RPQB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

RPQB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3644 (13 October 2021)
Division:GENERAL DIVISION
File Number: 2020/4849
Re:RPQB
APPLICANT

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

DECISION
Tribunal:Senior Member D. J. Morris
Date:13 October 2021
Place:Melbourne

The Tribunal affirms the decision under review.
.......................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – remittal by the Federal Court of Australia – cancellation of Class XB Subclass 200 (refugee) visa – applicant is Somalian citizen – substantial criminal record – applicant fails character test – whether there is another reason to set aside mandatory cancellation – consideration of ministerial direction – primary considerations – incidents of family violence – other considerations – non-refoulement obligations – special consideration relating to prolonged detention – strength of ties with Australia – extent of impediments if removed – decision under review affirmed
Legislation
Administrative Appeals Act 1975, s 33A, 35
Migration Act 1958, s 499, 500, 501CA
Cases
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister of Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441)
STZS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1140
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
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 on 28 July 1951; 189 UNTS 137 (Entered into force 22 April 1954)
Department of Foreign Affairs and Trade, DFAT Country Information Report - Somalia (13 June 2017)
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. 84 – Consideration of Protection Visa Applications (made 24 June 2019/commenced 25 June 2019)
Migration Act 1958 – Direction under s 499 – Direction No. 75 – Refusal of protection visas relying on section 36(1C) and section 362C(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)
Somalia Travel Advice & Safety Smartraveller – FOR DECISION
Senior Member D. J. Morris
13 October 2021
PROCEDURAL BACKGROUND

The Applicant in this matter first arrived in Australia in June 2011, with his parents as the holder of a Class XB (Subclass 200) Refugee visa. He is a citizen of the Federal Republic of Somalia. On 1 March 2019, this visa was cancelled under section 501(3A) of the Migration Act 1958 (‘the Act’) by a delegate of the Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, on the basis that the delegate was satisfied the Applicant had a ‘substantial criminal record’ as stipulated in the Act.
The delegate invited the Applicant to make representations as to why the mandatory cancellation of his visa should be revoked, as is permitted under section 501CA of the Act, if the decision-maker is satisfied there is another reason to revoke the cancellation. The Applicant did so. On 6 August 2020, a delegate of the Minister decided not to revoke the cancellation of the visa.
The Applicant sought review by this Tribunal, as he is entitled to do under section 500(1)(ba) of the Act. The learned Senior Member considering that application made an order under section 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) prohibiting the publication of the name of the Applicant and assigning the anonym ‘RPQB’. On 6 November 2020, the Tribunal decided to affirm the reviewable decision.
On 27 April 2020, the Federal Court of Australia issued an order by consent quashing the Tribunal’s decision and remitting the matter for determination according to law. This matter was constituted to me. This is the decision and reasons in relation to that fresh hearing of RPQB’s application.
HEARING
The hearing was on 11, 19 and 20 August 2021 by video-link, as is permitted under section 33A of the AAT Act. This was because of the current public health emergency. RPQB was represented by Mr Andrew McCowan of counsel, instructed by the Refugee and Immigration Legal Centre. RPQB gave evidence and was cross-examined by Mr Adam Cunynghame of Sparke Helmore Lawyers, representing the Minister. The Applicant’s mother, who will be referred to in these reasons as Ms MB, and his brother, Mr KG, gave evidence. Dr Nina Zimmerman, forensic and clinical psychiatrist, gave expert evidence. The Tribunal was assisted by an interpreter in the Somali language in relation to the evidence of Ms MB.
The Tribunal admitted the following documents into evidence:
·Volume of ‘GD’ documents lodged on 11 June 2021 (Exhibit R1);
·Volume of supplementary ‘G’, or ‘SGD’, documents lodged on 22 June 2021 (Exhibit R2);
·Tender Bundle by the Respondent lodged on 25 September 2020 (Exhibit R3);
·Applicant’s written statement dated 14 September 2020 (Exhibit A1);
·Letter of instructions and supplementary psychiatric report of Dr Nina Zimmerman dated 30 July 2021 (Exhibit A2);
·Letter from Inala Drug and Alcohol dated 22 July 2021 (Exhibit A3);
·Letter from Queensland Program of Assistance to Survivors of Torture and Trauma (QPASTT) (Exhibit A4);
·Letter from Rebecca Farley (Exhibit A5);
·Further statement of Ms MB dated 5 August 2021 (Exhibit A6);
·Applicant’s further statement dated 16 August 2021 (Exhibit A7);
·Additional statement of Ms MB dated 16 August 2021 (Exhibit A8);
·Closed circuit television footage (‘CCTV’) from November 2019 from Melbourne Immigration Transit Accommodation (‘MITA’) (Exhibit R4); and
·Addendum report dated 17 August 2021 of Dr Nina Zimmerman (Exhibit R5).
Section 500(6J) of the Act provides, that the Tribunal must not have regard to any document submitted in support of a person’s case unless a copy of the document was given to the Minister at least two business days before the hearing. The Tribunal has consistently interpreted that as meaning information presented to the Tribunal by an Applicant or an Applicant’s representatives, not by the Minister.
When the hearing convened on 11 August 2021, the Minister sought an adjournment to obtain CCTV footage of two incidents said to involve RPQB since he has been in immigration detention. The Minister’s representative submitted that the footage may be probative of claims the Applicant had made when he was interviewed by Dr Zimmerman for her psychiatric report. Mr McCowan opposed the adjournment. The Tribunal noted that Dr Zimmerman recorded that, in relation to one of the alleged incidents, when she had told RPQB there was allegedly CCTV footage of him spitting or throwing something at a nurse, the Applicant had responded to her he ‘would like to see the footage because he would never do such a thing’ (paragraph 65 of Dr Zimmerman’s 30 July 2021 report, Exhibit A2).
The Tribunal decided that the CCTV footage was potentially important information in an assessment of RPQB’s conduct in immigration detention, and so granted the adjournment. I made clear to Mr McCowan that I would also allow him, if he chose, to consult further with Dr Zimmerman, whom he had indicated would be called to give evidence as an expert witness, and to consider any further material he might want to submit. In Uelese v Minister for Immigration and Border Protection [2015] HCA 15, Nettle J stated at [113]-[116] that each day the Tribunal convenes for a hearing should be construed as ‘a separate hearing’ in respect of sections 500(6G) and (6J) of the Act. This would enable additional material to be provided to the Respondent (and the Tribunal) before the next hearing day of this matter.
A directions hearing was held on 16 August 2021. At this hearing the Respondent advised that CCTV footage of one of the incidents had been obtained, and a copy served on the Applicant. Footage of the second alleged incident at the nurses’ station was not available.
The solicitor for the Applicant advised they would raise no objection to the CCTV footage being tendered by the Respondent when the hearing reconvened. The Applicant’s representative advised that he had asked Dr Zimmerman to view the footage and provide an addendum report. That addendum report was received by the Minister later than the two-business day period before the resumption of the hearing on 19 August 2021, so could not be tendered by the Applicant on that day. As the report was produced because of additional evidence the Minister had tendered, I acknowledge the conduct of the Minister’s representative, consistent with the obligations of a model litigant, in tendering that report for the Tribunal’s consideration.
LEGISLATIVE FRAMEWORK
What is the matter for the Tribunal to decide?
Section 500(1)(ba) of the Act says 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. In this task, the Tribunal is not reviewing the decision of the delegate. The Tribunal is making a fresh decision based on the law and the information before it. In addition, both 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.
There are two questions to decide. The first is whether RPQB 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 RPQB does fail the character test, there is a second question for the Tribunal to consider – is there ‘another reason’ the cancellation of his visa should be revoked.
The mandatory cancellation of the visa
Does the Applicant have a ‘substantial criminal record’?
An Australian Criminal Intelligence Commission report dated 2 December 2019 (GD, p 33) was before the Tribunal. This report records disclosable Court outcomes of RPQB. On 19 March 2019, at the District Court of Queensland, he was convicted of the offences of Assaults occasioning bodily harm and sentenced to imprisonment for 12 months to be released on parole six months from the Court hearing date.
The report also discloses a large number of previous offences, commencing in October 2014 and resulting in RQPB appearing before the Courts on 17 separate occasions. It is not necessary for me to tote up the number and length of custodial sentences in considering whether section 501(3A) of the Act is satisfied, because the threshold of the Applicant being sentenced to a period of 12 months or more is met.
I find that RPQB does not pass the character test under section 501(3A)(a) of the Act through the operation of subsections (6)(a) and (7)(c). I am satisfied that he has a ‘substantial criminal record’ because he has been sentenced to a term of full-time imprisonment for a period of 12 months or more. That satisfies the ‘first limb’ required for the mandatory cancellation of a visa under this section of the Act.
The report also records that on 29 August 2018, RPQB was convicted in the District Court of Queensland of the offence of Assaults Occasioning Bodily Harm – Domestic Violence Offence and sentenced to 18 months’ imprisonment. His visa was cancelled on 1 March 2019, so I am satisfied, and the parties did not dispute, that the Applicant was serving a sentence of imprisonment on a full-time basis at the time his visa was cancelled (section 501(3A)(b)), which satisfies the ‘second limb’ of the subsection.
The 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. On 8 March 2021, the Respondent made a direction under section 499, Direction No. 90. Direction No. 90 (hereafter referred to as ‘the Direction’) commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is ‘another reason’ to revoke the mandatory cancellation. There are no accrued rights, which means the Tribunal must consider the Direction currently in force, not its predecessor which was the Direction relevant to the previous proceedings RPQB had before the Tribunal.
The Direction requires that some stipulated considerations must be taken into account, where they are relevant. However, the Direction does not contain the Tribunal’s task; it must look at any other relevant factor in the circumstances of the case.
OPENING STATEMENT OF THE APPLICANT
Mr McCowan said that the issues are outlined in the Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’) and submissions in reply. He said it was not disputed that RPQB fails the character test because of his substantial criminal record.
He stated that there is a factual dispute between the parties as to the age of the Applicant. Some documents refer to him as having a date of birth date of a named day in January 1995, others refer to a date of birth on a named date in November 1997. RPQB submits that the 1997 date is the correct one.
Mr McCowan submitted that there is a dispute between the parties about some of the incidents reported to have occurred in immigration detention, in particular an incident on 2 May 2019.
Mr McCowan said while it was accepted that RPQB had been convicted of serious offences, he has also taken steps to rehabilitate. It was also submitted that the primary consideration in the Direction relating to the best interests of minor children weighs in favour of RPQB, as do the impediments he would face if removed to Somalia and his ties with Australia. Mr McCowan submitted that RPQB is owed international non-refoulement obligations.
ORAL EVIDENCE AT THE HEARING
The Applicant
RPQB said he was born in the Gedo region in Somalia and his mother told him he was aged 2 when the family left Somalia and went to a refugee camp in Eritrea. His mother told him they had fled the country ‘because of the war’.
RPQB said his memories of the refugee camp were that violence was normal and that he ”saw things a kid shouldn’t see”. He said he remembers soldiers firing guns into the air or the ground for entertainment, which was frightening.
RPQB said he was living at the Eritrea camp with his mother (Ms MB), his stepfather and his brother (Mr KG), but that his brother left the camp around 2008. He clarified that the person he calls his father is not his biological father but is his stepfather. The Applicant said that after his brother left he had no ”protector” and became a target for older children and liable to get into fights. He said that he attended a school in the camp and learned to speak English.
RPQB said he came to Australia in June 2011 when he was aged 13. He said he has always celebrated his birthday on a particular date in November, and believed he was born on that day in 1997. He said he only became aware that some documents recorded his birthdate as a named date in 1995 when he was in Australia and attending school. He said he commenced school in Australia in grade nine and found it difficult because he could not fluently speak English and his fellow students were older.
The Applicant said he had seen the national criminal history check in the GD and accepted it was correct. He said he had been to prison on several occasions and felt he had disappointed his family and himself. He said he blamed only himself.
Mr McCowan took RPQB to a Queensland Police court brief of an incident that occurred on 9 April 2015 (GD, p 226). Mr McCowan noted that the report said that the Applicant had assaulted two females. The report recorded that he threw the first female to the ground and ‘began to punch, and kick in the body, head and face’, and when the second female intervened, he then ‘punched to the left side of her face…knocking her to the ground’. RPQB said that he only assaulted ‘one girl’ at the time. The report records that he chased one victim and pulled her hair. RPQB said that was not correct.
Mr McCowan said that as a result of the incident, RPQB pleaded guilty to assaulting his wife, ‘Ms CW’. He responded: “It broke my heart. I feel really bad about it. Violence against anyone is not acceptable, particularly against a partner”. He said he felt very ashamed for hitting a woman.
Mr McCowan then took RPQB to a Queensland Police court brief of an incident that occurred on 30 April 2017 (GD, p 276). RPQB said he had read the report. Mr McCowan noted that the report records that he had dragged his wife through the house, which RPQB denied. The report records that the Applicant told his wife, who was pregnant at the time, that he “will kick that kid out of you…”. RPQB said he did not say that, “I am not a monster”. RPQB said that he did not agree with various parts of the police report but did accept what the Judge said in passing sentence. He said he felt “ashamed because I hit my pregnant wife”.
The Applicant was asked if he had offended against his mother. He said: “Yes. I feel very embarrassed, smashing Mum’s house”. He said he had spoken to his mother and asked for forgiveness.
RPQB accepted that he had affected people important in his life and had hurt people he loves. He said he can provide no explanation for his behaviour.
In terms of courses he had undertaken, RPQB said he had undertaken a men’s behavioural change course in August 2020 when in immigration detention lasting around six or seven weeks, with sessions twice a week. He said he had learned to control his emotions and how not to relapse. He said the courses have taught him how not to drink, how to control his anger and how to let things go.
He said he had also undertaken a life skills course which helps him understand what triggers his anger and how to avoid it and walk away from situations. He said he had learned how to say ‘no’ to alcohol. He said that he felt “alcohol was the gasoline for the fire, and I know how to look for professional help.”
Mr McCowan asked RPQB whether he plans to engage in courses if released into the community. The Applicant replied:
I need help with trauma. I need professional help to lose memories of the refugee camp. I also need drug and alcohol assistance through Inala Drug and Alcohol and QPASST for the trauma. Also, Mater for counselling.

Mr McCowan noted that the Applicant had re-offended and asked what was different now. RPQB said: “I am older and more mature. I was a teenager. I didn’t understand how serious the situation was. Now I am a grown man and more mature.”
He said he had not really looked for preventative courses before, because “I rushed and got married. I was too young. My brain wasn’t developed. I was ‘young and dumb’.”
Mr McCowan asked RQPB when he first drank alcohol. The Applicant said when he was aged 16 or 17. He said he came to realise it was problematic when he was in gaol. He said he had not drunk alcohol for almost three years.
When told there was a suggestion in the SGD that he has been drinking in detention, RPQB said he had not had a single drink in the last three years. He said he had been offered home brew in detention but had said ”no”. He stated: “sometimes they pressure me, and I tell them that alcohol has ruined my life, they leave me alone. I’m the father of a child now.”
RPQB confirmed that he has a son, ‘H’ who was born in 2017. He said he was in prison at the time of the birth and it broke his heart to miss the birth. He said he had not seen his son while in prison both because H was too young to visit and there was a domestic violence order against the Applicant. He said he speaks to H through video calls. H stays with the Applicant’s mother when his own mother is working, because Ms CW undertakes shift work at an aged care facility.
When asked directly by the Tribunal whether there are any Court orders in place relating to the current custody of H, RPQB said that he had been told when he is out of detention, he can organise shared custody.
In respect of his wife, Ms CW, the mother of H, RPQB said she is Samoan and has family in Samoa but not in Australia, so is reliant on his own mother to help care for H.
RPQB said if released into the community his plan was to live with his mother for about six or seven months and then look for his own place with his son, either in the same suburb or the next one. He said he needed to be close to his mother because he assists her by interpreting documents and driving her to appointments.
In respect of his mother’s health, RPQB said that Ms MB had been sick. RPQB said his brother lives in the same suburb with his family, including five children, spanning ages between six and two. He says he talks to his brother two or three times a week. RPQB said his brother had come to Australia in 2017 after the rest of the family had settled here.
In terms of employment, RPQB said he had some experience working in a Halal meat factory and had done some fruit picking, but his dream was to be a mechanic and he had completed a certificate II in ‘automotive’ (which the Tribunal took to be as an automotive mechanic), but wanted to progress and undertook a certificate III.
RPQB said he had no memories of Somalia. He said he never met his biological father and does not know his whereabouts but has been told he is in Somalia. He said his mother has told him he has an aunt in Somalia, but he has never met her or been in contact with her.
When asked why he did not want to go back to Somalia, RPQB responded: “My life is in Australia. My family is here. My son is here. My life is here. I have heard it is a war zone and have heard it isn’t safe.”
When asked why he says Somalia is not safe, RPQB said:
My Mum said the reason we fled was because of the war. I have heard it isn’t a safe place to go back to. I believe I would be in danger if I go back. I come from a western part of the country. I used to post on Facebook with girls and so on. If anything was found out, Al Shabaab.
Mr McCowan asked RPQB what he knew of Al Shabaab. He responded: “I know they are bad people”. Mr McCowan asked the Applicant if he felt he would be targeted. He responded: “No. They don’t know me. But if they question me about Australia.”
When asked how others would know he was from Australia, RPQB said: “My accent and the way I dress”. RPQB said he can speak the Somali language and when he speaks to his mother in Somali he knows he has an accent.
Mr McCowan asked RPQB whether he knows the attitude to alcohol in Somalia. RQPB responded: “You serve a long time in prison or they will kill you.”
When asked how this would relate to him, the Applicant responded: “Because of what I have done in the past. I used to drink alcohol and party.”
Mr McCowan asked whether the Applicant would know where to go to for help in Somalia. He responded: “If I landed in Mogadishu I would have to talk to the first person on the street. I don’t even know where my home area is.”
Mr McCowan noted that some Somalians who have settled in Australia safely travel back. RPQB replied: “People with money go back. They go to a safe house and so on. I don’t have that.”
Under cross-examination, Mr Cunynghame asked the Applicant why he had not corrected his date of birth in Court. He replied: “When we first came to Australia, my Mum tried to correct it, but we didn’t know how to do it, so we left it as it was.”
Mr Cunynghame asked RPQB whether he remembered the Immigration Department (‘the Department’) previously decided not to cancel his visa after the Applicant had made representations. RPQB said he did remember that, and in particular remembered he made submissions (at GD, pp 331-332) that he would keep out of trouble and wanted to get his life back together, get a job, care for his mother, stay out of prison and obey the law. RPQB said: “At the time I did do these, willingly, with my heart. I tried, even though I failed.”
Mr Cunynghame asked RPQB whether he remembered missing medical appointments, as recorded in the SGD. He responded: “Yes, I said that to Dr Zimmerman. I feel I don’t need to see them because I feel completely ok. You see them if you don’t feel mentally ok.”
RPQB agreed that he told Dr Zimmerman that he would seek out mental health assistance if he felt stressed or worried. RPQB responded: “Yes. If feeling well, I don’t know why I would see them.”
RPQB said if released into the community he would see mental health professionals if he was not fit and healthy, but that treatment for his trauma is separate. RPQB was taken to an Incident Detail Report (SGD, p 36) where he lit a cigarette using a toaster at the Immigration Detention Centre (‘IDC’), and when challenged by an officer used obscene language. The Applicant said some of the report was accurate but that he did not say the words written down. He said the report was otherwise accurate. He said it was at midnight and another officer had said that he could use the toaster after midnight. He explained that usually cigarettes can be lit from a heated pole in an outside area. Matches and lighters are prohibited at the IDC.
Mr Cunynghame then asked RPQB about an incident captured on CCTV footage, a tape of which had been provided to the Tribunal and admitted into evidence.
RPQB was asked if he accepted he threw a punch four times. He responded:
Yes, after watching it, I realize that. I was talking to Mum and the other guy was watching a movie. He rudely told me to get off the phone. He got frustrated. He said something about my Mum and flicked a cigarette at me. I realize I should have acted differently.
RPQB said he agreed he had told Dr Zimmerman that the other detainee threw a cigarette and “to be honest, I didn’t remember throwing a punch.”
When asked directly by the Tribunal whether he remembers officers coming into the area at the time of the incident, the Applicant said: “Yes. They took each of us away to cool down. They then put us together and we shook hands. We used to play pool together until I was moved to Yongah Hill.”
Mr Cunynghame then took RPQB to an incident at the IDC dispensary (SGD, p 48). The Incident Detail Report dated June 2020 stated:
At approximately 2053 hours on 17^th June 2020, detainee [RPQB] was seen on CCTV footage in the medical dispensary throwing an unknown object through dispensary hole towards an International Health and Medical Services (IHMS) Nurse. At approximately 2053 hours on 17^th June 2020 detainee [RPQB] spits at the direction of the IHMS nurse and the spit appears to hit the window between the nurse and the detainee. At approximately 2053 hours on the 17^th June 2020, Emergency Response Officers escort detainee [RPQB] out of the dispensary. More information to follow.
The Applicant was asked what occurred and he responded:
The day before I asked for eye drops. I went to the doctor. He said they had already been prescribed. A different nurse then said that I had to see the doctor. We had a little bit of an argument. I have never thrown anything at a nurse or spat towards a nurse. My eyes were hurting.
RPQB was taken to an Incident Detail Report relating to a fight in February 2021 at the IDC (SGD, p 70) which recorded that while securing the Applicant an officer noticed a “makeshift weapon (shiv)” in his possession. It was taken from him and placed in an evidence bag. RPQB responded:
I remember it well. There was a riot on Christmas Island. I was scared myself. I grabbed some metal and was holding it myself. The officers said they saw a handmade weapon. They then asked why I had it. I told them to scare people who would attack me. They then put me in segregation and moved me. I was not involved in the fighting. I agree I was there and had the shiv but don’t agree I was fighting.
Mr Cunynghame reminded RPQB of earlier statements he had made (GD, p 392) that he had learned about what to do when anger is building up. Those statements were in September 2020, but these incidents are in February 2021, so why did the Applicant have a shiv in his possession. RPQB replied:
Yes. It is correct I said that. I have shown I did not get involved in the fight. The weapon was something I got from a cage as I feared for my life. I managed to avoid getting into fights. I willingly showed the officers my shiv. It was on my belt, obviously.
Mr Cunynghame said that RPQB had said he would wave it to scare others away. He replied: “Yes. So, they won’t come at me. Even if I did, I wouldn’t use it. I have never stabbed anyone in my life. The reason is so that they would see it and back off.”
RPQB said he would “drop the knife” (as he called it) if they physically punched him and would try and get them off him another way.
Dr Zimmerman wrote in her report that RPQB had the weapon because three men were threatening him; he was asked what they were doing. RPQB responded: “I explained to her the men who were fighting were threatening me. They were calling me names.”
RPQB said that he had been threatened that day and found the piece of metal on the floor and kept it later the same day. He said, “they threatened me; I got the vibe.”
The Applicant was taken to another Incident Detail Report dated April 2021 at the Christmas Island IDC (SGD, p 83). The report records that RPQB assaulted another detainee. RPQB said that two detainees were fighting, and “we’ tried to break it up”. He said that he had tried to separate the two who were on the ground fighting. He said he had watched the fight for two minutes before deciding to separate them.
Mr Cunynghame asked whether it would be a better option to locate an officer. RPQB said that if he had done that, he would have been labelled as a rat or a snitch. “In the outside world I would have called the police; in here I am scared.”
RPQB was taken to a statement he made in July 2020 (GD, p 99) where he refers to an incident at Wolston Correctional Centre in May 2019 and wrote:
I missed my son very much and was waiting to receive his photographs from my mother. I became frustrated and acted out because of this, for which I apologise. Another prisoner became involved in the incident and attacked prison officers, which was out of my control. I was not charged with any offences arising from this matter.
RPQB was asked to expand on what occurred. He responded:
A week before, Mum had sent me a photo of my son. The prison had sent the photo back and said it needed to be endorsed with the signature of a JP. Mum did that. She re-sent it. I went to get the photos. They said they weren’t there. I threw a paper at the officer. The officer told me to get on the wall. Another inmate came in and started hitting the officer. I went to a punishment unit.
Mr Cunynghame asked RPQB if he would accept that there have been repeated occasions in detention where home brew has been found in the Applicant’s room. He responded: “Yes, but others live in my room as well. It is not my problem.”
When pressed as to whether other detainees around him were making home brew and drinking it, RPQB said: “I had nothing to do with it. I am not going to tell the officers.”
He reiterated that he stopped drinking after the Department decided on a previous occasion not to cancel his visa but started again after his relationship with his wife broke down.
Mr Cunynghame took RPQB to the Queensland Police court brief, Mr McCowan had earlier referred him to, GD, pp 276-277, which refers to an April 2017 incident involving his wife. RPQB said he agreed with the contents of the police report as set out on GD, p 276 and the first three paragraphs of GD, p 277 but did not agree with the later commentary. He described the circumstances that led up to the offending in his oral evidence at the hearing:
In the morning we went to a wedding. We went happily and spent the day there. My wife wasn’t well. She didn’t want to stay. She walked home. I waited an hour and then took some leftover food home. I remember telling her to heat it up. She said, ‘you go and heat it up yourself’. I threw a cushion at her. She threw a remote at me. I punched her. She ran off and police were called. All of this was dropped in the District Court.
Mr Cunynghame asked RPQB whether he punched his wife several times. He responded: “I was found guilty on one punch.”
When asked directly by the Tribunal did he punch his wife more than once, RPQB replied: “No. One punch. I deeply regret it. I think you should go more on what I was found guilty in Court. I will never agree that I punched her more than once.”
When asked whether he had been drinking that day, RPQB said he had not, but he had been drinking the day before. He said he and Ms CW had been attending a Somalian wedding and no alcohol was served at the celebrations.
RPQB was then taken to another police court summary (GD, pp 282-283) about an incident in November 2017. The Applicant said he agreed it was a fair summary. The report related to an accusation that RPQB unlawfully assaulted a person, ‘R’. RPQB said he knew R and had known him from the refugee camp. They were not friends, but acquaintances.
Mr Cunynghame asked RPQB about custody arrangements for H with his wife, Ms CW, and whether they could not come to an agreement. He responded: “In 2018 we went to mediation. We couldn’t come to an agreement. Some things were faith related. They decided to send it to the Court. Then I got locked up.”
RPQB was asked whether the dispute was over days of care, faith and schooling. He replied: “Yes. Also because of the domestic violence, they would rather let the Court become involved, if I remember well”. RPQB said that those issues in relation to the care of H are no longer in dispute.
RPQB said he believed that the Intervention Violence Order applying to him had now expired but if he needs to speak to his son, he does so through his own mother.
RPQB was asked where he would be likely to return to if he went back to Somalia. The Applicant responded: “I don’t know. I assume they would drop me at Mogadishu airport.”
When asked whether he would apply for a protection visa, RPQB replied: “I don’t know. I will have to speak to my lawyers about that.”
In response to direct questions from the Tribunal, RPQB confirmed he had worked in a Halal meat processing factory for between six and eight months in 2016 or 2017. He had worked casually on farms, fruit-picking, and began an automotive apprenticeship. He said he had not undertaken any courses in prison; RPQB said he was on the waiting list but prisoners serving longer sentences get priority. He said he did some welding in gaol, making ladders and chairs.
When asked directly by the Tribunal when he married Ms CW, RPQB said they married in October 2016 and separated at the end of March 2017 but had not divorced. He said they separated just before his son, H, was born. He said he did not speak to his wife by phone or video.
Ms MB
The Applicant’s mother gave evidence. She said she was born in Somalia in 1968 in Gedo region, and left the country in 2001 because of a tribal war. She said she fled the country with her two sons, Mr KG, and RPQB and went to a camp in Eritrea. Mr KG left the camp in 2008 and went to Italy.
Ms MB said that RPQB was born on a named date in November 1997. When asked why the records have his birthdate as a named date in January 1995, Ms MB said: “It was the interpreter’s fault. I didn’t speak the language when asked in Eritrea. When I told the lady it was wrong, she said you can go to the back of the queue if you continue. So, I shut my mouth.”
Ms MB said she had tried to correct the birthdate of RPQB in Australia. She said she had told their doctor and RPQB’s school and a case worker. She said she had always celebrated RPQB’s birthday on the date in November.
Ms MB said she was aware that the Applicant has been in trouble with the police and had been in custody since 2018. She said she spoke regularly to him, by phone or by video call.
The witness said she had seen a lot of change in RPQB, and felt he was getting better in asking how others are doing and in the language he uses. She said “now he respects me. He is sorry about what he has done to me, and sorry for what he has done before”. Ms MB said that RPQB had apologised to her for what he had done in the past.
Ms MB confirmed that RPQB could live with her if he is released into the community and she would support him in any further courses he wants to undertake. She said her other son, Mr KG, lives close by and is willing to assist the Applicant by taking him to appointments, to the local mosque and to courses.
In respect of RPQB’s son, H, Ms MB confirmed he is now four years of age. She said RPQB talks to his son whenever he calls, and H is with her. Ms MB was asked whether it would affect H if RPQB was sent back to Somalia. She replied: “Yes, he would be left with no father. It will be a worry for us; going to a country he doesn’t know where there is fighting.”
Ms MB said that RPQB also talks on video calls to the five children of his brother, Mr KG, and is particularly close to one of them, a twin who sometimes stays with her.
Ms MB said she would be scared to return to Somalia, for the same reason she left the country in the first place, because it is dangerous. She said there used to be one relative in Somalia, a sister, but she no longer knows her whereabouts or whether she is still alive.
When asked about RPQB’s biological father, Ms MB said that she had divorced him while RPQB was yet unborn, and she had not kept any contact with him. She said she speaks only Somali with RPQB as she has not learnt English. Ms MB said she had never seen RPQB drinking alcohol.
Under cross-examination, Ms MB was asked about an incident in April 2015 when the police attended her house looking for RPQB, and eventually found him hiding in the laundry cupboard. Ms MB said she remembered the occasion. She said: “They came over. I didn’t know what they were talking about and they found him in there.”
When asked whether she remembered telling the police RPQB was not at home, Ms MB said: “Even now I cannot manage English. I don’t know what they were saying at the time.”
Mr Cunynghame asked Ms MB whether she remembers telling the previous Tribunal hearing (GD, p 571) that she told the police that she did not know where RPQB was. Ms MB responded, “No.”
Mr KG
The Applicant’s older brother, Mr KG, gave evidence. He said they left Somalia for refuge in Eritrea in 2001 because of the civil war at the time. He said he left for Italy in 2008 and subsequently emigrated to Australia in 2017, seeing his mother and brother for the first time since he had left Eritrea.

Mr KG said that he had established himself in Brisbane and is now well connected with the Somali community and knows much more how he could help RPQB. He said he would take the Applicant to the mosque and introduce him to a circle of friends who would be good for him. When asked why he would take RPQB to the mosque, replied: “The people at the mosque are free of drugs. They will be good counsellors and a good influence for him.”
Mr KG said he also wanted to take RPQB to anger management and drug counsellors. Mr KG said that RPQB respects him as an older brother:
Not like before when he was on drugs. Since he’s been in gaol we have been talking. He has changed. I know he is going to listen to me. One of the problems was the alcohol. The other was his circle of friends. Both of those are now out of the picture. I have noticed a lot of change, because he is not drinking and there are no drugs in his system anymore. He does his prayers. He now listens. He has changed a lot.
Mr KG said they talk every second day. He said he was aware that RPQB also talks to his son and to Mr KG’s children, especially the oldest. He takes his children to visit their grandmother, Ms MB, every Sunday and they talk to RPQB then.
When asked would it affect his children if RPQB is sent back to Somalia, Mr KG said: “It will affect the entire family, especially my Mum and his son. We will be worried about his safety. It will be dreadful for all of us.”
Dr Zimmerman
Dr Zimmerman gave evidence by telephone and confirmed she had written three reports relating to RPQB, in October 2020, and July and August 2021. She said she had first examined RPQB on 29 September 2020 by video. She said he was candid about his offending history, clarifying certain aspects but overwhelmingly accepted his offences.
Mr McCowan asked Dr Zimmerman what the Applicant’s general attitude was. She responded: “He was distressed by the assault on his pregnant wife and expressed remorse. He took responsibility. He acknowledged that alcohol aggravated the offending but didn’t provide an excuse”. She did not think he tried to minimise his offending.
Dr Zimmerman said she used the HCR20 assessment tool, which specifically addresses the likelihood of violent re-offending, and then brought her professional judgement to bear.
In terms of historical risk factors applicable to RPQB, Dr Zimmerman said there had been several episodes of violence against women, and one against a male. She said there had been several antisocial acts in the Applicant’s non-violent offending, and that he had problems with relationships and no sustained employment. Dr Zimmerman said there was a clear history of alcohol dependence but no evidence of any psychiatric condition measurable under the Diagnostic Statistical Manual (‘DSM’). She noted there had been a history of trauma but no personality disorder and a history of failing to comply with supervision.
Dr Zimmerman said that historical factors cannot change but can lessen in relevance. For instance, she said that the longer a person is off alcohol, the more likely they are to stay abstinent. Dr Zimmerman said she detected no preoccupation with violence and no refusal to attend treatment when it was available, which was demonstrative of insight into his needs.
Dr Zimmerman said that RPQB was aware that his anger management had been poor. She said he had a clear plan to live with his mother if released into the community and there was no indication he would be antisocial, with plans to engage with the local mosque and with a soccer club of which his brother is a member. She said Mr KG had found RPQB a job as a cleaner. Dr Zimmerman said that RPQB was therefore unlikely to face homelessness. She said she did have some concerns in her October 2020 report about his ability to deal with stress in the community.
Dr Zimmerman confirmed that she had assessed RPQB as a ‘low risk’ of reoffending. She said if relations deteriorated with an intimate partner or he resumed taking alcohol, both of these factors would increase the risk. Dr Zimmerman said she would never make an assessment that there is ‘zero risk’ when there is some risk of violent offending.
Dr Zimmerman said she accepted RPQB has abstained from using alcohol while in detention and noted that the home brew found was always in shared rooms and no further action had been taken against the Applicant by the IDC officers. In respect of missed mental health reviews, Dr Zimmerman said that these were routine reviews carried out by a nurse or a psychologist and it was not uncommon for a detainee to miss an appointment. She said RPQB had told her he would “reach out” if he felt he needed assistance. She noted that he was not refusing prescribed medication.
Dr Zimmerman was asked whether she had viewed the CCTV footage newly obtained and whether it changed her assessment. She said she had viewed the footage. She said RPQB had been adamant that he had not punched the other detainee, but it is now evident from the footage that he did swing a punch. Her view was it was a relatively minor incident and that he was provoked. She said reviewing the footage did not alter her finding.
Dr Zimmerman said that, bearing in mind the incident was 18 months ago, it was reasonable to conclude that RPQB was trying to “look good” in his account to her, but that did not change her assessment of his risk of violence.
When asked about the Applicant’s age, Dr Zimmerman noted that one judge had accepted the 1997 birthdate. She said if RPQB was younger, it would further reduce the risk of violence and that the only factor that had changed since her October 2020 assessment was the passage of time and a longer period where the Applicant has abstained from alcohol.
When asked about the effect of prolonged detention, Dr Zimmerman said that prolonged detention can be very harmful on a person, and indefinite detention was the most difficult of all because it brings with it a growing sense of powerlessness, a loss of self-agency and a loss of resilience.
Under cross-examination, Dr Zimmerman outlined the main causes of RPQB’s offending as: “Alcohol is a significant factor. Impulsivity associated with age and trauma background. Poor modelling with his stepfather.”
Dr Zimmerman said if there was evidence of repeated drinking of home brew (in detention), that would be a risk factor.
When asked about the February 2021 incident involving the shiv which was not included in her report, Dr Zimmerman said there were riots going on and RPQB told her he picked up the piece of metal and held it for self-defence. She said in undertaking an HCR20 assessment she was looking for frequent problems but did not feel this was a persistent matter. She said she would have a different view if RPQB had been in his room fashioning a weapon, rather than simply finding an item, as apparently was the case here.
Dr Zimmerman was asked about the incident reports in detention relating to assaults and asked to assume they had occurred, and whether that would raise a concern. She responded:
He has a history of violent behaviour. What would become a concern would be a frequent violent ideation or intent. There has been one major incident in a six-month period and a number of minor ones.
When asked about the April 2021 incident involving a fight and whether she was aware of it, Dr Zimmerman responded:
The Applicant said there was a fight between two detainees, and he was not one of them. He was not involved in the fight. My recollection is there was some bruising and a minor altercation between him and the other detainee.
Dr Zimmerman said this event did not alter her assessment of risk because the HCR20 measure does not go into intervening in a fight, it is about intent. She said:
If he has instigated acts of violence or provoking, it would show a violent mindset. That would be a concern, as would any targeting of vulnerable people. There are a number of factors, but none of those were present in these two incidents.
Mr Cunynghame asked whether it was her opinion that the Applicant has given a detailed insight into his offending conduct. She responded:
Yes, accepting and multi-dimensional. There is clearly evidence that the Applicant was swinging a punch when he said he didn’t. That is clearly a contradiction. You could speculate endlessly [why he said that], it could be shame. If I had evidence that he was trying to ‘look good’, but there is none. I always consider whether the person is being truthful. If there is evidence on one occasion that there has been a pattern of obfuscation, but there is no pattern here.
When asked directly by the Tribunal whether alcohol or a romantic relationship would increase the risk of reoffending, Dr Zimmerman said:
Forming a relationship would not carry a significant risk of violence. He is not dysregulated. It would be a combination of relapsing into drinking that would be a problem. The Applicant seemed to be saying to me he has no intention of drinking alcohol again. I agree he has not said he would swear off relationships. He can be directed by Mater and the Applicant himself nominated Relationships Australia and said it would be useful for him to attend.
Dr Zimmerman said the Applicant said he would invest in courses run in Inala and was clear that he would abstain from alcohol because he knew it had been a disaster for him.
CONSIDERATION OF THE DIRECTION
Paragraph 5.2 of 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.
Paragraph 9(1) of the Direction 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 fairly put claim that something is relevant in the particular circumstances of an Applicant, 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.
Birthdate of the Applicant
Before I consider the explicit contents of the Direction, I will address RPQB’s birthdate. In his closing submissions, the Respondent accepted that it is unclear whether the Applicant was born, as is cited in various documents, in 1995 or whether he was born, as he asserts, and his mother, Ms MB, said in evidence, in 1997.
I note that Mr McCowan in closing submissions reminded the Tribunal that Shanahan DCJ in the District Court of Queensland said in comments made while passing sentence on RPQB, in March 2019 (GD, p 325):
A complicating factor in this is your criminal history. You came to this country as a refugee and were assigned a birth date, which, apparently, is incorrect. For the purpose of sentence, I accept your mother’s assertion that you were born on [day redacted] November 1997 which makes you 21 years of age at this time.
I note that RPQB has submitted in a written statement that he celebrates his ‘real birthday’ on the day in November each year. It does not seem to me to be pivotal to the matters I must decide whether RPQB was born in 1995 or 1997. It may be that, had he been younger by around two years when appearing before the Courts, that could have affected the penalties he received, but that is speculation. I accept that the nominal date of ‘1 January’ is frequently cited by refugees from the part of Africa from where RPQB comes because in some countries of that region, it is not culturally important to mark birthdays and, more importantly, the registration of births to a government authority is not commonplace.
I take proper and respectful notice of the Judge’s acceptance of the evidence of the Applicant’s mother that RPQB was born in November 1997 and see no reason to cavil with that, given the evidence before me from RPQB and Ms MB. But I do not consider the Tribunal needs to make an explicit finding. It was not squarely put to me in submissions that in RPQB’s earliest offending he should have been treated as a juvenile offender. If it had been, my response would be that the clock cannot be wound back to provide a basis for some different assessment of the offending. The offences stand as they are, and there is a consistent line of judicial authority that the Tribunal cannot go behind that (see Minister of Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441). I do note that early offending by a person is, unless it is very serious offending, treated more leniently by judicial officers and resort is more often made to sentencing tools such as fines, bonds and suspended sentences. The relevant factor is whether the person takes heed of those sanctions and mends his or her ways.
In RPQB’s case, his first time in Court was in October 2014 (GD, p 37). On that day he was charged with two counts of contravening a direction or requirement. The Court did not record a conviction and fined him $100. Three days later he was before the Court charged with Failure to appear in accordance with an undertaking (made ten days earlier). No conviction was recorded, and he was fined $100. Two days later he was before the Magistrates’ Court in Brisbane charged with Contravention of a Domestic Violence Order. Again, no conviction was recorded, and he was placed on probation for 12 months.
The following month RPQB was before the Court in relation to Contravene a direction or requirement (again relating to the undertaking made on 8 August 2014). This time a conviction was recorded, and he was fined $300 or in default to serve six days in prison.
In January 2015, RPQB was before the Magistrates’ Court charged with the following offences: Contravention of Domestic Violence Order; Wilful Damage; and Breach of Bail condition. A conviction was recorded on all charges and he was fined $500. The following month, February 2015, RPQB was before the Court charged with a fresh count of Contravention of Domestic Violence Order. A conviction was recorded, and he was fined $500.
In April 2015, RPQB was before the Magistrates’ Court charged with the following offences: Possess tainted property; Possess utensils or pipes etc that had been used. The Court did not record a conviction and applied a good behaviour bond for six months on recognisance of $500.
Two weeks later in April 2015, RPQB was before the Brisbane Magistrates’ Court charged with the offences of Assault or Obstruct Police Officer and Unlawful Possession of Suspected Stolen Property. No conviction was recorded, and he was fined $400. The following day before another Magistrates’ Court, the Applicant was convicted of the offence of Contravention of Domestic Violence Order. He was sentenced to one-month imprisonment to be suspended for 12 months.
In May 2015, RPQB was before the Court charged with Contravene Direction or Requirement. No conviction was recorded, and he was fined $100.
In July 2015, RPQB was before the Court in relation to the suspended sentence imposed in April 2015 on the basis that he had breached an order of the Court. On this occasion the suspended sentence was fully invoked.
This was the first occasion when a custodial sentence was imposed on RPQB, but I have spelt out the 10 previous appearances he had in Court in the lead up to him being sent to prison for the first time. It is objectively obvious that successive magistrates had been lenient in dealing with the early offending of the Applicant by deploying a range of tools available to them. It was only after persistent breaches that the Court finally decided he should serve a custodial sentence. That occurred ten months after his first Court appearance, but more notably as I say, by then he had been before the bench eleven times.
Whether RPQB was some two and a half years younger when he commenced his offending behaviour bares little on an assessment, now, of his offending in total. It is amply clear to me that he was given successive opportunities to reform his behaviour when he first came to the notice of the police and then the Courts and chose not to take them. In saying this, I note that his very first Court appearance in October 2014 factually relates to breaches of written undertakings he had given to the police.
PRIMARY CONSIDERATIONS
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.
Some eleven of RPQB’s offences relate to breaches of domestic violence orders, in one case an aggravated breach. In addition, he has been convicted of Assaults occasioning actual bodily harm (conviction by the Court in July 2015; offending in April 2015); Assault or obstruct police officer (conviction in January 2017; offending in December 2017); Common assault – domestic violence offence (conviction in August 2018; offending in April 2017); Assaults occasioning actual bodily harm – domestic violence offence (conviction in August 2018; offending in April 2017); Assault or obstruct police officer (conviction in December 2018; offending in July 2018); Wilful damage – domestic violence offence (conviction in December 2018; offending in September 2018); Assaults occasioning bodily harm (conviction in March 2019; offending in November 2017).
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. Of these categories, the convictions for assaulting or obstructing police officers falls within the category of offending against government representatives performing their duties.
Before the Tribunal was a transcript of a Court hearing in July 2015 (GD, pp 51-56) before His Honour Magistrate Warfield. The Magistrate remarked that he was mindful of RPQB’s age and his early pleas of guilty. His Honour said that he was obliged to sentence the Applicant as a violent offender because of the nature of the offence of which he was convicted.
Among the offending dealt with that day was proven charges for: stealing petrol, fraud, unlicensed driving, breach of domestic violence order, three counts of disqualified driving and assault occasioning bodily harm. His Honour described that last offence as “particularly violent” and imposed a sentence of 12 months’ imprisonment. The Magistrate said he would normally impose a non-parole period of four months but took into account RPQB’s young age and so reduced that to three months. The Magistrate explained the consequences of breaching parole or not complying with conditions and RPQB responded: “I promise I will change my behaviour, your Honour” (GD, p 55). RPQB’s release date was 15 October 2015, and he was still subject to parole until 15 July 2016.
The Applicant was next before the Courts in March 2016. Before the Tribunal was a transcript of a Court hearing in March 2016 before Her Honour Magistrate Hall (GD, pp 44-50). On this occasion RPQB pleaded guilty to a number of charges. Her Honour referred to RPQB being surrounded by six people and deciding to chase them with a hammer and then use the hammer, not on the people, but to damage property of a person not associated with the event or known to RQPB. The Magistrate sentenced him to six months’ imprisonment for going armed and damaging property and remarked that he allowed his rage to take over.
Her Honour recorded convictions for driving without a licence, breaching domestic and family protection orders, and driving a vehicle that was unsafe. RPQB was convicted of stealing petrol, refusing to state his name, and breaching bail undertakings.
On the last day of April 2017, RPQB undertook the following conduct (extracted from the Queensland police brief, which RPQB accepted was accurate) (GD, pp 276-277):
The defendant [RPQB] then approached the victim [his wife, Ms CW] and leant down as she was still on the floor and has punched the victim, with a closed fist, striking her several times to the head, including to the left eye, and to the right side of the fact. The strike to her eye caused a large amount of pain and discomfort and immediate swelling and bruising.
The defendant then said to the victim to “get the f---- up” and told her to go into their bedroom and get her belongings and leave. The victim kept apologising to the defendant out of fear to which he responded “you knew this was coming, you knew”. The victim then got up off of [sic] the floor and walked down the hallway toward their bedroom at the rear of the dwelling, during which time the defendant was pushing her in the back and saying “hurry the f--- up”.
When the victim was in her room she commenced packing her belongings in to several bags. During this time the defendant has again approached her and raised his fist as if he was going to strike her. He did this several times causing the victim to flinch. He then spat on her face again and laughed at her.
The defendant then ripped up both the Australian and Muslim Marriage certificates for him and the victim stating he wanted nothing to do with her. The defendant then scattered papers around the bedroom.
Factually, Ms CW was heavily pregnant at the time of this assault; she gave birth to their son in August 2017. When the police arrived at the house, they had to force entry because RPQB refused directions to open the door. Ms CW was transferred by ambulance to a hospital for examination of her injuries and later interviewed by police, and forensic photographs taken.
In the Respondent’s Tender Bundle (R3, p 53) was the sentencing remarks of a Judge of the District Court of Queensland, delivered in March 2019 relating to an incident which occurred early in November 2017 and which led to the jury convicting RPQB of the offence of Assault occasioning bodily harm. The Judge referred to the Applicant and others being present at a unit. RPQB and a person he knew from the Eritrea refugee camp began to argue. They agreed to go outside to have a consensual fight. An independent observer told the Court they saw the other participant throw the first punch which connected with RPQB.
RPQB then punched the complainant and he fell to the ground. He was unconscious and not moving. The witness said that he then saw RPQB delivering blows by a knee to the complainant’s head on a number of occasions. The witness yelled out to the Applicant to stop. RPQB then knelt on the complainant’s back and punched him a number of times to the back of the head. The witness said the complainant woke from unconsciousness to find injuries to his face he could not explain, including abrasions.
The sentencing Judge took into account evidence that both parties were heavily intoxicated at the time. He accepted it was initially a consensual fight but that once the complainant was incapacitated on the ground, RPQB had delivered a number of blows causing bodily harm. His Honour said that makes the offence serious in that it was an attack on an unconscious person and noted it was fortunate more serious injuries were not caused.
The Judge noted that RPQB had shown “no remorse whatsoever in the face of, in my view, an overwhelming Crown case”. RPQB was sentenced to 12 months’ imprisonment to be served concurrently with his present sentence and set a parole date of September 2019.
It is clear to the Tribunal that RPQB has been convicted of serious and violent offences, including against his wife and in continuing to assault a protagonist after that person had been rendered unconscious, notwithstanding the initial fight might have been consensual.
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 RPQB engage in further criminal or other serious conduct and the likelihood of him so engaging.
RPQB has a history of stealing, assault and assault in a domestic context. Some of his stealing has been in the category of ‘petty’ thieving, but even with his several convictions for stealing petrol there is a direct effect on the livelihood of small businesses, as the Court has pointed out to him.
He has responded disproportionately to challenges and appears to have been unable on many occasions to control his anger. If RPQB committed further violent acts when ‘enraged’, to borrow the words of a sentencing Magistrate, there would be a clear risk to members of the Australian community going about their daily lives. He has shown an inability to comply with parole conditions and orders of the Court, on numerous occasions.
The Applicant wrote (GD, p 932) that he has completed courses in anger management and life skills while in immigration detention. He said that he has also completed a ‘men’s group’ course in detention which covered topics like how to control emotions. He relevantly said:
I learned a lot from these courses. The lady presenter who presented both the courses explained very well how to know what my triggers are. That is, understanding what makes me angry and how to see when anger is building up, before it becomes a problem.
I also learned strategies for how to manage anger. The simplest strategy is to move away from the situation and remove myself before it gets worse. I learned in the course that, before an argument gets heated up, when you see it going the wrong way to get up and walk away -to remove yourself. Even if an argument or disagreement happens during a phone call, before things get heated I know to say something like, ‘hey, I am going to have to call you back’, then cool down and call back later.
RPQB went on in the same statement to say that the courses have taught him that violence is never the answer.
RPQB also said his time in detention and the courses he has completed have helped him to accept that alcohol is a trigger for anger and bad behaviour. He particularly identifies spirits as ”really bad for me” and that he knows now, not even to drink beer, and he accepts that he is not a person who can ”even have a drink once in a while”’. He stated that he plans to undertake counselling if released and said his mother had approached Alcoholics Anonymous (‘AA’) to inquire about enrolling him, and AA advised he cannot be enrolled at present but could be as soon as he is living back with Ms MB (GD, p 396).
In respect of the incident in the detention centre in November 2019, the CCTV footage was before the Tribunal, I am satisfied on viewing it that it does not support a view that the Applicant either initiated the altercation or was the driver of it. It would seem to me that a fair viewing of the footage shows the other detainee involved as baiting RPQB by flicking a cigarette at him, and the Applicant responded. It is evident that RPQB did throw a punch, but taken as a whole, having viewed the footage from the angles of both cameras, I conclude that the blame is evenly spread between the two involved. This footage does not play a role in my conclusions in this matter.
I accept that home brew equipment has been found in the room RPQB occupies in the IDC, but also his evidence that several detainees share the room; there is no other evidence before me in the IDC reports of the Applicant being intoxicated or found drinking while in detention.
In respect of RPQB being found in possession of a shiv – a sharp piece of metal – while I might accept the Applicant’s evidence that he picked it up and retained it for self-defence. I did not find his evidence that he would not have used it, if confronted, as believable.
Dr Zimmerman’s evidence was that the fact of RPQB forming a relationship “would not carry a significant risk of violence”. However, she qualified this by saying that alcohol has been RPQB’s problem. While I accept that alcohol has been a significant factor in contributing to the Applicant’s violent offending, it is significant to me that the most egregious incidence of family violence he inflicted on his wife was, on his own evidence, after they had been attending a Somali wedding where no alcohol was served. Alcohol abuse was not a factor in this offending. Inability to control his anger was.
RPQB’s own evidence points to a propensity to inflict domestic violence on his romantic partners, or at least to threaten to do so. That may be gleaned from his own admissions and the fact that domestic violence orders have been made against the Applicant in relation to three successive partners.
While I give due weight to Dr Zimmerman’s evidence because of her professional experience and expertise, a significant part of each of her reports has centred around the application of the HCR20 assessment tool. In her October 2020 report, Dr Zimmerman wrote (GD, p 460):
In terms of static or historical risk factors for future offending, [RPQB] has a number of factors present that I consider to be relevant to the risk of future offending in the absence of interventions that may be taken to reduce the risk. These consist of firstly, his history of violence, including several episodes for offending against a woman, 1 serious assault on a male in the context of significant intoxication and a number of resist/assault police, the most serious of which appears to involve a statement expressing a wish that the officer in question were dead. Secondly, [RPQB] has a history of antisocial acts in terms of his non-violent offending. The presence of intimate partner abuse means that [RPQB] also has the relevant factor of problems with relationships. I note that [RPQB] completed year 11 and went on to complete an apprenticeship and worked in one unskilled job for over 6 months and another (seasonal farming work) on and off for a period of time. I have no evidence of conflict with workmates or employers. However, [RPQB] has not had a period of sustained employment and bearing all of this in mind, I believe that he qualifies for the partial presence of this factor of problems with employment. [RPQB] has a clear history of alcohol dependence. Apart from one episode of depression that was managed effectively in prison, [RPQB] does not have a history of Major Mental Disorder. The Diagnostic Statistical Manual of Mental Disorders – 5^th edition (DSM-5) specifically draws attention to the difficulties of diagnosing an antisocial personality disorder where the difficulties began after the onset of a traumatic event. There are similar cautions expressed in DSM-5 in making such a diagnosis where offending behaviour is related to a diagnosis of a substance misuse disorder. Given the chronic trauma throughout [RPQB’s] early childhood and his subsequent development of alcohol dependence, I do not believe that it is possible to make a diagnosis of personality disorder in his case. The vast majority of [RPQB’s] offending has been of a non-violent nature. He was intoxicated on several of the instances when he was violent. I do not believe he had entrenched violent attitude or values. [RPQB] has a history of failure to comply with supervision. These identified factors all provide areas that need addressing in order to reduce his risk of future offending.
(Emboldening in original.)
The Tribunal notes the evidence before it of courses that RPQB undertook in detention, notably a certificate of participation in a ‘Lifeskills’ course dated August 2020 (GD, p 443) and a certificate relating to participation in a ‘Men’s Group’ course, also dated August 2020 (GD, p 444). The Applicant told Dr Zimmerman that he had attended one Headspace counselling appointment regarding his drinking, but did not complete the counselling because of Court attendance regarding custody of H and breaking up with Ms CW.
There is conflicting evidence about whether RPQB has engaged in the past with AA. Dr Zimmerman reported that RPQB told her that he was advised to attend AA but did not engage. Later, however, Dr Zimmerman refers to the delegate’s Statement of Reasons recording that RPQB did attend AA in 2016-2017. I am not satisfied that there is evidence of this engagement and prefer the evidence of what Dr Zimmerman said she was told by RPQB directly.
The foundation of Dr Zimmerman’s conclusion regarding a ‘low risk’ of the Applicant re-offending was specifically contained. She wrote (GD, p 461):
Looking at [RPQB’s] history and the nature of the difficulties he faces, it is my opinion that he does not pose a risk of serious/life-threatening violence or imminent (within the next hours to weeks) violence. [RPQB’s] identifiable factors are almost exclusively historical with no current or recent risk factors. He has two partial or possible risk factors regarding the future domain, both linked to him being in Immigration Detention on Christmas Island. He is unable to link in with specific service providers from his current location and the transfer from indefinite detention back to community living is likely to pose stresses that he will have to negotiate. He currently presents a low risk of future violence or offending using the HCR-20 version 3.
The Tribunal’s task under this consideration in the Direction is broader than this assessment. The Tribunal is required to make an assessment of risk of re-offending of any sort, not just serious, life-threatening, violent or imminent re-offending. I am satisfied that there is no risk of imminent re-offending by RPQB while he is in the protective environment of immigration detention. I am much less satisfied that there is a ‘low risk’ of him re-offending in the community. He has a history of failing to obey orders of the Courts. He has a strong history, as Dr Zimmerman identifies, of violence against intimate partners. He has a history of assaulting police officers. He has admitted that alcohol is a significant factor in his past violent offending, but it has not always been present.
Even if the Tribunal were to accept that the risk of violent re-offending as currently ‘low’, I find that the general risk of re-offending is a real and significant risk. Successive orders by the Courts and previous interactions with the Department have done little, if anything, to moderate RPQB’s criminal conduct.
The Tribunal finds, overall, that this primary consideration weighs against revoking the mandatory cancellation of the Applicant’s visa, and relatively heavily so.
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.
The Direction requires the Tribunal to consider the frequency of the conduct, and whether there is any trend of increasing seriousness; the cumulative effect of repeated acts of family violence; rehabilitation achieved at the time of the decision since the person’s last known act of family violence, including:
·The extent to which the person accepts responsibility for their family violence related conduct;
·The extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse, particularly children; and
·Efforts to address factors which contributed to their conduct.
The Direction also requires, at paragraph 8.2(3)(d), consideration of whether the person has continued to offend since being formally warned or otherwise made aware by a Court, law enforcement or other authority about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the person’s favour. This includes warnings about the effect on the non-citizen’s migration status, should they engage in further acts of family violence.

Paragraphs 8.4(1) and (2) of the Direction states:
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 goes on to list specific sorts of conduct that raise character concerns, three of which are relevant to RPQB’s criminal history. Paragraph 8.4(2)(a) refers to acts of family violence and it is evident from the criminal history outlined above that some of RPQB’s offending falls into this category. Paragraph 8.4.(2)(c) refers to serious crimes against women and clarifies that the phrase ‘serious crimes’ include crimes of a violent nature. RPQB’s assault convictions, including on his wife, Ms CW, are within this category. Paragraph 8.4.(2)(d) refers to commission of crimes against government officials in the performance of their duties. The Applicant’s convictions for assaulting police fall within this category.
The expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A previous 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’).
The Court held 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 seek to derive by some other evaluative process. Direction No. 90, issued after FYBR, imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which is 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 Applicant has frequently breached conditions and orders imposed by the Courts, in fact the majority of his earlier appearances before the Magistrates centred on such breaches. In particular, he has amassed many breaches of conditions of domestic violence orders, in spite of assuring the Court that he would adhere to the conditions those orders imposed on him. It is clear to me that his domestic violence offending has been a significant, perhaps accurately the predominant, type of offending of which he has been convicted. It has been repeated and, apart from Ms CW, it involves offending against two other women.
Some allowance would, I consider, be made by the community of RPQB’s young age, and his age when he came to Australia. However, that would be balanced by the relatively long list of offending he has amassed in a short period, including violent offending against the person. I note that RPQB has several driving convictions which are serious, but not at the most serious end of the spectrum, though they must be deprecated because they inherently create a risk to other road users. Even if RPQB’s several domestic violence offences had not occurred, he does have other convictions for violent offending.
I find that this expectation of the community weighs against the revocation of the cancellation of the visa, and the weight is relatively significant.
OTHER CONSIDERATIONS
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 certain international treaty obligations which it must honour, through the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (‘the Refugees Convention’), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol.
In the event the Tribunal affirms the decision, the Applicant would be repatriated to the Federal Republic of Somalia, which is his country of citizenship. In respect of the prospect of being returned to Somalia, in his personal circumstances form relating to the 2015 cancellation of his visa (a cancellation subsequently revoked), RPQB wrote in October 2015 (GD, pp 331-332):
My reason for revocation is my country is not safe. I am from Somalia which is really dangerous country at the moment. There is civil war going on in my country and it is not really good place for me to be. All my family are here in Australia – my mother, dad, brother, sister [in-law], and all my cousins. I came in Australia at a young age 16 yr old as a refugee with my family. I know no one back in Somalia, and I would like to stay here with my family. I know I did get into some trouble’s which I regret now and will never happen again. I am requesting from the Minister to revoke the mandatory cancellation of my visa, so I can stay in Australia with my family and which is the best place to be for my safety. Thanks.
I come to Australia in 2011 as a refugee with my family, we left Somalia because of the war. My cousins who were in Somalia are all dead now. They were killed in the civil war and I am scare[d] to go back to Somalia. I will be killed if I go to Somalia. It’s full of pirates who will sho[o]t me for my phone. So for my safety I would like to stay here in Australia with my family. I like with my mother who is old woman 50 year old and I am carer of her I take care of her and would like to stay with my mum. It’s my first time I ever went to prison. I spen[t] three months in prison and I want it to be my last time in prison. I want to get my life back together, get a job, take care of my mother and stay out of prison and obey to the law. I am requesting from the Minister to revoke my visa. Thanks.
On a similar form, in relation to the 1 March 2019 cancellation of his visa, RPQB wrote (GD, p 59):
I am from Somalia Mogadishu, which is war zone country and if I go back my life will be in danger. All my family is here mother, father, brother and they all Australian citizen[s]. I have no one to go back to in Somalia ad I left when I was 2 years old to go to refugee camp for my safety.
In his written statement dated 6 October 2020 (GD, pp 423-425), RPQB wrote:
If I am forced to return to Somalia, I think that will be taken to Mogadishu and I know nothing about the place except what I have heard from others, I have never been there. I would not know where to go from there.
I will appear different from people in Somalia. The way I dress, the way I carry myself, my style and the way I talk is very different. I know this because I have been told this, and I have seen newly arrived migrants from Somalia.
The way I speak is very different, my Somali is very different to the way people in Somalia speak Somali. I have a very strong accent when I speak Somali. Some Somali people in Australia can’t even understand me when I speak in Somali…
My lawyer tells me that the Minister has said that there are Somali people from the West returning to visit, work and invest in Somalia and they do not get harmed. This is very different to my situation, I can guarantee you that they don’t have to walk around on the streets all the time. These people would either be well connected with rich powerful Somali people or go and stay in a hotel. They would only leave the hotel when absolutely necessary. Another thing is, I hear that Somalia is very corrupt and people are desperate and poor, the police will protect those rich investors and visitors because they can give the police money.
…
I am not a rich, powerful Somali person who had lived in the West. I am a refugee who had to flee the country to find safety. While I am not rich, the Somali people are very poor people, just coming from Australia they will think that I am rich and hiding the wealth. This will make me a target to criminals. As soon as I speak, and by the clothes that I wear (I like to dress nice), they will know I am a foreigner, an Australian, and kidnap me or try and rob me.
If somehow extremists like AL Shabaab find out that I used to drink alcohol and hang around with girls and people from the West, I know I will be targeted.
I want to live my life as a free man in Australia and putting pictures up on Facebook was part of it. If any of that is seen by anyone with extremist ideologies in Somalia I will be targeted.
My beliefs are very different to those in [Somalia]. I pray every Friday and not five times a day. I don’t agree with the strict interpretation of Islam. For example, if I get seen with my hair style I would be in big trouble from the extremists. In fact, I don’t think many people in Somalia would like my hairstyle and I will be targeted for this reason also. They will think I am a bad Muslim.
…
I am from a minority clan in Somalia, this is part of the reason my family had a lot of trouble and had to flee Somalia to the refugee camp. I hear that these things are still happening and people from minority clans are being targeted everywhere. I also hear that these clan things are very important to people in Somalia, they ask where you are from, I won’t be able to refuse to disclose which can I am from.
The Tribunal notes that the Direction (at paragraph 9.1(5)) states that international non-refoulement obligations will generally not be relevant to a consideration of revocation of the cancellation of a visa that is not a protection visa, where the person does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision. I note that the visa RPQB held was not a protection visa. I also note his oral evidence that he has not yet decided whether he would apply for a protection visa, in the event that the Tribunal affirms the decision under review.
Direction No. 75, made under section 499 of the Act, relevantly provides that where a non-citizen refugee (like RPQB) applies for a protection visa, a delegate of the Minister must first assess the refugee’s claims with reference to section 36(2)(a) of the Act and any complementary claims with reference to section 36(2)(aa) of the Act before considering any character or security concerns. Nonetheless, the Tribunal will consider the claims of RPQB that he would be exposed to harm if returned to Somalia, as articulated in his statements above, his oral evidence, and in submissions made by his counsel. In so doing, the Tribunal is mindful of the Full Court decision in Minister for Home Affairs v Omar [2019] FCAFC 188 where, at [40]-[41] the Court held that there is an incumbent obligation on a decision-maker to give meaningful consideration and an ‘active intellectual engagement’ with submissions concerning harm independently of a claim concerning Australia’s non-refoulement obligations.
In his oral evidence, RPQB said he did not want to return to Somalia because he did not know anyone there, and his family are all here. Ms MB referred to her one sister who was a known relative in Somalia, with whom she has long lost contact. She did not know whether this sister was still in Somalia or, indeed, still extant.
RPQB wrote that Somalia is a ‘war zone’. He also made general remarks that he might draw the attention of Al-Shabaab, it would seem he thinks because of some Facebook posts depicting girls and, perhaps, him historically drinking alcohol. He did not explain how these social media posts would come to the attention of people in Somalia, or indeed how they would link those posts with him.
I am not satisfied that any of the claims raised by RPQB rise to a level where they might satisfy a claim of a well-founded fear of persecution for an imputed political opinion. A chance that is remote is not sufficient to found such a claim (see Chan v Minister forImmigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, per Mason CJ at [12] and Dawson J at [19]. Even if it is advanced that a remote claim was made, RPQB did not expand upon this in his oral evidence when invited so to do.
It would seem to the Tribunal that some of the contents of his 20 October 2020 statement, relating to fear of harm were contentions about generalised matters, such as his concerns about his accent, his hairstyle and his views that he would be perceived as wealthy (or at least wealthy in a relative sense) if repatriated. Although he wrote in his 20 October 2020 statement about being a member of a minority clan, RPQB did not say what that clan is, nor when invited did he reiterate this claim in his oral evidence.
A submission was made on behalf of the Applicant (GD, p 119) in July 2020 that he is “a member of the Marehan clan who generally inhabit the Gedo region of Jubaland Somalia”. However, in relation to the issue of ”tribal violence amongst warring tribes and risk to those without clan protection”, the same submission states (GD, p 122):
Country information indicates that individuals who are not members of majority tribes, and thereby afforded armed protection from their tribe, are at risk of experiencing violence at the hands of other tribes and clans. Whilst [RPQB] is a descendant of members of the Marehan clan, he has no connection to the clan and, in our submission, he would not be afforded protection.
The Tribunal is unable, on the paucity of information available and the lack of evidence, to make any conclusive finding that RPQB would be exposed to a significant risk of harm because of his membership of the Marehan clan on the one hand, or because he is not a member and has no connection with that clan, on the other.
The remark in his submissions to the Department in 2015 (GD, p 332) that RPQB had cousins in Somalia who were ”killed in the civil war” was not mentioned in his 2019 submissions, nor in his oral evidence at this hearing, nor by Ms MB in her hearing. The only discussion about family members in Somalia was about an aunt, Ms MB’s sister, with whom they have lost contact. She may be in Somalia. In regard to RPQB’s biological father, there has not been contact with him for any part of RPQB’s life. He may be in Somalia; the evidence was that his whereabouts are unknown.
Some of the submissions that RPQB has made in respect of ‘fears of harm’ should properly be dealt with in relation to the consideration relating to the extent of impediments if he is removed to Somalia. The Applicant has reasonably raised the fact that the civil circumstances in Somalia remain volatile. Direction No. 84 made under section 499 of the Act relates to the importance of consulting country information reports prepared by the Department of Foreign Affairs and Trade (‘DFAT’) as objective assessments of the current situation in a particular foreign state. Although the purpose of Direction No. 84 relates to assisting decision-makers considering protection visas, the Tribunal gives the DFAT reports due weight.
The DFAT Country Information Report Somalia was prepared on 13 June 2017 so it is dated, but it appears to be the current Department assessment on the Department’s website. It relevantly states, at paragraphs 2.25 and 2.26:
SECURITY SITUATION
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 on 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. In October 2016, a group of between 50 to 100 al-Shabaab fighters pledged allegiance to ISIL and proceeded to take control of the coastal town of Qandala in Puntland. Puntland security forces retook Qandala on 7 December 2016 but members of the ISIL cell remain present in the country. Al-Shabaab is very active in south-central Somalia and continues to undertake terrorist attacks against major security and civilian targets, including government facilities, often resulting in deaths. AlShabaab commonly uses bombings (car bombings or suicide bombings) and the majority of their large-scale attacks take place in Mogadishu. Some recent examples of violence perpetrated by al-Shabaab include:
In June 2016, al-Shabaab bombed two hotels in Mogadishu resulting in the deaths of two parliamentarians and injury to several civilians.
On 11 December 2016, over 35 people were killed when al-Shabaab exploded a minivan at the Mogadishu seaport.
Throughout October to December 2016 (while parliamentary elections were underway), suspected al-Shabaab members shot six clan elders and two electoral delegates.
On 25 January 2017, al-Shabaab bombed the Dayah Hotel in Mogadishu, killing 38 people including two parliamentarians, three security services personnel and six hotel guards.
Al-Shabaab claims to have killed 57 Kenyan troops, following its attack on the Kenyan Defence Force’s base in remote southern Somalia on 27 January 2017. There have also been other significant attacks on AMISOM troops over the last couple of years
Given the age of the Country Information Report, Mr McCowan urged the Tribunal to take note of the Travel Advice for Somalia, issued by DFAT. The Tribunal notes that the Travel Advice relevantly says:
Somalia
Overall: Do not travel
Latest update - Still Current at: September 2021
There’s ongoing high threat of terrorism, with attacks expected to continue. Don’t travel to Somalia. If you’re in the country, leave as soon as possible. If you decide to stay, get professional security advice. The electoral process has begun in the lead up to the Presidential election on 10 October 2021. A spike in violence is likely to correspond, including possible attempts to disrupt the elections.
We continue to advise: Do not travel to Somalia due to:
·The high risk of terrorist attacks, kidnapping, armed conflict and violent crime
·The health risks from COVID-19 pandemic and the significant disruptions to global travel
Mr Cunynghame submitted that the Travel Advice is advice to tourists and other foreign travellers, and it is so pitched; he submitted the DFAT Country Information Report was a more comprehensive picture of the conditions in a country, including for returnees.
It is objectively clear to me that the situation in Somalia is volatile. The country has been declared in the past as a ‘failed state’. It was more recently described by Sir Nicholas Kay, the UN Special Representative in Somalia from 2013-16, as a ‘fragile recovering state’. It is clear that RPQB does not want to return there. He emphasised in his evidence that he would not know people there. His statements about the civil situation in the country appear to be based on what other people have told him. It is understandable that he does not have first-hand knowledge of Somalia as he was an infant when his family went to Eritrea, but he did not squarely put before the Tribunal evidence that would satisfy me that he would be at a personal risk of harm. In saying that, I am not saying that Somalia is a place without dangerous aspects. There might be some heightened personal elements such as unfamiliarity with localities that are relevant to RPQB.

However, making observations about the day-to-day challenges of living in a volatile state like Somalia is, without wishing to sound harsh, describing what are the daily challenges that face citizens of the country at large. They do not amount, in my conclusion, to claims that are relevant to the Refugees Convention or the other international treaties mentioned above. That is not to say other claims could not be advanced, but my conclusion is that they have not been significantly advanced before me to rise to a level that invokes non-refoulement obligations.
The Tribunal finds that this consideration weighs neutrally.
Special consideration – the prospect of prolonged detention
Notwithstanding the conclusion about the other consideration (paragraph 9.1 of the Direction), relating to non-refoulement obligations and the fact that the Applicant has said in his evidence that he had not decided (if there is an adverse decision in this review) whether he will apply for a protection visa. The Tribunal takes the view that the prospect of indefinite detention should be considered in relation to RPQB. This is for two reasons, the first that the question of whether he will apply for a protection visa, and when such an application may be heard, is unknown and cannot be usefully speculated upon. The second is that in the current circumstances of a global pandemic affecting airline travel, repatriation of the Applicant to his country of citizenship ’as soon as reasonably practicable‘, required for all illegal non-citizens through force of section 198 of the Act, may not practically be possible.
It is not speculative to predict that RPQB could be in immigration detention for an extended period. In the recent decision STZS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1140, Middleton J relevantly said at [38]:
In circumstances where after reviewing the country information the Tribunal accepted the prospect that the applicant could not be returned to Ethiopia, notwithstanding that the applicant could apply for a protection visa in the future, I consider it to have been necessary for the Tribunal to consider the indefinite or prolonged detention of the applicant as a foreseeable consequence of the decision not to revoke the cancellation of his visa.
Following the learned Judge’s reasoning, I accept there is ‘a prospect’ that RPQB could not be returned to Somalia, at least in the foreseeable future. Therefore, I am obliged to consider the consequences of prolonged detention, or ‘indefinite’ detention, in the sense of using that word to mean detention without a known fixed end date, not detention ‘forever.’
Dr Zimmerman’s oral evidence, as set out above, was that long detention was detrimental to a person, and indefinite detention was ‘the most harmful of all’. Among the clinical effects it has on a person are, in her professional opinion, “a growing sense of powerlessness, a loss of self-agency and a loss of resilience”. The Tribunal gives this evidence due weight because of the witness’s expertise and her status as giving evidence as an expert witness, not an advocate for a party.
The Tribunal considers that any person, citizen or non-citizen alike, is entitled to a known outcome of an administrative decision, and this is not the case with indefinite detention. This should not be interpreted as a criticism of the Respondent, because there are often factors at play which are beyond the Minister’s control, for instance an inconstant political situation in a receiving country or, as is the current situation, a global pandemic.
Overall, both because of the potential future effect on the Applicant’s mental health, and because of the desirability of certainty and finality in decision-making, I consider that this special consideration relevant to RPQB weighs in favour of revoking the mandatory cancellation of his visa, and relatively strongly so.
Extent of impediments if removed (paragraph 9.2)
The Direction requires the Tribunal to consider the extent of any impediments RPQB 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.
RPQB’s evidence is that he was taken by his mother and stepfather to Eritrea when a very young child, and he has no memories of Somalia. He knows only what his mother has told him about their life there.
It would appear on the medical records before me that RPQB is generally physically healthy. Dr Zimmerman was not of the view that he had a mental health condition. He acknowledged to the Tribunal that he speaks Somali to his mother, who speaks little English, so it would seem he would have no difficulty communicating in that language if repatriated.
Given the tender age at which RPQB left Somalia, the fact that he has never returned, and the volatile situation in that country, as recited above in the extract from the DFAT Travel Advice, coupled with the fact that RPQB has no known relatives there, except possibly for a biological father who left before he was born and, maybe, an aunt, the Tribunal is satisfied that RPQB would face significant challenges if repatriated. He has commenced a mechanics apprenticeship, which may assist in gaining employment. His fluent English would also be an asset, but overall, I consider there would be a range of impediments if he is removed.
The Tribunal finds that this consideration weighs relatively strongly in favour of revoking the mandatory cancellation of the visa.
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 the Applicant’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.
The Tribunal notes that Ms MB, who is the victim of one instance of offending when RPQB smashed the window of her house, has provided written statements and gave oral evidence supportive of her son and the restoration of his visa. The Applicant’s estranged wife, Ms CW, did not give oral evidence and the Applicant said he has had no recent contact with her. She has provided a written statement dated October 2020 in which she wrote:
If he [RPQB] was removed from Australia I would be devastated and angry, I don’t know how I would live.
Because she did not give oral evidence, the Tribunal was unable to explore the context in which she made this statement. I can, however, glean from the evidence of the Applicant and Ms MB that Ms CW relies heavily on her mother-in-law to share care for the child, H, because of Ms CW’s shift work in her aged care sector job. I can accept, on its face, RPQB’s assertion that he intends to seek joint custody of H if he is released into the community, though there is no evidence of the current state of Family Court orders for H’s care. I am not convinced on what is before me that RPQB has demonstrated all the parenting skills he would need to share care of H, but I do accept the important and loving role that Ms MB plays in H’s life.
Overall, given the paucity of evidence, I am unable to ascribe weight to this consideration in either direction, so I find it weighs neutrally.
Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The impact of the decision to revoke the visa on RPQB’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 must be considered under this part of the Direction. The Tribunal must have regard to how long the Applicant 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.
The ASFIC submitted that RPQB has resided in Australia for all of his adult life and that “this connection is of heightened significance given his traumatic displacement as a child from his place of birth”. The Respondent’s Statement of Facts, Issues and Contentions acknowledged that RPQB has lived in Australia for approximately 10 of his 26 years but noted that he arrived in 2011 and committed his first offence in 2014. Therefore he can be seen to have committed offending ‘soon after his arrival’ in terms of this part of the Direction. The Respondent noted that RPQB had worked as a butcher for around seven months but submitted there was limited evidence of any positive contribution he has made to Australia.
The Tribunal acknowledges the written and oral evidence of the Applicant’s mother, Ms MB, and his brother, Mr KG, and that they earnestly wish him to stay in Australia and would be significantly and detrimentally affected if he was repatriated. The written statement of his estranged wife, Ms CW, is referred to earlier in these reasons, and it would appear they are no longer in contact, at least directly. However, it is also apparent that there would be an effect on Ms CW if RPQB was deported at the very least because, if here, RPQB could potentially share custody of their son and assist in care and financial support for H.
It is clear that RPQB has maintained a close relationship with his mother and his brother. He refers to this stepfather in his personal circumstances form submitted to the Department, but there is little other evidence of contact between them. The Applicant’s stepfather was not mentioned by the Applicant or the other witnesses in terms of any interactions in Australia. I note there is reference to RPQB translating documents for him on occasion, so there must be some contact, but noting that Ms MB separated from her husband in 2011 and divorced him in 2013, it would seem that the Applicant’s stepfather has not been a significant presence in RPQB’s life since he was aged around 16 or 17.
The Applicant refers to his nieces and nephews, the five children of Mr KG, and they are certainly connexions he has in Australia, and their best interests have been considered under the relevant primary consideration relating to minor children in Australia. He also refers to several aunts and uncles and cousins, but there was a dearth of evidence about these people.
The Tribunal finds, because RPQB has been here for his formative years and all of his adult life, young as he is, and because all his known family are in Australia, that this sub-consideration weighs in favour of the Applicant.
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’.
Mr McCowan submitted that this consideration was not relevant to RPQB, a submission echoed by the Respondent. RPQB has a very modest employment record. I find that this sub-consideration is not relevant and weighs neutrally in this assessment.
My overall assessment of the consideration of Links to the Australian community is that it weighs relatively strongly in favour of revoking the mandatory cancellation of the Applicant’s visa.
CONCLUSION
The Tribunal has considered the primary considerations and other considerations set out in the Direction. I am not constrained only to the contents of the Direction in considering the exercise of the discretion under section 501CA(4) of the Act, but I do not find that any other factor rises to the level of being relevant.
The primary consideration relating to the protection of the Australian community weighs relatively strongly against the Applicant. The nature and seriousness of the conduct has included violent acts against the person, sometimes in a domestic context, but not exclusively. The risk to the Australian community should he re-offend is assessed by the only professional who has examined this risk, a forensic psychiatrist, to be a ‘low risk’ in relation to violent offending, but found by the Tribunal to be a real risk in relation to offending in general.
The primary consideration relating to family violence committed by the Applicant weighs against him, and I consider relatively heavily so. He has persistently breached domestic violence orders and committed a nasty assault on his pregnant wife. The primary consideration relation to the best interests of minor children in Australia weighs in favour of revoking the mandatory cancellation of the visa because of his young son, but this weight is slightly lessened because of the separation between the child and the Applicant. Some of the separation has been the result of RPQB’s prison and subsequent detention, but part of it is also because of Court orders which resulted from his conduct.
The primary consideration relating to the expectations of the Australian community weighs against him, and the weight that attaches to that is significant.
Addressing the other considerations, the Tribunal has found that the consideration relating to international non-refoulement obligations does not rise to the level of being relevant and weighs neutrally in this assessment. The special consideration relating to the Tribunal’s conclusion that there is a real prospect of the Applicant being in prolonged detention, and that this would be detrimental to his general well-being, weighs in his favour.
The consideration relating to the extent of impediments if removed weighs strongly in favour of revoking the mandatory cancellation of the visa, as does the consideration relating to links with the Australian community. The two remaining other considerations are not relevant and thereby weigh neutrally.
The Tribunal has carefully considered this matter and in particular the fact that persistent breaches of domestic violence orders makes up a very large proportion of RPQB’s offending record. Alcohol abuse has been an important factor, as he ruefully acknowledged and as is supported by the professional evidence. His abstinence from alcohol for a significant period may auger well for the future, but that abstinence has only occurred in a protective environment of prison and detention. The end of his relationship with his estranged wife Ms CW might lessen the prospect of further domestic offending but it does not remove it, and his own history as outlined both in his written statement and oral evidence, inclines me to think that further domestic offending is closely linked to his anger management and is a real prospect in the future, perhaps with another intimate partner. The new Direction specifies that conduct constituting family violence is a primary consideration. The nature and seriousness of RPQB’s offending, the fact that he has been warned before by the Department, and the real risk of him re-offending is determinative in this matter.
Weighing all the considerations in this matter individually and together, I have decided that the discretion available in section 501CA(4)(b)(ii) of the Act is not enlivened. That means that the decision the Tribunal is reviewing was correct in terms of the law and the discretionary power available was not liable on the facts to be exercised.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 275 (two hundred and seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 13 October 2021

Dates of hearing:

11, 19 and 20 August 2021

Advocate for the Applicant:

Mr Andrew McCowan

Solicitors for the Applicant:

Refugee and Immigration Legal Centre

Advocate for the Respondent:

Mr Adam Cunynghame

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2021] AATA 3644

13 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Remedies

Statutory Construction

Dates of hearing:	11, 19 and 20 August 2021
Advocate for the Applicant:	Mr Andrew McCowan
Solicitors for the Applicant:	Refugee and Immigration Legal Centre
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers