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

RNVF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1522 (28 May 2021)
Division:GENERAL DIVISION
File Number: 2021/1440
Re:RNVF
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:28 May 2021
Place:Melbourne

Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of Class BF Transitional (Permanent) visa – where the applicant is a citizen of the Federal Republic of Somalia – where visa cancelled as minister satisfied applicant failed character test – where applicant made representations seeking revocation of visa cancellation – where delegate not satisfied another reason to revoke visa cancellation – where applicant seeks review by Tribunal – where applicant seeks to summons respondent – summons refused – where minister has made direction to decision-makers – Direction No. 90 – direction has primary and other considerations – primary considerations – protection of Australian community – whether conduct constituted family violence – best interests of minor children in Australia – expectations of Australian community – other considerations – international non-refoulement obligations – extent of impediments if removed – impact on victims – links to Australian community – any other relevant claim – decision under review affirmed
Legislation
Administrative Appeals Act 1975, ss 33A, 35
Migration Act 1958, ss 36A, 197C, 499, 500, 500G, 501, 501CA
Migration Amendment (Clarifying International Obligations for Removal) Act 2021
Cases
Cosco Holdings Pty Ltd v Commissioner of Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432
DFTD v Minister for Home Affairs [2020] FCA 859
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
HPZB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; Re: [2019] AATA 5482
Radge and Commissioner of Taxation; Re: [2007] AATA 1317; (2007) 95 ALD 711
Senior v Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23
Secondary Materials
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)
Migration Act 1958 – Direction under s 499 – Direction No. 75R – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (made 6 September 2017/commenced 7 September 2017)
Migration Act 1958 – Direction under s 499 – Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (made 8 March 2021/commenced 15 April 2021)
REASONS FOR DECISION
Senior Member D. J. Morris
28 May 2021
PRELIMINARY AND BACKGROUND

On 20 May 2021, the Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act1975 (‘the AAT Act’) to prohibit the publication of the name of the Applicant in these proceedings, or any information that might tend to identify him or his family. He will be referred to by the anonym ‘RNVF’. The names of family members who gave evidence will be anonymised. Where a document is quoted that refers to the Applicant, the anonym will be substituted for his name.
RNVF is a citizen of the Federal Republic of Somalia. He was born in January 1981. He was granted a Class BF Transitional (Permanent) visa (‘the visa’) offshore in August 1995 and arrived in Australia in September 1995, aged 14, with his family.
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.
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.
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.
It is this last decision of 4 March 2021, that is before the Tribunal for review.
What is the matter for the Tribunal to decide?
The Act provides, at section 500(1)(ba) that a person may ask the Tribunal to review a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. There are two important things to keep in mind; the Tribunal is not reviewing the decision of the delegate and the Tribunal is making a fresh decision based on the law and the information before it. The parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate.
The Tribunal is required to make an evaluation of the factors for and against revocation. North ACJ said in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
The Tribunal therefore must decide two questions. First, whether the Applicant fails the character test in the Act. If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that RNVF does fail the character test, the second question for the Tribunal to consider, is whether there is ‘another reason’ the cancellation of his visa should be revoked.
The timeframe for making the decision
If a person in the migration zone applies to the Tribunal for a review of a decision under section 501CA(4) of the Act not to revoke the mandatory cancellation of his or her visa, section 500(6L) of the Act provides that if the Tribunal has not made a decision 84 days after the date on which the person was notified of the decision, the decision is taken to have been affirmed by the Tribunal. Accordingly, it is necessary, to avoid this self-executing clause to have effect, for the Tribunal to make a decision in this case by 28 May 2021.
A new ministerial Direction – Direction No. 90
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction.
The delegate who refused to revoke the mandatory cancellation of RNVF’s visa consulted Direction No. 79, made under section 499. On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made a fresh direction under section 499, Direction No. 90. Direction No. 90 (hereafter referred to as ‘the Direction’) commenced on 15 April 2021 and (at clause 3 of Part 1) revokes Direction No. 79 from that date. As mentioned, section 499(2A) of the Act requires that the Tribunal must comply with the Direction in considering this matter. In their submissions, both parties agreed that the applicable Direction in this matter is Direction No. 90.
MATTER PRIOR TO HEARING – SUMMONS REQUEST AND REFUSAL
On 22 April 2021, the solicitors for the Applicant made a request to the Tribunal to issue a summons to the Respondent Minister in the following terms:
All documents relating to what consideration is being given, or may be given, to how Australia will adhere to international non-refoulement obligations, in the event that the mandatory cancellation of the applicant’s visa is cancelled.
On the same date, I refused the request, and the Applicant’s representatives were reminded of the principle that summonses are not issued inter partes, which does not preclude the Applicant making, through his representative, a direct approach to the Respondent for the information sought, noting that it is axiomatic that the material may not exist because the Tribunal has not yet considered the application.
On 26 April 2021, the Applicant’s solicitors made a direct approach to the Respondent, as the Tribunal suggested. The response of the Minister’s lawyers dated 30 April 2021, was tendered in evidence before the Tribunal. It relevantly states:
We are instructed that our client is unable to identify any documents “relating to what consideration is being given…to how Australia will adhere to international non-refoulement obligations, in the event that mandatory cancellation of the applicant’s visa is not revoked. We not that the question of whether the mandatory cancellation of the applicant’s visa should be revoked has yet to be decided by the Tribunal. It is, of course, open to the Tribunal to make a decision to set aside the decision under review, and to revoke the cancellation.
We are further instructed that our client has not identified any documents about “what consideration… may be given, to how Australia will adhere to international non-refoulement obligations, in the event that the mandatory cancellation of the applicant’s visa is not revoked”. This aspect of your request appears to acknowledge that the relevant considerations in relation to the applicant’s case would only fall to be undertaken in the future, and in the event that the Tribunal affirms the delegate’s decision – an event which has yet to occur.
We are instructed that there are case management options that would be open to be explored by the Minister at the relevant time in the event that the decision is affirmed. It would also remain open to the applicant to apply for a protection visa…
(Emphasis added)
The Tribunal had referred the Applicant to an earlier decision, Re HPZB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 5482, in which a similar request was considered. That decision quoted an earlier decision of the Tribunal in Re: Radge and Commissioner of Taxation [2007] AATA 1317 that summonses are not issued inter partes.
In addition, it is relevant to cite Senior v Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23, where Lord Denning MR held:
...I think that, on due notice being given, the courts have the power to order the ITN to produce and show the untransmitted film when the course of justice so requires – of course, on all their expenses being paid just like conduct money. But the court should exercise this power only when it is likely that the film will have a direct and important place in the determination of the issues before the court. The mere assertion that the film may have some bearing will not be enough. If the judge considers that the request is irrelevant, or fishing or speculative, or oppressive, he should refuse it.
(Emphasis added)
This approach of the Master of the Rolls was commented on favourably by Spender J in Cosco Holdings Pty Ltd v Commissioner of Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432.
In this case, the Tribunal formed the view that, apart from the Applicant having other ways of obtaining further information or an indication from the Respondent during the hearing, the request from the Applicant’s solicitors was speculative. It put the cart before the horse, because the Tribunal had not yet heard submissions or evidence about RNVF’s case, much less made a decision. In addition, the Respondent already had a statutory obligation under section 501G(2)(d) and (e) of the Act to provide “all the documents relevant to the making of the decision.”
The Tribunal’s summons power should not be used for a party to arm itself for some future action, such as a person potentially applying for a different category of visa, nor in this case for attempting to find out what future policy advice might be given to the Minister in the event of a particular decision of the Tribunal, not yet made. Neither of these pretexts is relevant to the decision which the Applicant has brought to the Tribunal for review.
HEARING
The hearing was held on 20 and 21 May 2021. RNVF was represented by Mr Min Guo of counsel, instructed by Ms Sarah Fisher of Victoria Legal Aid. The Minister was represented by Mr Ned Rogers of The Australian Government Solicitor. The Applicant gave evidence and was cross-examined. Others who gave evidence were the Applicant’s mother, Ms KM; the Applicant’s sisters, Ms KF and Ms KI; Dr Jonathan Carne, forensic psychiatrist; Dr Graeme Swincer, OAM, and Mrs Sue Swincer, friends of the Applicant; and Ms Catherine Russell, a refugee advocate. The Tribunal appreciates the assistance of an interpreter in the Somali language in relation to the evidence of Ms KM. All the witnesses gave evidence by telephone or video link as permitted under section 33A of the AAT Act, except for Ms KF, who gave evidence in person.
The Tribunal admitted into evidence the following documents:
·Volume of ‘G’ documents (‘GD’), received on 18 May 2021 (Exhibit R1);
·Volume of supplementary ‘G’ documents (‘SGD’) received on 18 May 2021 except pages 396 to 422; 505 to 516 and 517 to 620 (Exhibit R2);
·Statement of RNVF, lodged 30 April 2021 (Exhibit A1);
·Further statement of RNVF, dated 17 May 2021 (Exhibit A2);
·Statement of Ms KM, lodged 30 April 2021 (Exhibit A3);
·Statement of Ms KF, lodged 30 April 2021 (Exhibit A4);
·Report of Dr Jonathan Carne, dated 10 May 2021 (Exhibit A5);
·Joint statement of Dr Graeme and Mrs Sue Swincer, lodged 30 April 2021 (Exhibit A6);
·Statement of Ms Catherine Russell, dated May 2021 (Exhibit A7);
·Statement of Ms KI, lodged 30 April 2021 (Exhibit T2);
·Instruction letter to Dr Jonathan Carne, dated 15 April 2021 (Exhibit T1);
·Department of Home Affairs document headed ‘Ministerial detention intervention power’ (Exhibit A8);
·Department of Home Affairs document headed ‘Cases which are to be brought to my attention under Section 197AB’ (Exhibit A9);
·Department of Home Affairs FOI Request – FA 21/04/01042 (Exhibit A10);
·Email from Respondent’s legal representative to Applicant’s legal representative, dated 30 April 2021 (Exhibit A11); and
·DFAT Country Information Report Somalia, dated 13 June 2017 (Exhibit A12).
The Tribunal also had regard to the Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’), the Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’) and the Applicant’s Statement in Reply. At the conclusion of the hearing, the Tribunal gave leave for the parties to provide written closing submissions, the Respondent by 24 May 2021 and the Applicant by 25 May 2021. These closing submissions were also taken into account.
Has the Applicant failed the character test?
Submitted at (GD, pp 32-35) was a National Police Certificate dated 28 January 2016. It listed recorded court outcomes relating to RNVF. Relevantly, it states that in December 2003 at the County Court in Melbourne the Applicant was convicted of the offence of Intentionally cause serious injury and sentenced to imprisonment for four years and six months. On 4 June 2004, in the same Court RNVF was convicted of the offence of Rape, and sentenced to imprisonment of eight years, concurrent with the sentence he was then serving. In July 2011, the Applicant was convicted of the offence of Armed robbery and sentenced to 54 months’ imprisonment. On the same date, he was convicted of the offence of Attempt robbery, and sentenced to 30 months’ imprisonment, 18 months to be served concurrently, with a total prison term of five years and six months. In August 2011, RNVF was convicted of the offences of Burglary and Theft and sentenced to an aggregate prison term of seven months, to be served concurrently with the prison terms he was already serving.
In oral submissions by both parties it was not contested that RNVF failed the character test set out in the Act; what was submitted by Mr Guo to be at issue, is whether there is ‘another reason’ to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4)(b)(ii) of the Act (see ASFIC, para 1).
Finding in relation to the character test
On the facts before me, the Tribunal finds that RNVF fails the character test. This is because he has a ‘substantial criminal record’, having been sentenced in 2003, 2004 and 2011 to sentences of 12 months or more, and because at the date his visa was cancelled on 19 December 2014, RNVF was serving a sentence of full-time imprisonment.
Offending History
Apart from the serious offences listed above, the National Police Certificate lists 22 previous Court appearances by RNVF, beginning with appearances before the Melbourne Children’s Court in 1997 charged with a range of relatively minor offences.
RNVF’s offending swiftly escalated to involve convictions later the same year for Armed robbery, Theft, Assault with weapon and Burglary. He was given a Youth Supervision Order for 12 months.
In January 1998, the Applicant was convicted of the offence of Armed robbery, Attempt robbery and Assault with intent to rob and Theft charges. He was sent to a Youth training centre for four months. In November 1998, he was convicted of trafficking heroin and sent to a Youth training centre for a further two months. In March 1999, he was convicted of a further offence of trafficking heroin and sent to a Youth training centre for 106 days.
In January 2000, RNVF was sentenced to one day imprisonment for theft and using cannabis. In September of that year he was convicted of possessing heroin and sent to gaol for five days. Two months later he was convicted of 3 counts of Theft and imprisoned for six days.
In February 2001, RNVF was convicted of various theft and drug charges and imprisoned for 50 days. In March 2001, he was convicted of the offence of Robbery and sent to a Youth training centre for six months.
In September 2001, RNVF was sent to prison for an aggregate term of four months on Burglary and Theft convictions. In April 2002, he was imprisoned for a total period of 26 months for two counts of Armed robbery and one count of Theft.

In June 2002, the Applicant was convicted at Melbourne Magistrates’ Court of the offence of Behave in riotous manner in a public place and sentenced to three months imprisonment. In July 2003, RNVF was convicted of the offences of failing to answer bail, Attempted burglary, Recklessly causing injury and Possession of a dangerous article, and given an aggregate term of imprisonment of nine months.
The December 2003, June 2004, July 2011 and August 2011 Court appearances and substantial prison sentences followed thereafter.
Opening Submissions of Applicant
Mr Guo submitted to the Tribunal that few cases come before it in relation to cancelled visas where the Applicant has had such extensive incarceration. It was generally agreed by the parties that since his sentence in December 2003, RNVF has been either in custody or immigration detention, except for the brief period between mid-August and mid-September 2010. This amounts to a period of some sixteen and a half years.
Mr Guo submitted that there have only been minor incidents involving the Applicant in detention since 2015 and none since 2017, and he has not been subject to even an accusation of misbehaviour for the last three and a half years.
Mr Guo submitted that the defining characteristics of this case concern RNVF’s drug and alcohol abuse occurring in the context of a very deprived upbringing and that there had been no drug use for a sustained period. He said that RNVF has spent the entire fourth decade of his life in some form of custody, which has led to a period of forced introspection and this supports a conclusion of rehabilitation. Mr Guo said that RNVF faces a range of supports if his visa is restored and he is released into the community, comprising not only family members but also benevolent individuals. Mr Guo also reiterated in his written submissions that Australia owes RNVF non-refoulement obligations in relation to the circumstances of his departure from Somalia and the situation in that country.
Oral Evidence of the Applicant
RNVF gave evidence and adopted his two statements (Exhibits A1 and A2).
In his first statement, RNVF wrote “The main thing I remember from Somalia is that we always seemed to be on the move”. Mr Guo asked what he meant by that. RNVF said that he meant “running for our lives, one thing and another. War. Genocide. Death. Violence”. RNVF said: “he saw dead bodies as a small child.”
Mr Guo asked RNVF what his father’s position was in the military. RNVF said he was only small, but he believed his father was a ‘high-ranking officer’ who was connected to the government at the time and that this connexion created a lot of enemies for him and the family.
RNVF said his father had taken the family from Somalia to Kenya and then left them. He saw him one more time when he was aged about 10 or 11. His father later died.
Mr Guo asked RNVF why he ran away from the camp in which the family was living in Kenya. RNVF said: “I was running away from trauma. I didn’t know how to deal with what I had gone through and was having nightmares”. He said: “he lost a lot of his extended family by displacement or death and friends by decapitation.”
Mr Guo asked RNVF about issues with his oldest brother. He replied: “There was a lot of abuse – mental and physical – at the time. He was the main reason I wasn’t staying there.” When pressed on what sort of abuse he meant, RNVF said he meant “sexual abuse.”
RNVF was referred to clinical notes of an International Health and Medical Services (‘IHMS’) psychologist, dated February 2015 in which the clinician recorded, after interviewing the Applicant, that he had previously made five suicide attempts when much younger: jumping off a five storey building, running into traffic in Kenya aged 9, and three attempted drug overdoses. RNVF told the Tribunal that the first two attempts were in Kenya and in relation to the incident where he ran into traffic, he said he awoke in hospital. He said he had nothing in Kenya and was despairing.
Mr Guo asked RNVF whether he had anything in Somalia. The Applicant said that at least there he had family and everything he needed. He said he was being sexually abused and did not know the Kenyan language and was on the street, without food or support.
When asked more specifically about his abuse from a family member, RNVF said that he had counselling and had forgiven his brother. He was referred to (GD, p 185) a report by Dr Anthony Cidoni, psychiatrist, in 2011 which referred to “sexual abuse at the hands of multiple male perpetrators” and (GD, p 320) where his lawyers in 2019 referred to him being “sexually and physically abused by family members”. RNVF said that he was abused on the streets as well, and that the family member he was referring to was his older brother and ‘friends as well’.
Mr Guo referred to another IHMS clinical note of 2015 which referred to RNVF becoming a ward of the State, which the Applicant confirmed occurred in Australia and said: “I was doing silly things. I had stuff in my head. My Mum couldn’t handle me; she was in hospital with a premature baby at the time and handed me over to DHS.”
When asked whether he was placed with a foster family, RNVF confirmed that, and said that he did not understand the language or culture and ran away; he was then placed in a hostel. He said he felt lonely because he could not speak English and “I stayed in my room for three months.” RNVF said he first smoked marijuana when another resident youth gave it to him. He said he was aged 15 at the time.
Mr Guo asked RNVF whether he has used illegal drugs in detention. The Applicant said he had not and confirmed he is on a methadone programme. He said he would not be permitted to continue on the programme if he had resumed taking drugs.
Mr Guo took RNVF to the National Police Certificate. In relation to the 2011 conviction for Armed robbery, RNVF said: “he had no contact with his co-accused since the robbery took place.”
The Applicant was taken to a statement he made to the Department responsible for Immigration (‘the Department’) in 2009 (GD, p 158) in which he said that: “My nieces and nephews need their uncle there for them while they are young and growing up”. Mr Guo asked RNVF who they were, and he named them: three boys and two girls. “Some weren’t born when I was arrested. I haven’t seen any of them for years. I have talked to them on the phone. I want to show them I can be a better man. I have met some of them. Two of the eldest ones came to see me in the detention centre.”
Mr Guo asked RNVF about his late father’s political affiliations and why he would still be targeted after the change in generations. RNVF responded: “Because sometimes they still live by clannish laws. We are recognised by our middle names. They would know who I am. A target would be on my back. I might not even make it out of the airport. My father had many enemies. He arrested a lot of people and was loyal to the former government.”
When asked whether he spoke Somali, RNVF said: “I barely speak it. Perhaps 15 or 20 per cent, but I have a child’s vocabulary.”
RNVF confirmed he still had mental health challenges and said he had been receiving one on one counselling in detention and been diagnosed with Post-Traumatic Stress Disorder (‘PTSD’), and had an historical diagnosis of psychosis.
Mr Guo asked RNVF whether he knew whether he could, for instance, get help from a mental health nurse in Somalia. The Applicant responded: “No. They don’t even understand the concept over there.”
When asked whether he thought he could obtain a job in Somalia, RNVF responded: “That would be next to impossible. Language would be the big barrier. I am not qualified and wouldn’t know where to go or where to start.”
Mr Guo drew RNVF’s attention to comments he made in a personal circumstances form submitted to the Department in January 2010 (GD, p 157), where he referred to his father being “one of the original administrators of the deposed government”, and when asked whether that was the reason he believed he would be targeted if repatriated, RNVF said: “Yes. It is easy to recognise who a person is by their language and dialect. They would know my clan and my family.”
When asked what was different now for him from when he was sentenced in 2011, RNVF responded:
Everything I have done has been self-destructive. I want to do something better and positive. I need to seek the help I need. I don’t want to be a burden and cause suffering to others, whether they be family or innocent bystanders. I decided to deal with everything mentally and bring it out in the open. I looked inwardly. I feel a lot of guilt and a lot of shame. I want to look after my mother and my sisters. I want to deal with life positively and get education and a job. I don’t want to live in pain or shame, hiding my face or my name. I want to do the right thing by everyone and show that I can change. I know it won’t happen overnight. I am working at it slowly, slowly. I want to get a degree or two.
Under cross-examination, Mr Rogers asked RNVF if he had read the National Police Certificate and if it was accurate, which the Applicant said was the case.
RNVF agreed that his offending started before January 1997 when he first appeared before the Children’s Court. He agreed he had several months in Youth training centres and said he was not given ‘proper’ courses when residing there.
RNVF said he recalled (GD, p 32) his convictions for Armed robbery and agreed that his sentence in December 2003 for four years and six months was a significant sentence, as was his sentence for eight years for Rape.
RNVF said he did undertake rehabilitation courses during his imprisonment from 2003 to 2010 and then in July 2011 was imprisoned again after being released on parole from his sentence for Rape.
RNVF was taken to sentencing remarks of a Judge of the County Court in June 2011 when he pleaded guilty to one count of Attempted robbery and one count of Armed robbery (GD, p 57). RNVF agreed that, in relation to the Attempted robbery conviction, he grabbed a young woman in the street, walking home one evening. RNVF agreed that he grabbed a necklace from around her neck and attempted to take her handbag. RNVF agreed that his lawyer told the Court he was merely trying to take the woman’s food, but he accepted that he was trying to steal the necklace and handbag. RNVF agreed he was acting alone.
RNVF was taken to a later incident the same evening in a Melbourne park. On this occasion he was with another co-accused. The Applicant agreed that they approached a man walking through the park on his way home and that his co-accused grabbed the man and held a knife to his neck while RNVF took his cash and his bankcards. Mr Rogers asked RNVF about some of the details of the offending, but he said, “I don’t recall what I may have said, it is so long ago.”
RNVF agreed that the Judge’s comment that he and his co-accused were focussing on ‘soft targets’ was a fair assessment and agreed that there was a level of calculation in the Armed robbery offence.
Mr Rogers referred the Applicant the Judge’s comments (GD, p 66):
I have not to date mentioned your criminal history. It is a significant criminal history for my purposes, displaying serious offending committed over a large number of years with sizeable sentences of imprisonment, seemingly not deterring you from committing fresh offending.
RNVF was asked if these comments by His Honour were fair. He responded: “Up to that point, yes”. RNVF agreed that he was on parole at the time of this offending.
Mr Rogers asked RNVF about his statement (Exhibit A1) where he referred to the evening of the 2011 offending and wrote: “I told him [his co-offender] that I was trying to stay away from drugs. I did have one glass of sparkling wine to celebrate the reunion of sorts. Maybe he put something into the wine but that one glass is all I consumed.”
RNVF confirmed he had only one glass of wine that evening and when asked what made him think his acquaintance had put something in the wine, responded: “Because one glass wouldn’t have led me – I knew he had some pills as well.”
He said he did not know for sure because he did not see anything put in his drink.
Mr Rogers asked RNVF why he re-offended on this occasion when drug-taking was not a factor. He replied: “I didn’t say it wasn’t a factor. I can’t say yes or no. I had one glass plenty of times and it didn’t get me where I was that night. One glass wouldn’t have made me do that. I confronted him about it later.”
Mr Rogers asked, if this was the case, why it had not been raised in Court. RNVF said “I raised it in Port Phillip Prison. He admitted it to me. It was too late by then.”
Mr Rogers then asked RNVF whether it was now his evidence that his co-offender admitted putting a drug in his drink. The Applicant responded: “In the end he did.”
RNVF was then asked about the Rape conviction in 2003. He agreed that he saw the victim argue with her boyfriend and she then went out into the back yard of RNVF’s house, where they had all been drinking together. RNVF agreed that he went to console the victim after the argument and then manhandled her and raped her. RNVF was asked whether he thought the Judge’s remarks, (GD, p 83) that the fact that he pretended to console the victim after her argument meant he was not overcome by drink was fair. The Applicant said: “That seems fair.”
RNVF accepted his eight-years sentence was for serious offending and that the victim was vulnerable.
Mr Rogers then took the Applicant to his conviction for Intentionally causing serious injury in December 2003. On this occasion, RNVF and others were in a flat, drug-taking and drinking. The victim brushed past the Applicant on the way to the lavatory. RNVF agreed he went to another room and obtained a knife. He told the Tribunal: “There were a lot of extenuating circumstances over weeks. All drug-related, me being paranoid.”
RNVF agreed that at the time of this offending he was on parole, and he continued to commit serious crimes.
The Applicant was taken to sentencing remarks in the County Court in April 2002 relating to a guilty plea on a conviction for Armed robbery. This incident involved accosting a man in the Melbourne CBD. RNVF said he could not recall dates or places. He agreed that he was on probation and knew the consequences of offending. When asked why that did not deter him, RNVF said: “I was intoxicated and wasn’t thinking clearly.”
Mr Rogers took RNVF to certificates of participation in a 24 hour drug and alcohol programme in May and June 2005, which he completed (GD, p 165) and a further course on drug treatment he undertook in April and May 2005 (GD, p 166), which he completed. RNVF agreed he had done the courses and said, “I had a lapse at that stage.”
Submitted at (GD, p 171) was a letter from a clinician employed by the Department of Justice dated May 2010 which relevantly stated:
To date, RNVF has participated in twenty (20) sessions of individual counselling. He has engaged well in sessions, and has been open to addressing issues he is experiencing through individual counselling. RNVF has made significant progress in dealing with his presenting issues; he has displayed motivation to make changes, and an increasing level of insight.
RNVF said this was a fair assessment at the time. He agreed he had re-offended after this and said: “I lapsed. All the hard work I’d put in. I didn’t have adequate support around me”.
Mr Rogers took RNVF to (GD, p 143) a letter dated November 2009 from an officer of the Department advising him that consideration was being given to cancelling his visa. RNVF said he recalled receiving one letter but could not recall if it was this particular letter.
The Applicant was taken to his December 2009 statement (GD, p 160) where he wrote that he took full responsibility for his actions and felt deeply ashamed of what he had become. Mr Rogers asked if it fair to say that in 2009 he was ‘deeply ashamed’ of his conduct. RNVF responded: “I still am. It was a lapse. It’s a long process. I was without family support then. Now I can go to South Australia – I have no more parole.”
Mr Rogers noted that the 2009 statement referred to an intended reunion with his family. RNVF said that did not occur.
Mr Rogers then took RNVF to an IHMS clinical note (SGD, p 867) dated March 2019 which states:
Says he is no longer using other drugs, but says he has previously used cannabis and ice since being at Villawood; Last time he used ice was approx. 3 months ago and he smoked it.
RNVF, was asked whether he denies saying this to the nurse. He responded: “I don’t remember saying that. I have used cannabis and ice in the past.”
When asked directly by the Tribunal whether he might have said it, RNVF said: “No. I have never used drugs in Villawood.”
In terms of the methadone programme, RNVF said he had reduced to a very low dose. He said he took the advice of the parole board to take methadone. When asked whether the methadone reduced his drug cravings, RNVF said: “At one time it did. Now I am only on a small dose because of back pain.”
RNVF was asked if he would continue methadone if released into the community. He responded: “Only in the short term. I don’t want to take myself off it immediately.”
RNVF said that there are drug tests in immigration detention for detainees who are on prescribed methadone or morphine. He said he was not aware of what consequences there were if a detainee returned a positive result because he had never failed.
The Applicant said he had not seen his mother ‘for a very long time’ but he talks to her on the phone or sends her a text message. He said he finds it hard to talk to her in the Somali language, which is why he talks more to his sisters.
RNVF said he speaks to his sisters, Ms KF and Ms KI daily or weekly, sometimes on the phone and sometimes using social media applications. He said they knew he was on methadone. Mr Rogers asked the Applicant whether he talks to his sisters about his PTSD condition. He responded: “They know I’ve had issues before. This is the healthiest I’ve been. I have weaned myself off medication. I am not on medication now, the only medication I am on is methadone.”
The Applicant said he had learnt to manage his PTSD. RNVF said he had not discussed in detail with his family the help he will need, but that they know he will need help.
RNVF said he would not return to Somalia voluntarily and relied on a risk of harm if he is returned to that country. He said he knew that he was able to apply for a protection visa and that he would take advice on that option if it arose.
Oral Evidence of Ms KM
Ms KM, the Applicant’s mother, gave evidence. She confirmed she had provided a written statement (Exhibit A3) which had been read back to her in Somali.
Ms KM said that RNVF would live with her in South Australia if he was released into the community. She said she has a three-bedroom house but now lives alone, so there was ample room for the Applicant.
Ms KM said she believed she could give RNVF advice and that he would listen to her, and ‘not do the wrong things he did’. She said there is a big difference in him from when he was a child and now as a mature adult and that she believed her son did not want to go back to gaol.
Ms KM confirmed she is now an Australian citizen. She said they did not have any family back in Somalia and if her son was repatriated, she would not be able to go back to see him. When asked why she would be unable to return, Ms KM said: “The reason is the same for him – those who killed his father are still there.”
Under cross examination, Ms KM said she had not seen her son’s criminal history but was aware of the offences he had committed. She said she had not talked to the Applicant about his offending because he was embarrassed and did not want to share with her what he had done.
Ms KM said that RNVF had not told her about his drug use when he started and what drugs he had taken. She said she never saw him taking illicit drugs when he lived with her, or saw him affected by drugs, and she did not know he was still getting treatment for drug addiction.

Ms KM said she had known of her son’s mental health problems in the past but felt a long stretch in prison might have an effect on a person. When asked if she knew he needed mental health treatment if released, she responded: “If he needs help, I can take him to the doctor and seek treatment, but first we have to see if he is sick.”
Ms KM confirmed she is not working and receives social security payments. She felt she would be able to help RNVF financially if he came to live with her, but also that his brothers who were both working, could also help.
Ms KM said she had not visited RNVF in detention since he was moved to Sydney, but she had visited him on two occasions when he was in prison, in company with his sisters.
Oral Evidence of Ms KF
Ms KF, sister of the Applicant, adopted her statement (Exhibit A4). She told the Tribunal that through her former work as an employment consultant, she had built a network of local contacts including clinical psychologists and psychiatrists, general practitioners, and mental health workers.
Ms KF said she was aware RNVF was on methadone and she was aware of people being linked by mental health and drug support services to a General Practitioner who could prescribe methadone.
Ms KF said that she had been affected by RNVF’s incarceration “quite a bit; he hasn’t met any of my children. I believe people deserve a second chance and he should be able to get back into society.”
Mr Guo asked Ms KF what she thought would be the result if RNVF was sent back to Somalia. She responded: “It would be devastating. We are talking life and death. There is a civil war there.”
Under cross-examination, Ms KF said that she had a lot more contact with her brother over the last few years and now talks to him three or four times a week by phone, or text messages or through social media.
When asked about her knowledge of RNVF’s drug history, Ms KF said: “I am aware of heroin. I haven’t discussed other drugs with him.”
Ms KF said she had never seen RNVF take drugs. She said the Applicant had ‘briefly mentioned’ his criminal history to her, but she had worked it out.
Ms KF said she was aware of RNVF’s diagnosis of PTSD: “It heavily affects him. Him being locked up will exacerbate it more. He needs counselling from people with knowledge of PTSD”. Ms KF said she had made inquiries and knew there was an ability of obtaining a mental health plan for her brother, and she intended to follow this up and would prompt him and take him to appointments, if necessary.
Ms KF said she had three young children who knew RNVF was their uncle and they spoke to him “maybe twice a week for about half an hour.”
In answer to direct questions from the Tribunal, Ms KF confirmed she has two brothers who also lived in South Australia. She said she had a good relationship with her brothers. When asked whether she was aware of past difficulties between RNVF and their oldest brother, Ms KF said: “No.”
Oral Evidence of Dr Carne
Dr Carne gave evidence that he examined RNVF in his capacity as a forensic psychologist and had 25 years of experience giving expert evidence in New South Wales Courts regarding psychological diagnoses of prisoners and detainees.
Dr Carne was taken to his report dated 10 May 2021 (Exhibit A5) and confirmed he examined RNVF on 10 May 2021. Dr Carne said he had reviewed extensive documentation sent to him by RNVF’s legal representatives and was aware of rehabilitative courses the Applicant had undertaken in prison.
Dr Carne said there is a difficulty of any person undertaking course in prison because the subject is not challenged by day-to-day life and he needs access, in normal society, to a psychologist and a psychiatrist, to treatment and medication.
Dr Carne said his impression of RNVF is that he was strongly motivated to return to civil society and lead a normal life. Dr Carne said: “His drug taking was self-medication and because of an inability to access good psychological treatment. His offending pattern is almost entirely because of recreational drugs.”
Mr Guo asked Dr Carne why he thought RNVF had taken up illicit drugs. Dr Carne responded: “He has serious PTSD caused by horrific and devastating experiences in Somalia and Kenya. He self-medicated by using illicit drugs on the street.”
Dr Carne said his view was that RNVF was strongly motivated to lead a law-abiding lifestyle and that he acknowledges his psychological problems. He said that RNVF expressed the wish to undertake treatment and wants to return to his family and undertake rehabilitative courses and education.
Dr Carne said that he did not see evidence of psychopathy or antisocial elements in RNVF and that “My experience with people in middle age is that they increasingly seek help and have insight. This is well described in the literature.”
Dr Carne said he was familiar with RNVF’s record of prison sentences but that he did not interview the Applicant about his 2010 offences and did not know why he re-offended. He said that his clinical experience is that imprisonment leads to higher rates of recidivism.
Under cross-examination, Dr Carne said he had seen RNVF on one occasion for 90 minutes, by video link. Mr Rogers referred to a report by a psychologist, Pamela Matthews, which was referred to by the Judge in the 2003 sentencing remarks. Dr Carne said he did not think he had Ms Matthews’ report but did have a report of Dr Cidoni.
Dr Carne agreed that it is proper to take into account that in 2002 RNVF indicated empathy with his victim and remorse and this was indicative of not offending in the future, and that the re-offending might mean the expression of remorse carries less weight; but all the circumstances of the offending would need to be looked at, including the serious psychological condition of the Applicant and that he offended to obtain money to purchase drugs.
Dr Carne said the conditions of PTSD and addiction are often chronic and need to be under continuous treatment and that sufferers need to put in place ‘relapse prevention’ and that courses in prison are well-acknowledged as necessary but they are not sufficient.
Dr Carne said he was aware that RNVF was on a methadone programme and told the Tribunal that he is an addiction specialist and prescribes it, noting methadone is an analgesic and it can help with chronic pain. He said his understanding is that RNVF is on a maintenance dose of methadone but that it also helps him with persistent back pain.
Mr Rogers asked Dr Carne about what information he had on family support for the Applicant. He responded: “I understand there has been a schism between the Applicant and his family, and they are now happy to support him. I would usually interview the family.”
Dr Carne agreed it would help if the family had a good knowledge of RNVF’s historical drug use.
Dr Carne said he had not looked at the rape offence, which “wasn’t the focus” of his report, but did know that intoxication and subsequent amnesia were features of that offending. He agreed with Mr Rogers that there would be a greater chance of RNVF re-offending without support.
In answer to direct questions from the Tribunal, Dr Carne agreed he had not administered any psychometric tests and had not made a formal assessment of risk of re-offending. In response to whether he would care to advance a view on risk, Dr Carne responded: “Assessment is better after close monitoring and seeing how the person can cope after being in the community.”
Dr Carne said he had no direct knowledge of what mental health services are available in Somalia but “there would seem to be nothing. Normal society has broken down if the reports I have seen are correct. He would become ill and might make suicide attempts. He would flee to another country.”
In questions in reply, Dr Carne said he would normally spend longer with a patient and would interview the family. He said: “This was by no means a full assessment. I did the best I could do in the circumstances.”
Dr Carne said RNVF needs counselling and treatment and medication and ‘eager participation’.
Oral Evidence of Ms KI
Ms KI gave evidence and adopted her statement (Exhibit T2).
She told the Tribunal she works as a disability support worker, which involves helping people with ‘shopping, housework, doctors’ appointments, and the like, including specialist appointments.’
Ms KI said she was happy to welcome RNVF back into the family and community and would take him to appointments and try and rebuild his confidence.
Under cross-examination, Ms KI said she had lived in the past in Adelaide and then in Melbourne with RNVF for about two years. She recalled him getting into trouble on some occasions with the police and making some mistakes.
Ms KI said she had never seen her brother take drugs. When asked about RNVF’s offending history, Ms KI said she was not “a hundred per cent sure. Maybe some silly stuff, maybe stealing and making silly choices.”
Ms KI said she was aware of the rape conviction. She said RNVF had not spoken to her about his offending and she suspected he was embarrassed about letting the family know. She said she was aware of her brother’s PTSD diagnosis.
Ms KI said she has four children, aged 23, 21, 18 and 13. She said they did not know RNVF, but the older ones had seen him once in detention in Melbourne.
Ms KI wrote in her statement that RNVF could live with her or their mother if he is released into the community. She said that all of her children currently live at home and if her brother came to stay with them, she would have to share a room with one of her daughters, and agreed that the better option was for him to live with Ms KM, who lives only 10 minutes away.
Oral Evidence Dr and Mrs Swincer
Dr and Mrs Swincer gave joint evidence, as agreed by the Tribunal without objection from the parties, on the basis that they had lodged a joint statement (Exhibit A6).
Dr Swincer said that RNVF had not told him of his offences, but he had found out yesterday (i.e. 19 May 2021) from the Applicant’s legal representatives what they were. Dr Swincer said their policy as visitors to detainees was not to press detainees on their offending unless the person wanted to volunteer the information. He said the only time he would ask is if a detainee asks him to fill in a form which required such information.
Dr Swincer said that he and his wife have significant cross-cultural experience and lived for some years in Indonesia and had wide experience of people who have experienced factors of trauma, racism, rejection, and despair.
Dr Swincer said they had met RNVF in Sydney before they relocated to a town south of Adelaide, but they had contacts with advocates in Adelaide who would be able to assist RNVF.
Mrs Swincer told the Tribunal that they had often had refugees living with them, over many years.
In response to direct questions from the Tribunal, Dr Swincer said that they were not official prison or detention centre visitors but had been part of groups who would visit detainees to offer support and assistance, commencing in early 2011, and that they had visited various immigration detention centres around Australia in that capacity.
Oral Evidence of Ms Russell
Ms Russell gave evidence and adopted her statement (Exhibit A7).
She said she was only very broadly familiar with RNVF’s criminal history. Ms Russell said she had supported refugees since retiring from a teaching career eight years ago and had wide experience directly dealing with several relevant agencies in Adelaide.
Ms Russell gave specific examples of the various agencies, as mentioned in her written statement, and the nature of her contacts with them.
Ms Russell said she had not met or spoken to RNVF but was knowledgeable about the range of supports he would be likely to need if released into the community.
CONSIDERATION OF THE DIRECTION
At paragraph 5.2, the Direction sets out principles which provide the framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation of a visa under section 501CA of the Act. 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 engage 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 measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(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 measurable risk of causing physical harm to the Australian community.
The Direction also provides (Part 2, paragraph 7) that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
Part 8 of the Direction relevantly provides that, in making a decision under section 501CA of the Act, 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; and
(4)expectations of the Australian community.
Part 9 of the Direction provides that, where relevant, other considerations must also be taken into account. These considerations include, but are not limited to:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
It is important to note the wording in paragraph 9(1) of the Direction, which makes clear that the other considerations include those stipulated in the Direction, but a decision-maker is not confined only to those. This means that if there is another articulated claim that something is relevant in the particular circumstances, and the claim relates to a matter that is consistent with the purposes of the Act, that claim should be properly addressed. Any such claim must be material to the matter being considered, which is the exercise of a discretionary power under the Act.
Primary Consideration: Protection of the Australian community (paragraph 8.1)
The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence. The evidence in the documents before the Tribunal indicates that some of RNVF’s offending fits into these broad categories, notably the incident where the Applicant accosted a young woman in the street in 2010 and tried to steal her necklace and handbag, and the rape offence committed in December 2002.
The Tribunal must also consider other categories of serious offending, including causing a person to enter into, or be a party to, a forced marriage; crimes committed against vulnerable members of the community, such as the elderly and disabled, or government representatives performing their duties as such, and any crime in immigration detention. It would not seem to me, on the face, that RNVF’s extensive offending fits within one of these categories.
Paragraph 8.1.1(1)(i) and (ii) requires decision-makers to have regard to the Government’s views that violent and/or sexual crimes and crimes of a violent nature against women or children are to be viewed very seriously. RNVF’s offending on several occasions squarely falls within one or more of these categories, with the exception that there would appear to be no violent crimes involving children in his record.
In the sentencing remarks of the Judge of the County Court in December 2003 (GD, p 87) relating to a guilty plea for the offence of intentionally causing serious injury, a summary of the facts were that the Applicant and others were at a flat one evening where the group was drinking and using drugs. The victim brushed past RNVF on his way to the lavatory. RNVF in his state of mind thought the victim was making sexual advances. He retrieved a knife from another room and returned to kick in the lavatory door and proceeded to stab the victim three times, twice in the back and once in the arm. The victim was taken to hospital where his wounds were explored in surgery and he received a blood transfusion. He received a left haemothorax and a ruptured spleen as the result of the attack.
In the sentencing remarks of a different Judge in June 2011 (GD, p 57) relating to RNVF’s plea of guilty for the offence of Attempted robbery. His Honour referred to the fact that the victim was an 18-year-old woman walking home from work one Sunday evening. The Applicant grabbed her, and grabbed a necklace from around her neck, causing it to break. He then tried to grab her handbag. As the result of the crime, the victim gave up her part-time job and described her lack of trust and the effect on her feeling safe on the street and in relationships.
Later the same evening, RNVF and a co-offender accosted a man in a park walking home. The co-accused grabbed the man and held a knife to his throat while the Applicant took out the victim’s mobile phone and wallet. RNVF told the victim that if he told the police, he would kill him and his family. This matter related to the offence of armed robbery as the Judge found that the two offenders were acting jointly.
In respect of the Rape conviction against RNVF (GD, p 81), this was found after a jury trial. In the sentencing remarks of the Judge in June 2004, His Honour described that the victim and her boyfriend were drinking at a house, which the Applicant said was his house, with the Applicant and another. An argument between the victim and her boyfriend occurred. She went out to the back yard. RNVF went, it was said, to console her. He then forced himself on her, bit her face and caused other injuries. She struggled but eventually RNVF forced the victim onto the concrete surface of the yard, lowered her lower clothing and effected some penetration of her vagina with his penis. The victim’s boyfriend came upon the Applicant on top of the victim and kicked RNVF in the head, and the victim managed to get to her feet and run away. The Judge remarked that this was ‘quite brutal treatment’ of the victim. Although defence counsel submitted that the crime occurred during a heavy drinking session and RNVF had no knowledge of it afterwards. His Honour found that RNVF’s conduct immediately before the rape in purporting to console her negates any suggestion he was so overcome by alcohol that his criminality is somehow lessened. The Judge considered that RNVF’s prior criminal history was not without significance and that he had demonstrated no remorse. This led to the imposition of an eight-years’ sentence, with six years to be served before eligibility for parole.

If these offences alone constituted the criminal history of the Applicant, the Tribunal would be satisfied that his conduct is of a very serious nature, but they may be added to by some 95 or so other offences set out in the National Police Certificate. Some of which may be properly described as minor, but all of which cumulatively illustrate a trend of increasing seriousness and some element of intransigence in RNVF’s offending.
The Applicant’s offending has caused physical injury to several victims, and emotional trauma to them. It has involved property crimes and several drug trafficking offences. He has committed offences, as referred to above, when on parole or probation.
Paragraph 8.1.1.(1)(g) requires me to consider whether the Applicant has re-offended since being formally warned about the consequences of further offending in terms of his immigration status. RNVF in his oral evidence conceded that he had been warned before that his visa was liable to be cancelled because of his offending. A letter to that effect was at (GD, p 143) dated 13 November 2019. The Applicant could not recall receiving the letter but agreed in his evidence that he instructed lawyers acting on his behalf to make representations to the Department at the time. The Tribunal formally finds that this constituted a warning and the Applicant did subsequently re-offend.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The Direction requires the Tribunal to consider both the nature of harm should RNVF engage in further criminal or other serious conduct and the likelihood of him so engaging.
The nature of the harm if the Applicant re-offended would be the potential of violence crimes against the person, such as the very serious offence of rape, armed offending if RNVF offended again with a weapon such as a knife, serious and potentially life-threatening injury of the Applicant again attacked a person with a knife, trafficking in illicit drugs, and further robbery offences, either opportunistic or premeditated. The nature of all these crimes severely undermines civil society. RNVF has attacked people he knows, in terms of the rape and the intentional serious injury offence, and strangers who he has accosted on the street. People are entitled to be protected from such serious criminal conduct.
Counsel for the Applicant placed particular emphasis on RNVF’s conduct in the last five or so years in detention, and in particular the last three and a half years, in terms of contributing to his rehabilitation. The Tribunal accepts that RNVF’s conduct has been unremarkable, and he has been well-behaved, particularly since 2017, but notes that this is an artificial environment and, as Dr Carne in his oral evidence emphasised, an assessment of risk is difficult to arrive at when the person who is being assessed is not in the community, facing the environment, stresses, opportunities and potential treatments not necessarily available in detention.
The Applicant admitted that during his prison sentences he has undertaken several targeted rehabilitative courses, especially ones tailored to prisoners with drug and alcohol problems, and that he has nonetheless gone on to re-offend. It is particularly concerning to me that he has offended when on probation or parole, in the full knowledge of the conditions he had to adhere to; which indicates either an unwillingness or an inability to take himself away from circumstances that might lead to further criminal offending.
The Tribunal was concerned about some of the evidence RNVF gave about the most recent offending in a Melbourne Park where he told the hearing he suspected something might have been put in his wine for him to have acted as he did, and then changed his evidence to say that he had subsequently confronted his co-accused in prison, who admitted it. This is inconsistent with his earlier evidence that he had not spoken to his co-accused since the evening of the offence. This is not a major inconsistency, but it does suggest at least some denial, even now, of his responsibility for his actions that night.
The Tribunal accepts the clear sincerity of Dr and Mrs Swincer and Ms Russell who were called as witnesses. Dr and Mrs Swincer have personal knowledge of RNVF and have made offers of personal support and assistance in what I consider to be a clear-eyed way. It would appear that they have extensive experience assisting other detainees, both in detention and in the community. However, even if the Applicant relocated – as is his plan to Adelaide to live with his mother, Dr and Mrs Swincer live some distance away which would have an influence on the nature of their support. Ms Russell’s evidence was that she has not met RNVF, but the Tribunal accepts that she has comprehensive local knowledge of agencies that would be of assistance to RNVF and stands ready to assist him in the Adelaide community.
Dr Carne’s opinion was that RNVF was motivated to rehabilitate, partly because of the effect on him of such a long period of incarceration. The Tribunal gives due weight to his report and his conclusions because of his professional expertise but was troubled that Dr Carne had not apparently considered the most serious offence of which the Applicant has been convicted. I do not accept Dr Carne’s conclusion that drug-taking has affected all RNVF’s offending, though I accept it was a significant driver, especially in terms of obtaining ready cash to buy drugs. The rape conviction refers to intoxication and while Dr Carne sought in his evidence to suggest that when he referred to drugs, he included in that alcohol, I am not convinced that was what he meant in that particular conclusion in his report. Dr Carne’s report is also affected by the evidence he gave that he was unable to make a full assessment of the Applicant because of the relatively limited time he was able to interview him, and that he was unable to provide any professional assessment of the understanding of RNVF’s family of his drug problem, and that he would usually also interview family members if making a full assessment.
The Applicant’s mother, with whom he would potentially live, would seem on her evidence to be supportive and is keen to help her son. However, she admitted no knowledge of his drug history. His sisters had some slightly better knowledge and did seem to me to have an appreciation of the nature of the health professionals who RNVF would need to engage with, in particular Ms KF who had made some inquiries about enrolment in a local methadone programme. However, RNVF’s evidence is that he has ‘weaned himself’ off all medication except for a maintenance dosage of methadone, which he claimed was largely because of chronic back pain, and he also wants to cease his methadone prescription in the foreseeable future. The Tribunal can understand this desire, but it invites the question about how the Applicant would handle withdrawal from drugs and his chronic back pain; the answer might be different medication, but I will not speculate about that.
The summary of the evidence above refers to an IHMS nurse writing a clinical note in March 2019 that RNVF reported to her he was no longer using drugs but had used cannabis and ice since being at Villawood IDC, and that he last used ice around three months before, i.e. in December 2018 or January 2019. RNVF strongly denied he had said this, and Mr Guo submitted that the Tribunal could not have regard for it because the nurse was unable to be cross-examined. I do not accept that submission. This is a clinical note where it is also recorded the Applicant engaged well with the nurse, and I can see no reason or motivation as to why she would have fabricated this record, especially as she was quite specific that RNVF had told her when last he used ice.
Overall, while I accept the evidence that RNVF’s conduct has been good in the last three or so years in detention, he has not been tested outside, as Dr Carne said, and with his history of lapsing into drug-taking and re-offending; in spite of stern admonitions from successive Judges in sentencing, and in spite of undertaking a range of courses, leads me to conclude that the risk of re-offending with this background is real. If the offending is of the nature of the Applicant’s most recent convictions, it could involve violent crimes against the person.
The Tribunal finds that this primary consideration, especially because of the violent nature of the offending, weighs heavily against revoking the mandatory cancellation of the visa.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
Paragraph 8.2 states:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…
(2) This consideration is relevant in circumstances where:
(a)A non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
There was no evidence before the Tribunal relevant to this primary consideration. It therefore weighs neutrally in this assessment.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Tribunal is required to make a determination regarding the best interests of any relevant minor children who may be affected by the decision. The ASFIC did not make fresh submissions about the effect on minor children other than to rely on earlier submissions. I note the delegate remarked (GD, p 18) that RNVF had not provided current information regarding his minor family members. It would seem to me, on the basis of the oral evidence given at the hearing, that the relevant minor children who may be affected by a decision relating to RNVF are the three children of his sister, Ms KF: a girl aged 12, a boy aged 7 and a girl aged 6. His other sister, Ms KI has four children, and the youngest is a daughter aged 13, who is the only minor child of Ms KI.
The Direction requires me to make separate determinations if I can identify that the interests of specific minor children will be differently affected. I have no evidence of that before me, so I will make one determination relating to the four minor nieces and nephew of the Applicant’s sisters. There was no information before me of any other relevant child. The Tribunal notes that the RNVF’s own evidence was that he has not met the younger nieces and nephew face to face as he has been interstate and in either custody or detention during their formative years. However, Ms KF and Ms KI said that their children did speak to him regularly on the telephone or by text messages or through social media applications. Both witnesses said that their children were aware of their uncle and would like him to be part of their lives.
The Tribunal is required to give less weight where the relationship between the minor children is not parental (paragraph 8.3(4)(a)), or where there have been long periods of absence between the non-citizen and the minor child. That is so in this case. However, I accept that they do have contact with their uncle and, as such, there would be some effect on them if RNVF was deported. I therefore determine it would be in the best interests of these identified minor children for the mandatory cancellation of the visa to be revoked.
The Tribunal finds that this primary consideration weighs in favour of revocation of the visa cancellation, but the weight is not heavy because others perform parental roles in relation to each of the minor children affected.
Primary consideration: Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia, of the following kind:
…
The Direction then proceeds to list specific sorts of conduct, one of which the Tribunal considers may explicitly apply to RNVF’s offending: paragraph 8.4(2)(a) refers to acts of family violence and paragraph 8.4(2)(c) relates to commission of serious crimes against women, children or other identified vulnerable members of the community, and states that ‘serious crimes’ include, relevantly, crimes of a violent nature.
As the Direction says, the expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A former version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’).
It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are ‘deemed’ — they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may derive by some other assessment or process of evaluation. It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which the Tribunal takes as an acknowledgement of the approach taken by the plurality of the Court in FYBR.
Therefore, while the expectations of the community are ‘deemed’ to weigh against an Applicant, the relative weight will be affected by the circumstances in the individual case, including the seriousness of the offending or other conduct.
The evidence of RNVF’s past mental ill-health and the traumatic circumstances of his coming to Australia might be a factor that ameliorates the weight attributable to this consideration because that psychological condition may have been a factor in at least some of his offending. However, RNVF has committed particularly unpleasant and violent offences against persons, especially the rape and intentionally causing injury offences, both against persons who were known to him. He has also breached orders and been blithe in continuing serious offending while on parole or probation.
The Tribunal finds that this primary consideration weighs heavily against revoking the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
Consideration: International non-refoulement obligations (paragraph 9.1)
The Direction sets out that a non-refoulement obligation is an obligation on Australia not to forcibly return, deport or expel a person to a place where they would be at risk of a specific type of harm. Australia has obligations under the 1951 Convention relating to the Status of Refugees and other treaties, namely the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (‘CAT’) and the International Covenant on Civil and Political Rights (‘ICCPR’).
The Direction states, at paragraph 9.1(7) that where a person makes a claim which may give rise to international non-refoulement obligations and the person is able to make an application for a protection visa, those claims will be ‘conclusively assessed’ before consideration is given to any character or security concerns associated with the non-citizen. That obligation applying to delegates of the Respondent is also stipulated in Direction No. 75, made under section 499 of the Act. As RNVF acknowledged in his oral evidence, he is able to apply for a protection visa in the event his visa is not restored to him, and the Tribunal is satisfied that the long-held practice of the Department not to take action to remove a detainee in these circumstances until he or she has availed themselves of that opportunity would be no different in his case.
Direction No. 75 relevantly provides, in Part 2:
In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below:
(1) The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. …
Nevertheless, notwithstanding that, the Tribunal has an obligation to consider any properly articulated claims made at this stage. RNVF asserts that he would face personal risk if deported to Somalia because of the former military/governmental role his late father played in the former regime. He also said that he does not have any family left in Somalia and was unfamiliar with the local language, possessing only what he described as a ‘child’s vocabulary’.
Before the Tribunal (GD, p 105) was an International Treaties Obligations Assessment (‘ITOA’) conducted in relation to RNVF on 10 October 1992. That is a specific assessment undertaken in the Department to examine whether RNVF was owed protection obligations by Australia under the 1951 Refugee Convention, and the CAT and ICCPR. The assessor relevantly found:
Whilst I acknowledge the improvements to the security situation in southern and central Somalia since these [May 2010] guidelines were issued, I consider that it would be premature to characterise the situation as “safe” for someone such as RNVF who suffers from a mental illness; has no connections in Somalia; has limited familiarity with Somali society; and barely speaks the Somali language.
…
Finding
For the reasons set out above, I find that RNVF has a well-founded fear of persecution in Somalia for the purposes of the Refugee Convention.
The assessor also found (GD, p 115) that there were substantial grounds for believing that “as a necessary and foreseeable consequence of RNVF being removed from Australia to Somalia, there is a real risk he will suffer significant harm” in respect of Australia’s non-refoulement obligations as a signatory to the CAT and the ICCPR.
The assessor concluded:
I find that Australia has non-refoulement obligations to RNVF under the CAT and the ICCPR, as reflected in paragraph 36(2)(aa) and subsection 36(2A) of the Migration Act. I note that the ineligibility provisions in subsection 36(2C) of the Migration Act could affect his eligibility for a protection visa; however, this does not impact on Australia’s obligations not to refoule him to Somalia.
The Tribunal notes that the ITOA is now some 29 years old, however, in an email by a Department officer in January 2016 (GD, p 117) it was confirmed as still valid as there has been insufficient improvement in the situation in Somalia. The Tribunal is also informed by the DFAT Country Information Report - Somalia (‘CIR’), which was produced in June 2017. The CIR reports that from 1991 until the formation of the Federal Government of Somalia in 2012, there was no effective government in that country, and Somalia was considered a failed state by the international community.

In terms of the security situation, the CIR records (at paragraph 2.25):
The security situation in Somalia is highly volatile and security incidents and crime are a common feature of everyday life. Somalia is ranked first of 178 countries in the 2016 Fragile States Index and seventh on the 2016 Global Terrorism Index. Inter-communal violence is the major destabilising factor in Somalia, including armed conflict between clans or warlords. Other factors include: protracted conflict, severe humanitarian conditions, widespread corruption, piracy, border disputes with Ethiopia and Kenya, and the presence of al-Shabaab and other Islamist groups (including those linked to ISIL – the Islamic State of Iraq and the Levant aka Daesh). All contribute to an unstable and unpredictable security environment.
Later in the CIR, the situation for returnees who have spent time in western countries is referred to (paragraph 3.14):
A central part of al-Shabaab’s vision for Somalia is an Islamic state free from perceived foreign, or ‘infidel’, influence. In [the] light of this, Somalis who have spent periods in western countries for education, employment or migration reasons…can be at risk of violence from al-Shabaab.
The CIR concluded that people who have spent time in the West face a moderate risk of violence from al-Shabaab.
The Respondent submitted that this consideration weighs in favour of revocation. The Tribunal concludes on the evidence before it that RNVF would face prospects of real harm if he is returned to Somalia, because of a combination of factors, his long period of absence and lack of familiarity with the local conditions, the perception that he will be from a western country and, to some extent, his late father’s former role in the military and a past government. The weight attributable to the last is difficult for the Tribunal to quantify, but the Applicant’s evidence was at least corroborated by his mother’s evidence that a return to Somalia would place him in peril, and the Tribunal is satisfied that is the case.
Although RNVF’s evidence is that he does not currently experience the symptoms of mental ill-health, the evidence of Dr Carne, based on his assessment and also on reviewing the earlier report of Dr Cidoni, that there is a settled diagnosis of PTSD for the Applicant is preferred. The Tribunal notes that the CIR records (paragraph 2.11):
The Provisional Constitution grants the right to access healthcare and clean potable water. In practice there is no functioning national health system, and access to healthcare services is severely limited. According to UNICEF, only 45 per cent of the population has access to clean water, and only 25 per cent has access to adequate sanitation.
The Tribunal considers that as a person with a chronic mental health condition, RNVF would be especially vulnerable to personal harm if he is repatriated; it would not seem on the authoritative material before the Tribunal, that any adequate support would be available to him in Somalia. Consequently, the likelihood of his PTSD symptoms resurfacing would seem to me to be real. This would be with a backdrop of no family support and with a history of torture and trauma.
Although the Tribunal is somewhat sceptical about some of the claims that RNVF made in his evidence, particularly his Munchausenian claim of jumping off a five-storey building as a child as a suicide attempt, which he reiterated in his evidence. There is sufficient consistency in his life story over various interviews with Department officers and health professionals for me to be satisfied that he faced significantly traumatic experiences as a child in both Somalia and in camp in Kenya, and that these have etched onto his consciousness and affected his subsequent conduct, including as one of the drivers of his criminal offending.
The Tribunal finds that this consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
Consideration: Extent of impediments if removed (paragraph 9.2)
The Direction requires the Tribunal to consider the extent of any impediments the Applicant may face if removed from Australia to Somalia in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country; taking into account his age and health, any substantial language or cultural barriers and any social, medical and economic support available to him.
It would seem to the Tribunal that RNVF would face a range of impediments if he is repatriated. His knowledge of the local language is limited, and his evidence was that he often spoke to his sisters to get them to convey information to his mother, because he was not fluent in Somali. His mental health condition, while on evidence, is currently in remission, could, on the evidence of Dr Carne, become florid in an environment which revives memories of trauma and threatening experiences, which would be “likely to lead to a rapid deterioration in his mental health”. The Tribunal finds this is an impediment exacerbated by the lack of a functioning health system, as also referred to above, in terms of Australia’s protection obligations.
The Tribunal finds that this consideration weighs relatively heavily in favour of revoking the mandatory cancellation of the visa.
Consideration: Impact on victims (paragraph 9.3)
The Direction requires the Tribunal to consider the impact of the cancellation of the visa on members of the Australian community, including victims of RNVF’s criminal behaviour, where that information is available.
The Tribunal interprets this to mean, first, that a victim of a non-citizen’s offending must be aware of the immigration action taken by the Minister or delegate and, second, that they must have expressed a view that is before the decision-maker. There is no such evidence before the Tribunal, so this consideration weighs neutrally.
Consideration: Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The Tribunal must consider the impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely. I must have regard to how long RNVF has resided in Australia, giving less weight where he offended soon after arriving in Australia and more weight to time he has spent contributing positively to Australia.
RNVF’s immediate family on the evidence all resides in Australia: his mother, his two sisters, his two brothers, two aunts, and the children of his siblings. While the evidence is that soon after his arrival in Australia, owing to his conduct, RNVF became a ward of the State and he has only lived with his family for very brief periods after that time, otherwise being in youth hostels, youth training centres, prison or immigration detention, with short periods in the community.
There appears to have been a rapprochement with the family, and the Tribunal accepts the evidence of Ms KM, Ms KF and Ms KI that they would be significantly affected if RNVF was deported. The Direction requires the Tribunal to consider ascribing less weight to this sub-consideration where the non-citizen began offending soon after his arrival in Australia, which is the case in respect of RNVF, and more weight to time the person has spent making a positive contribution to the community. In his personal circumstances form (GD, p 153) dated 2010 the only employment RNVF recorded was two and a half months working as a cook at a takeaway outlet in Melbourne. Any positive contribution RNVF may have made during his time in the community is negligible on the evidence, and significantly overshadowed by his litany of offending and his long periods in custody.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
This part of the Direction notes that, in assessing impact on Australian business interests, an employment link would generally only be given weight where the decision under review would ‘significantly compromise the delivery of a major project, or delivery of an important service in Australia’. I find this is not relevant in RNVF’s case and this sub-consideration therefore weighs neutrally.
The Tribunal finds that the overall consideration weighs in favour of the Applicant because of the effect on his immediate family if the cancellation of his visa is not revoked.
OTHER RELEVANT CONSIDERATION
Counsel for the Applicant made submissions on the effect on RNVF if the decision not to restore his visa is not revoked. During the hearing, reference was made to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021, and how that might affect RNVF’s circumstances. Mr Guo submitted that the Tribunal should have regard to it, given that enactment was imminent.
In fact, this Bill became an Act with the Royal Assent on 24 May 2021 and commenced on 25 May 2021.
It would seem to the Tribunal that the effect of the new provisions being inserted into the Act by this legislation is that it removes doubt that RNVF would not be removed from Australia in breach of this country’s protection obligations. As mentioned above in these reasons, RNVF made clear in his evidence, that he knew that he was able, should his visa not be restored, to apply for a protection visa, and he would consider that “if that arose”. In the event that the Applicant did make such an application, the Minister would be required to consider and make findings about any claims he makes and, under new section 36A of the Act, the Minister will have to record a finding about the protection criteria as it relates to the Applicant. If the Minister makes a protection finding, new section 197C(3) of the Act provides that the removal power is not engaged.
In this matter, the Tribunal is addressing the question as to whether there is another reason to revoke the cancellation of RNVF’s visa. It is manifestly not the present task of the Tribunal to consider whether the Applicant fulfils the criteria for the grant of a protection visa. While any findings at this stage that are made about Australia’s international non-refoulement obligations might inform such a future application, the Courts have consistently held that the Tribunal is not here, in addressing the discretion available in section 501CA of the Act, making the sort of detailed assessment that is made when a non-citizen applies for a protection visa.
The question before the Tribunal is whether there is another reason to exercise the discretion available in section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of a visa. The visa has already been cancelled by operation of law, because of the unlawful non-citizen’s ‘substantial criminal record’, which caused him to fail the statutory character test. The question before the Tribunal is not: ‘if the mandatory cancellation of the visa is not revoked, whether the outcome will be that the Applicant is in prolonged or indefinite detention’. The disposition of RNVF in a case where the decision is affirmed is not within the responsibility, nor indeed the control, of the Tribunal.
DFTD v Minister for Home Affairs [2020] FCA 859 is apposite in RNVF’s case. In that case, Snaden J said, at [50-53]:
In this case, prolonged immigration detention—leaving aside the uncertainty inherent in that phrase—is not a prospect that arises as a statutory or legal consequence of the Tribunal’s Decision. Even if it were, it is not, on the strength of Le, a consequence to which the subject matter, scope and/or purpose of the Act required, by implication, that the Tribunal give consideration before making its decision under s 501CA(4) of the Act. The prospect of prolonged detention, if it exists at all, exists contingently upon circumstances unrelated to the Tribunal’s Decision.
Chief amongst those circumstances is that the applicant may apply—or, at the time of the decision, could apply—for a protection visa. In the context of such an application (assuming one were made), regard would be had to the circumstances that the applicant nominates as the source of the non-refoulement obligations by which he is covered: see Greene v Assistant Minister for Home Affairs [2018] FCA 919 (Logan J) (and, in particular, his Honour’s consideration—at [18]-[19]—of Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Flick J)). That being so, there is no warrant for supposing that the subject matter, scope or purpose of the relevant statutory provisions require, by implication, that the exercise or non-exercise of power under s 501CA(4) of the Act be conditioned, in this case, upon consideration of those obligations. Given that it is those obligations (and their interplay with government policy) that was said to create the prospect of prolonged immigration detention in this case, I cannot see (and was not alerted to) any reason for supposing that the subject matter, scope or purpose of the relevant statutory provisions require, by implication, that the exercise or non-exercise of power under s 501CA(4) of the Act be conditioned upon consideration of that prospect (whatever it might be). This is not the first time that this court has reasoned in that manner: see BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153, 176 [85] (Bromberg J).
I should return to tackle the indefinite nature of “prolonged detention”. Counsel for the applicant described the concept as detention “…without a known end date” and “…until a solution is found”. Respectfully (and appreciating, as I do, the predicament in which counsel found himself, having accepted that “indefinite” detention was not in prospect), “detention without a known end date” is another way of saying “indefinite detention”. Detention “until a solution is found” is only slightly more helpful. The reference to a “solution”, in the present context, is a reference to the realisation of a state of affairs by which the applicant, having failed to have the Cancellation Decision revoked, might be removed from immigration detention. In most cases, that occurs by means of removal to the former visa holder’s country of origin. Sometimes, it occurs after the exhaustion of judicial review processes (including appeals), many months—and sometimes much longer—after the non-revocation decision is made. In this case, the applicant’s removal from immigration detention could result from the applicant’s removal to a country other than Indonesia or from the granting to him of a protection visa. If circumstances permit (or, perhaps more accurately, change), it might result from his return to Indonesia (unlikely though that presently seems). It could, of course, result from a beneficial re-exercise of the power under s 501CA(4) of the Act, were the Tribunal’s Decision to be set aside.
Howsoever a “solution” manifests in any given case, there is always a period following the non-exercise of the power conferred by s 501CA(4) of the Act during which the non-citizen will remain subject to immigration detention. Where (as occurs frequently) review or appeal rights are engaged, that period can be more than trivial. There is nothing about the subject matter, scope or purpose of the relevant legislative provisions that, by implication, conditions the non-exercise of the power conferred by s 501CA(4) of the Act upon prior consideration of the likelihood that a former visa holder will be detained for a lengthy period whilst those processes play out.
(Emphasis added)
CONCLUSION
In terms of the four primary considerations set out in the Direction, the Tribunal has found that the primary considerations relating to the protection of the Australian community and the expectations of that community weigh heavily against revoking the mandatory cancellation of RNVF’s visa. The primary consideration relating to the best interests of minor children weighs very marginally in favour of the Applicant. The other primary consideration is not relevant.
Of the other considerations, the consideration relating to Australia’s international non-refoulement obligations weighs in favour of RNVF, and, I have found, heavily so. The considerations relating to the extent of impediments if removed also weighs in his favour, relatively heavily so. The consideration relating to impact on victims is not relevant. The consideration relating to links with the Australian community weighs in his favour.
The Tribunal has considered all the considerations cumulatively, and also the other relevant factor relating to the prospect of prolonged detention, which because any non-citizen is entitled, in the Tribunal’s view, to certainty in terms of their immigration status, weighs in favour of RNVF.
However, in this case the Tribunal is satisfied that the protection of the Australian community and the expectations of the Australian community are considerations that are determinative. RNVF has committed around 100 offences, several of them violent and a handful of them very violent. He has continued to offend despite a range of corrective tools being applied by the Courts and despite undertaking several rehabilitative courses. The trauma of his early life and his alcohol abuse and drug-taking has been a significant factor in his offending. His mental ill-health has also been an ingredient in some of his offending. However, his offending is so egregious that the Tribunal is satisfied that the discretion available in section 501CA(4)(b)(ii) of the Act is not enlivened, and therefore the decision under review is the correct and preferable decision.
DECISION
Under section 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.

I certify that the preceding 227 (two hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 28 May 2021

Dates of hearing:

20 and 21 May 2021

Counsel for the Applicant:

Mr Min Guo

Solicitors for the Applicant:

Victoria Legal Aid

Advocate for the Respondent:

Mr Ned Rogers

Solicitors for the Respondent:

The Australian Government Solicitor

Dates of hearing:	20 and 21 May 2021
Counsel for the Applicant:	Mr Min Guo
Solicitors for the Applicant:	Victoria Legal Aid
Advocate for the Respondent:	Mr Ned Rogers
Solicitors for the Respondent:	The Australian Government Solicitor