriate to weigh this consideration slightly in the favour of revocation of the Cancellation Decision.

   Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)

10. 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.

11. 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). Consequently, I give this other consideration neutral weight.

    Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)

12. 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.

13. 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

14. 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.

15. 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.

16. As I mentioned above, the Applicant arrived in Australia as a teenager when he was 14 years of age. He has therefore resided in Australia for approximately 28 years comprising most of his teenage years and all his adult years.  

17. Less weight should be given to the Applicant’s time in Australia because he started offending shortly after arriving. He arrived in Australia on 8 September 1995 and first appeared in court on a range of charges on 17 January 1997. He was put on 12 months’ probation, but no conviction was recorded. His first convictions were recorded on 1 September 1997 for several offences: “Theft from shop (shopsteal)”; “Minor possess liquor”; “Minor consume liquor”; “Assault in company”; “Armed robbery (2 charges)”; “Theft (3 charges)”; “Assault with weapon”; “Burglary (2 charges)” (R1/35).

18. The Applicant does not appear to have made any positive contributions to the community such as community or volunteer work, whereby I can give some weight to the length of time he has spent in Australia. He worked as a cook for two and a half months in 1998, but otherwise has minimal work experience and has spent substantial periods of his adult life in prison, followed by the last eight years in immigration detention.   

19. The Applicant’s family members, being his mother, three brothers, two sisters, and seven nieces and nephews reside in Australia. He does not have any family, friends, or clan connections in Somalia. The Applicant has reconnected with and has strong support from his mother and two sisters, FS and IH, who gave evidence at the hearing.

20. The Applicant’s mother is an Australian citizen. His mother said she would feel very happy if the Applicant returned to live with her. She stated that, “I am a mother who hasn’t seen her child for so many years and, you know, for him to be back again living a normal life is something that would make me very happy” (transcript/190). When asked how it would impact her if he was returned to Somalia, the Applicant’s mother stated (transcript/190):

    … how that is going to impact me is that as if he was sentenced to death penalty because Somalia is where we fled. That is where my husband was kidnapped, and to this day nobody knows where he is, dead or alive, and so he knows nobody from there. It’s not safe. If he was to be returned to Somalia I would just treat that as if he was killed and he’s not alive anymore. That’s what it would mean.

21. In her written statement she also said she was afraid that if the Applicant was returned to Somalia that he would not be alive for very long (A3, para [9]).

22. In his evidence the Applicant suggested that he was needed to help his mother because his other siblings were too busy with their jobs and children to assist her (transcript/171). However, when asked about her health at the hearing the Applicant’s mother stated, “I’m very well. One hundred per cent” and that she did not need help if she needed to go to the doctor (transcript/189). In her evidence IH said that their mother has high blood pressure and sometimes complains about her legs but that she and FS help their mother if she needs it (transcript/219). I therefore do not accept that there would be any practical detriment to the Applicant’s mother if he was not released into the Australian community because she is fairly independent, and her daughters are available to assist her if needed. However, she is likely to suffer emotional detriment if he is removed from Australia.  

23. The Applicant’s sister, FS also gave evidence that if he were returned to Somalia she would worry because Somalia was not safe, and she worried that his life would be at risk. She also felt that it would be “inhumane” if the Applicant was indefinitely detained and that it would be “very sad” for her children. She did not think it would be appropriate for the children to visit the Applicant in detention (transcript/205). In a written statement dated 8 June 2022, FS expressed her support for the Applicant. She stated that she and her siblings were willing to help the Applicant financially. She further stated that, “I truly hope that he does get released and we’re willing to do whatever it takes to enable that to happen” (A15, para [6]).    

24. The Applicant’s other sister, IH, gave evidence at the hearing that she reconnected with him when he was in prison and currently speaks to him three or four times a week. She described being very close to the Applicant and how much she missed him being at family functions and meeting her children (transcript/216-217). IH also expressed concern for the Applicant’s safety if he was returned to Somalia. She further stated (transcript/224): “We really miss him, and we really miss him and we really love our brother. And, his mum, she miss her son proper”.

25. The Applicant has two adult nephews and an adult niece (R1/155). His evidence was that (transcript/170):

    Every time I talk to them they’re asking me - they’re asking when is uncle coming home. So, like, some of them have already met me and already know me real well. It’s the fact that I haven’t actually met the younger one that that doesn’t sit well with me because I miss all my family. So, at the end of the day I want to do the best I can for them. And I do love them.

26. He said that D, an 18-year-old niece, and two of his minor nieces had visited him in immigration detention (transcript/170). His adult and minor nieces and nephews are evidence of his family ties. His adult nephews and niece who have met the Applicant may suffer some emotional detriment if he is removed from Australia. 

27. The Applicant also has support from GS and SS who became friendly with him after undertaking volunteer weekly visits to Villawood Immigration Detention Centre. They now live in Adelaide where the Applicant will live if he is released into the community, and they plan to see him frequently and offer him support to make a fresh start, including involving him in a refugee support group they helped to establish (A6, paras [2] and [4]). This friendship, although formed in immigration detention, is indicative to further ties to the community.  

28. Overall, the Applicant has strong ties to Australia because of the length of time he has lived in Australia, although that weight is diminished slightly because he started offending shortly after arriving in Australia, and there are no positive contributions by way of a counterbalance. Nevertheless, all his immediate family members reside in Australia and his mother and sisters (FS and IH) would suffer emotional detriment if he was returned to Somalia or indefinitely detained.

29. 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

30. 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.

31. This consideration does not arise on the material before me and is therefore not relevant. 

    A failure of the State of Victoria to apply for citizenship on the Applicant’s behalf

32. In a letter dated 18 January 2016, the Applicant’s legal representatives made a very detailed submission to the effect that he was in the care of the State of Victoria for most of his adolescence and that during that time the State should have taken steps to apply for citizenship on his behalf because it is “incontrovertible that applying for Australian citizenship is in the best interests of a child from a refugee background. The State’s failure, we would argue, bears all the hallmarks of negligence” (R1/134-135).

33. The Applicant’s legal representatives submitted that this was relevant to the consideration of “expectations of the Australian community”. However, as I noted in that section above, the relevant paragraphs of Direction No 90 concerning the community’s expectations do not allow for speculation as to what the community might think if they are informed of an applicant’s particular circumstances. Notwithstanding this, I find that the submission is one that requires consideration as a separate other consideration.

34. At the hearing the Applicant gave evidence that his family members were Australian citizens. He thought that the Applicant’s mother had spoken with his State guardian and that paperwork for his citizenship had been completed by that person. This led him to believe that he was an Australian citizen (transcript/28).

35. As the Respondent submitted, although there is evidence of involvement from child protection authorities, it is unclear what type of order that the Applicant was subject to and whether exclusive parental responsibility had been granted to the State. As the Respondent submitted, there is no evidence that he was a ward of the State. It appears he was subject to child protection orders, but the type of order is unknown (transcript/315). In the absence of any relevant evidence to the contrary, even if the Applicant was a ward of the State, I am not persuaded that the State’s duty of care towards the Applicant extended to a positive duty to apply for Australian citizenship on his behalf.

36. I find this consideration should be given neutral weight.   

    Indefinite or Prolonged Detention 

37. As my findings about non-refoulment are not protection findings, a decision to affirm the Cancellation Decision will result in the Applicant becoming liable to be removed from Australia as soon as reasonably practicable (s 198 of the Migration Act). The Department has, as I mentioned above, indicated that he will not be removed until another ITOA is prepared which finds that Australia’s protection obligations are not engaged with respect to the Applicant. He will remain in detention until he is removed (s 189 of the Migration Act). If he applies for a protection visa, he will not be liable for removal until that application has been finally determined (s 197C(3) of the Migration Act). He would face detention for an uncertain duration while he awaits a new ITOA assessment or pending the outcome of any protection visa application.

38. The Applicant has said that he will not apply for a protection visa. If, however, he does, there is a possibility that he will receive a negative outcome on a protection visa application under s 36(1C) of the Migration Act on the basis that he is a danger to the Australian community, or under s 501(1) of the Migration Act on the basis that he does not pass the character test. If so, the Applicant would have further avenues of appeal to this Tribunal, which will further extend his time in immigration detention for an uncertain period. He 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 he could only apply for in response to an invitation (para 9.1(8) of Direction No 90).

39. If I affirm the Reviewable Decision and any subsequent application for a protection visa is refused, the Applicant would also 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 (para 9.1(8) of Direction No 90).

40. If a protection visa is refused but the Applicant is found to be owed non-refoulement obligations, the Minister has the discretion to 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). Relevantly, the Full Federal Court in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [124] stated that the prospect of the Minister granting another visa or making a residence determination is 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 …

1. In this regard, I note information obtained by the Applicant’s legal representatives under freedom of information (A10):

   Question:

   For each year since 2015, how many Protection (subclass 866) visas were granted to people who had previously had a s 501(3A) visa cancellation that had not been revoked?

   Response:

   Since 1 July 2015 there have been no instances where a Protection visa (866) was granted to a person who had previously had a s 501(34) [sic] that had not been revoked.

2. The outcome of any future protection visa application, or a new ITOA, are matters for other decision-makers. However, as I have found above, it is likely that Australia owes continuing non-refoulement obligations to the Applicant.

3. The above information suggests that the most likely outcome if I affirm the Reviewable Decision is that the Applicant will face a period of prolonged or indefinite detention for years rather than months. The Applicant has been in immigration detention since early 2015 for approximately eight years. The length of that detention is in part due to the legal processes and appeals which have taken many years, but nevertheless it is a prolonged and extended period.

4. Ms Lechner stated in her report dated 28 May 2022 (A14/3), and confirmed in her evidence at the hearing, that the Applicant’s trauma and symptoms of complex PTSD have been “aggravated” by his being in immigration detention. She reported that he had been “subjected to further traumatic events in detention, including the suicide of two friends and attempted suicide of another friend – “I save him with the help of a guard””. Her psychometric testing of the Applicant placed him in the range of “likely to be severely psychologically distressed” (A14/4). The following from Ms Lechner’s report summarises that the Applicant suffers from serious mental health issues which have been exacerbated by his detention and events that have occurred whilst he has been in detention (A14/10):

   [The Applicant] is reporting symptoms of “severe” psychological distress, “extreme” depression and the presence of symptoms of Complex PTSD. His low mood is reactive to the uncertainty of his detention and his post-trauma symptoms are exacerbated by this environment in which he has been subjected to a number of assaults and has experienced the death of friends by suicide.    

5. At the hearing Ms Lechner stated that “at times [the Applicant] has had thoughts of suicide reactive to his ongoing detention” (transcript/66).

6. As I mentioned above, the Applicant’s evidence was that he has been assaulted twice in immigration detention. In the context of being asked by Mr Overend if he would apply for a protection visa, the Applicant described these assaults as having an impact on his mental health (transcript/98):

   … just mentally and physically, like, my body’s not what it was, and it’s going to be very difficult for me to get through what I’ve gone through already so far in this place. And in that time, I’ve already copped it, two times I’ve been assaulted for no apparent reason other than just being targeted for, and I still don’t understand why. I’ve been hospitalised twice, when I’ve been asking to get me out of there for so long. So I can’t - I can not go through the same thing. It’s too much. It’s just way too much, yes.

7. In their joint statements (A6 and A17, at paras [3]), GS and SS stated:

   One of his (and our) good friends, [name omitted], killed himself in detention and was observed by [the Applicant], hanging dead in the bathroom. [The Applicant] was badly shaken by this.

8. This statement, although hearsay, does tend to support the Applicant’s evidence about his distress in immigration detention.

9. Assessments and recommendations made by the Commonwealth Ombudsman in an undated report prepared in late 2017 are also relevant. The Ombudsman’s comments lend further support to the negative impact that the Applicant’s detention and the 2017 assault on him have had on his physical and mental well-being. The Ombudsman also highlights the Applicant’s history of self-harm (R1/242):

   The Ombudsman notes with concern the government’s duty of care to detainees and the serious risk to physical and mental health prolonged immigration detention may pose. The Ombudsman notes with serious concern that [the Applicant] threatened self-harm on multiple occasions in relation to concerns for his personal safety and self-harmed to ensure he would be closely monitored by Serco officers. The Ombudsman notes that a psychiatrist reported that [the Applicant] was experiencing a situational crisis and recommended he receive ongoing protection by Serco officers due to these safety concerns.

   The Ombudsman notes that multiple Incident Reports recorded that [the Applicant] expressed concerns related to his personal safety and threats from other detainees. Notably, in March 2017 [the Applicant] was admitted to hospital after he was continuously punched in the face and head by another detainee.

10. The substantial length of time the Applicant has spent in detention, the hardship (including serious assaults) he has experienced in detention, and the prospect of indefinite detention, potentially for many more years, in circumstances where the Applicant has significant mental health issues which are aggravated by his detention, weighs very strongly in favour of the revocation of the Cancellation Decision.

    the weighing exercise

11. The Applicant does not pass the character test under s 501 of the Migration Act.

12. 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.

13. 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 to strongly against the revocation of the Cancellation Decision.

    (b)The best interests of the Applicant’s minor nieces and nephews weighed slightly in favour of the revocation of the Cancellation Decision.

    (c)The expectations of the Australian community weighed strongly against the revocation of the Cancellation Decision.

14. I made the following findings with respect to the other considerations that were relevant. These were:

    (a)For the reasons explained above, Australia’s international non-refoulement obligations weighed moderately in favour of revocation of the Cancellation Decision, in part, because he will not be refouled whilst these obligations continue.

    (b)The extent of impediments if removed weighed slightly in favour of the revocation of the Cancellation Decision, in part, because the Applicant will not be removed to Somalia whilst Australia’s international non-refoulement obligations towards him continue.

    (c)The Applicant’s links to the Australian community weighed moderately in favour of the revocation of the Cancellation Decision.

    (d)The fact that the State of Victoria did not apply for the Applicant to become an Australian citizen is neutral.

    (e)The prospect of indefinite or prolonged detention weighed very strongly in favour of revocation of the Cancellation Decision.  

15. 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.

16. Although, the primary consideration of the protection of the Australian community weighed moderately to strongly, and the expectations of the Australian community weighed strongly against the revocation of the Cancellation Decision, I find that they are outweighed by the prospect of indefinite or prolonged detention which weighs very strongly in favour of the revocation of the Cancellation Decision, and so much so that it significantly outweighs those primary considerations. I have given significant weight to the prospect of indefinite or prolonged detention because the most likely outcome of any decision to affirm the Reviewable Decision is that the Applicant is likely to be facing indefinite detention for a period of years, rather than months. The Applicant is facing indefinite or prolonged detention in circumstances where he has a history of trauma and significant mental health issues and has been seriously assaulted twice in immigration detention. The Applicant has now been detained for approximately eight years, having been released from prison in mid-2015.

17. The remaining considerations further add to the weight in favour of revocation of the Cancellation Decision, even though I have only attributed slight weight (to the best interests of the Applicant’s minor nieces and nephews, and impediments if removed) and moderate weight (to Australia’s international non-refoulement obligations and links to the Australian community).

18. Overall, there are significant reasons which carry significant weight, such that I am satisfied that the Cancellation Decision should be revoked (Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531, [64]).

19. 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.

    Decision

20. The Reviewable Decision, being the decision of a delegate of the Respondent dated 4 March 2021, 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.

I certify that the preceding 286 (two hundred and eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...........[Sgd]..........................................................

Associate

Dated: 1 February 2023

Date of hearing:	14 and 15 June 2022; 30 June 2022; 1 July 2022
Representative for the Applicant:	Mr B Overend instructed by Ms S Fisher, Victorian Legal Aid
Representative for the Respondent:	Mr J Barrington instructed by Ms L Butler, The Australian Government Solicitor