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

RPQB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4656 (2 November 2020)
Division:GENERAL DIVISION
File Number: 2020/4849
Re: RPQB
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of Decision: 2 November 2020
Date of Written Reasons: 6 November 2020
Place:Brisbane

The decision under review is affirmed.
............................[sgd]..........................................
Senior Member Theodore Tavoularis
Contents
Catchwords
Legislation
Cases
Secondary Materials
Introduction and background
ISSUES
DOES THE APPLICANT PASS THE CHARACTER TEST?
Is there Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
Primary Consideration A – Protection of the Australian Community
Application of Paragraph 13.1.1(1) of the Direction
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Conclusion: Primary Consideration A

Primary Consideration B: The best interests of minor children in Australia
The Applicant’s written evidence
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration B

Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C

Other Considerations
(a) International non-refoulement obligations
Assessment of the Applicant’s claims
The Applicant’s written position regarding international non-refoulement obligations
The Applicant’s oral evidence at the instant hearing regarding a fear of harm upon a return to Somalia
The evidence of the other witnesses regarding the Applicant’s fears of harm if return to Somalia

(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Findings: Other Considerations
Conclusion
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Decision
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 200 (Permanent) Refugee visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – non-refoulement -consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
BDQ19 v Minister for Home Affairs [2019] FCA 163 at [64],
DMH 16 v Minister for Immigration and Border Protection [2017] FCA 448
ETWK v Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Stowers [2020] FCA 407
Stone v Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
SECONDARY MATERIALS

Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b)
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
6 November 2020
INTRODUCTION AND BACKGROUND

RPQB (“the Applicant”) is a 25 year old citizen of Somalia.[1] Movement records indicate that the Applicant first arrived in Australia on 6 June 2011 and has not left Australia since that time.[2] He has remained in Australia on a Refugee Class XB Subclass 200 (permanent) Visa (“the visa”).[3]
[1] The Applicant’s name has been suppressed pursuant to a confidentiality order made under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth). See Exhibit R2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 2, paragraph [5]. Note: there is some conjecture in the material about whether the Applicant is 25 years of age or 22 years of age. I will discuss this aspect of the evidence later in these Reasons.
[2] Exhibit G1, G17, page 89.
[3] See the decision under review, Exhibit G1, G3, page 17; see also the Applicant’s SFIC, Exhibit A1, page 2, paragraph [9]; see also Respondent’s SFIC, Exhibit R2, page 1, paragraph [1].
The Applicant has an offending history in Australia that runs (in terms of sentencing episodes) from 15 October 2014 to 19 March 2019. His offending commenced approximately three years after his arrival in this country and has seen him dealt with for the commission of some 48 individual offences[4] punished by some 17 separate sentencing episodes.[5]
[4] This number of 48 includes three separate occasions of the Applicant coming back before the Court for a breach of a previously imposed sentencing regime.
[5] This number of 17 includes five sentencing episodes dealing with multiple offences on that given sentencing day. If I were to count each sentencing episode consequent upon the Applicant’s conviction for each individual offence, the number would become 33 sentencing episodes.
His extensive criminal history primarily revolves around themes of (1) a failure to respect lawful authority,[6] (2) domestic violent offending (including multiple contraventions of domestic violence orders), (3) offences against the person,[7] (4) offences against the property rights of others,[8] (5) several instances of mild or more menacing antisocial and/or dangerous conduct in public, [9] and (6) a conviction for a low-level drug offence.[10]
[6] Be it in the form of a failure to follow a direction or requirement of a law enforcement officer, a failure to appear in accordance with a previously given undertaking, breach of a probation order or breaching a previously imposed sentencing regime.
[7] Including assault/obstruct type behaviour against police officers, violence in a domestic context and assaults occasioning bodily harm against members of the general public.
[8] Comprising convictions for wilful damage, possession of tainted property, unlawful possession of suspected stolen property, stealing and fraud – dishonestly obtaining property of another.
[9] Comprising going armed so as to cause fear and commission of public nuisance offences.
[10] For possession of utensil/pipes etc that had been used in the commission of a drug offence.
Although objectively short, the Applicant’s frequency and level of offending quickly attracted the attention of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), whose Department, on 8 October 2015, mandatorily cancelled his visa pursuant to s501(3A) of the Migration Act 1958 (Cth) (“the Act”). On 20 September 2016, following the provision of material in response by the Applicant, a delegate of the Respondent Minister did decided to revoke that cancellation.
This revocation decision was communicated to the Applicant in writing,[11] receipt of which document was duly acknowledged by the Applicant.[12] That communication contained, inter alia, the following terms:
[11] Exhibit G1, G16, pages 85-86.
[12] Ibid, page 88.
“20 September 2016
…
Dear [Applicant]
Notification of decision to revoke visa cancellation under s501CA(4) of the Migration Act 1958
On 8 October 2015, your Class XB Subclass 200 Refugee (permanent) visa was cancelled under s501(3A) of the Migration Act 1958 (the original decision)…
After consideration of your response, the decision-maker has decided to revoke the original decision to cancel your visa.
S501CA(5) of the Migration Act provides that if the decision to cancel your visa is revoked the original decision is taken not to have been made. Hence you hold a Class XB Subclass 200 Refugee (permanent) visa, which authorises your continued stay in Australia.
Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.
…”[13]
[Emphasis in original]
[13] Ibid, page 85.
Subsequent to the abovementioned revocation decision, the Applicant further offended. In fact, his offending history resumed within six months after receipt of the revocation decision and the warning contained therein. Indeed, he found himself back before lawful authority as quickly as 28 February 2017, to be dealt with for contravention of a previously made domestic violence order. He then appeared before the Richlands Magistrates Court on 31 January 2018 and was convicted for “assault or obstruct police officer”[14] and sentenced to a head custodial term of three months’ imprisonment.
[14] Pursuant to s 790(1) of the Police Powers and Responsibilities Act 2000 (Qld).
There followed an appearance before the Brisbane District Court on 29 August 2018, when the Applicant was convicted for the respective offences of “common assault – domestic violence offence”[15] and “assaults occasioning bodily harm – domestic violence offence”[16]. Upon his conviction for the former offence, a head custodial term of 9 months’ imprisonment was imposed. Upon his conviction for the latter offence, a head custodial term of 18 months’ imprisonment was imposed. Thus, within a period of less than two years after receiving the abovementioned warning in September 2016, the Applicant committed offences attracting a cumulative custodial term of imprisonment 30 months, or two and a half years.
[15] Pursuant to ss 335 and 564(3A) of the Criminal Code Act 1899 (Qld).
[16] Pursuant to ss 339(1) and 564(3A) of the Criminal Code Act 1899 (Qld).
The pattern of offending did not cease upon the Applicant’s convictions imposed by the Brisbane District Court on 29 August 2018. Further sentencing episodes saw him receive head custodial terms of imprisonment as follows:
·10 December 2018: Stealing[17] – three months’ imprisonment;
·10 December 2018: Assault or obstruct police officer[18] – four months’ imprisonment;
·10 December 2018: Wilful damage, domestic violence offence[19] – nine months’ imprisonment; and
·19 March 2019: Assaults occasioning bodily harm[20] – 12 months’ imprisonment.
[17] Pursuant to s 398 of the Criminal Code Act 1899 (Qld).
[18] Pursuant to s 790(1) of the Police Powers and Responsibilities Act 2000 (Qld).
[19] Pursuant to ss 469(1) and 47(9) of the Criminal Code Act 1899 (Qld).
[20] Pursuant to s 339(1) of the Criminal Code Act 1899 (Qld).
It should be noted that the Applicant was dealt with for additional offending after his receipt of the abovementioned warning in September 2016, but those convictions did not involve the imposition of custodial time. While serving a term of imprisonment (i.e. in actual criminal custody), a delegate of the Minister, pursuant to s 501(3A) of the Act, decided on 1 March 2019 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test[21] because (1) he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months[22], and (2) he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, State or Territory.[23]
[21] Pursuant to s 501(3A)(a) of the Act; see also s 501(6)(a) of the Act.
[22] Pursuant to s 501(7)(c) of the Act.
[23] Pursuant to s 501(3A)(b) of the Act.
On 4 March 2019, the Applicant submitted a request for revocation of this second cancellation decision.[24] The delegate of the Minister decided on 6 August 2020, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[25]
[24] Ibid, G8, page 58.
[25] Ibid, G3, page 17.
The Applicant lodged an application with this Tribunal on 12 August 2020 seeking a review of the abovementioned decision dated 6 August 2020 not to revoke the cancellation of his visa.[26] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[26] Ibid, G2, pages 3-11.
The hearing of the instant application proceeded before me on 19 and 20 October 2020 and received oral evidence from the Applicant, his mother, his brother and the Consultant Psychiatrist, Dr Nina Zimmerman. The Tribunal also received written evidence. This written evidence was particularised into an agreed exhibit list, a true and correct copy of which is attached hereto and marked “A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[27]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[28]
[27] [2018] FCAFC 151.
[28] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[29] I will address each of these grounds in turn.
[29] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant has been sentenced to respective custodial terms as follows:
·30 April 2015 – one month imprisonment;
·28 July 2015 – three months’ imprisonment;
·28 July 2015 – one month imprisonment;
·28 July 2015 – 12 months’ imprisonment;
·28 July 2015 – four months’ imprisonment;
·23 March 2016 – six months’ imprisonment;
·23 March 2016 – six months’ imprisonment;
·23 March 2016 – six months’ imprisonment;
·31 January 2018 – three months’ imprisonment;
·31 January 2018 – three months’ imprisonment;
·29 August 2018 – nine months’ imprisonment;
·29 August 2018 – 18 months’ imprisonment;
·10 December 2018 – three months’ imprisonment;
·10 December 2018 – four months’ imprisonment;
·10 December 2018 – nine months’ imprisonment; and
·19 March 2019 – 12 months’ imprisonment.
Total: 100 months’ imprisonment (or, eight years and four months)
The Applicant therefore has a “substantial criminal record” within the meaning of that subsection 501(7)(c) such that he does not pass the character test. There can be no doubt that the custodial terms imposed upon the Applicant engage the provisions of s 501(7)(c) such that the Applicant does have a substantial criminal record.
From the date of his arrival in Australia (June 2011), until his removal from the Australian community (since at least March 2019), some eight and a third years of head custodial time has been imposed upon this Applicant consequent upon his offending. This equates to approximately 100% of his time in the general community of this country until his final removal from that community.
The custodial sentences imposed on the Applicant regularly involved his early release on either suspended sentences or parole. I note that what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[30]
[30] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) Concurrent sentences For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
It is readily conceded on behalf of the Applicant that he does not pass the character test. In his SFIC, the following concession appears:
“2. It is conceded the Applicant does not pass the character test by operation of s 501(6)(a) of the Act. The issue for the Tribunal’s determination is therefore whether under s 501CA(4)(b)(ii) of the Act there is another reason why the original decision should be revoked.”[31]
[31] Exhibit A1, page 1.
In submissions, the following concession was made:
“MR JOHNSTON:[32] So perhaps I’ll start with some concessions. It’s conceded, from the outset, that [the Applicant] does not satisfy the character test…”[33]
[32] Mr Barnaby Johnston of Counsel, representative of the Applicant (with Mr Johnston appeared Mr William Blake, also of Counsel).
[33] Transcript, 20 October 2020, page 130, lines 10-11.
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.[34] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[35]
[34] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, was revoked and was replaced by Direction 79. The above mentioned earlier decision of this Tribunal dated 8 June 2017 was decided pursuant to Direction 65. Due to the superseding of Direction 65 by Direction 79 on 28 February 2019, this decision will be decided pursuant to Direction 79.
[35] The Direction, sub-paragraph 7(1)(b).

The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[36]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[37]
[36] [2018] FCA 594.
[37] Ibid, [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(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;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
An initial point about the Applicant’s age
An initial point was propounded on behalf of the Applicant regarding the Applicant’s actual date of birth. The ultimate purpose of the submission was that the claimed discrepancy or error in the recording of the Applicant’s date of birth has a “flow-on effect”[38] upon my consideration of weight allocable to various componentry of the Direction, “most notably, the nature and seriousness of the offences”.[39]
[38] Transcript, 20 October 2020, page 130, lines 31-32.
[39] Ibid.
In one of his statements, the Applicant seeks to summarise this discrepancy thus:
“My age
5. I was born on [day and month of birth redacted] November 1997.
6. I celebrate my real birthday every year on this date. What I call the ‘Australian birthday’ is on 1 January. When we have a New Year’s party people wish me happy birthday; some people say ‘so you are New Year’s boy, huh?’ I tell them ‘nah, I was actually born on [day and month of birth redacted] November’. This happens because all the documents since I arrived in Australia says I was born on 1 January 1995.
7. My mother has been telling me as long as I can remember that I was born on [day of birth redacted] November. I don’t remember anything about my life before the refugee camp. I only found out that I was born in Somalia when I was at the refugee camp.
8. I know we moved to the refugee camp in 2001 because my mother has told me this. I would have been about two and half or three years old then. I don’t remember anything before this age.
9. I used to get toys on my birthday. Something nice would be bought for me on that day. I remember my mum bought me a toy spider that crawled one year, it was battery operated. I also remember when I was about 7 or years old, in 2004 or 2005 I was given a hand-held toy game on my birthday on [day and month of birth redacted]. This was amazing.”[40]
[40] Exhibit A3, pages 1-2.
As I understood this submission in relation to the Applicant’s age, its central theme involved a contention that if the Applicant is now accepted to be two years younger than he was previously thought to be, then the offending that occurred at a certain point in his criminal history may have been punished or otherwise dealt with in a different way, because at the time of imposition of those sentences, he was a juvenile. For reasons that follow, I have misgivings about basing any determinative finding about the nature and seriousness of the Applicant’s offending on that submission.
The submission derives from five elements. First, it was said that none of the previous decisions made in relation to the Applicant’s visa status made any reference to the possibility of him being two years younger than he was first thought to be upon arrival in Australia. Reference was made to the sentencing remarks of one of the previous judicial sentencing officers who sentenced the Applicant on 19 March 2019, namely, His Honour Judge Shanahan DCJ of the Brisbane District Court. In his sentencing remarks, Judge Shanahan noted the following:
“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 the [day of birth redacted] November 1997, which makes you 21 years of age at this time.”[41]
[41] Exhibit R1, TB5, page 143.
On this basis, it is propounded that “…we can all agree, sensibly, that [the Applicant] was not born on 1 January 1995.”[42]
[42] Transcript, 20 October 2020, page 131, lines 32-33.
Second, it is pressed on the Tribunal that the evidence of the Applicant himself, both in his written and oral evidence, militates in favour of a finding that he was born in November 1997 rather than 1 January 1995. It is said, with some force, that this evidence from the Applicant was unchallenged. Third, the contention is sought to be based on the evidence of the Applicant’s mother, Ms MB. Her written evidence was largely mirrored in her oral evidence. At paragraph [20] of her statement, she adamantly suggests her son was born on November 1997, as opposed to 1 January 1995:
“20. I see that [the Applicant]’s age has become an issue again. I get very distressed when I talk about this and feel like I have failed him because I can’t read or write. I can see that he has had a lot of trouble because he was always thought to be older than he was.
21. When we arrived in Eritrea after fleeing Somalia [the Applicant] was just three years old, he was very small. We walked such a long way and I carried him on my back for most of it. I know how old my son was.
22. When I realised that [the Applicant] was recorded as being born in 1995 I tried to change it at the camp, they said that our documents would be cancelled if the date of birth is wrong.
23. When the Australian mission came to the camp in 2009 or 2010 to interview us, I told them that [the Applicant’s] date of birth was wrong but they said all the paperwork would have to be done again if I tried to change his date of birth at that time. They said its best to wait until we get to Australia.
24. After that, before we could come to Australia we had to do blood tests. When IOM people who came from Kenya took [the Applicant’s] blood he fainted. I told them that [the Applicant] is only 13, they too said I can’t change the paperwork now or we will lose our pass to come to Australia.
25. Soon after we came to Australia [the Applicant] got very sick and he had to go to hospital. The medicine he was given made him sick and he threw up blood. I told the doctors that this is because he is much younger than they think. The doctors told me that they can’t change documents but to tell that to any other hospital if [the Applicant] is taken in again.
26. [The Applicant] doesn’t even know but I tried to change the date of birth a few times, I even told his school and asked the caseworker to help. They all gave me advice but no one helped me to change it, I feel sad that it’s because of my background and because I can’t read and write that I was not able to fix my son’s date of birth.
27. I can say without any doubt, and swear anywhere you want me to swear, that [the Applicant] was born on [day of birth removed] November 1997.”[43]
[43] Exhibit A5, pages 13-14.
Fourth, the further basis of the contention was said to be found in the affidavit of the Applicant’s former domestic partner (and mother of his infant child), Ms CT. Her written evidence says the following:
“[The Applicant’s] age
9. [the Applicant’s] lawyer told me that the Minister thinks [the Applicant] was born on 1 January 1995.
10. This is not the case. I have always known his birthday as [day of birth redacted] November 1997. I am almost two years older than [the Applicant], we have joked about this in the past and I have thought it was a bit weird even at times. If [the Applicant] was born on 1 January 1995, he would be over a year older than me.
11. I have organised birthday parties for him, including his 19^th in 2016, we only had a couple of people around because I was pregnant at the time. [The Applicant] will be 23 years old this November.
12. I have heard people once in a while joke about him being a new year baby, but no one really paid any attention to it as it was just a joke.
13. I have always known to [the Applicant] to have been born on [day of birth redacted] November 1997, there is no reason why he would have lied to me about this.”[44]
[44] Exhibit A4, pages 6-7.
Fifth, and finally, it is said that the contention is supported by the evidence of the Applicant’s brother, Mr KG. I have noted the content of the Applicant’s written statement.[45] It does not contain significant reference to the Applicant’s age, except to say “[The Applicant] was born on [day of birth redacted] November 1997, I was nine years old when he was born. I remember this well.”[46] In his evidence in chief, the following transpired on this specific point:
[45] See Exhibit A6.
[46] Ibid, page 1.
“MR BLAKE: Okay. Now, KG, you say in your statement that your brother – you say in your statement that your brother [the Applicant] is born on [day of birth redacted] November 1997, is that correct?
INTERPRETER: [day of birth redacted] of November 19?
MR BLAKE: 1997.
INTERPRETER: That’s correct.
MR BLAKE: How old were you when your brother was born?
INTERPRETER: Nine years.
MR BLAKE: And is it correct that you were living in Somalia at the time when your brother [the Applicant] was born?
INTERPRETER: Yes, that’s correct. Where he was born, the house he was born I was living there.
MR BLAKE: And at that time in Somalia is it correct that there was a civil war? There was a war occurring at that time?
INTERPRETER: Yes, that’s correct.
MR BLAKE: Now, can I ask, did you witness any violence when you were living in Somalia?
INTERPRETER: Yes, I witness actually a lot of war to each other from tribe to tribe from the - and rebel to rebel and then we moved to Eritrea.
MR BLAKE: And you moved - is it correct to say when you went to Eritrea you went into the Umkulu Refugee Camp?
INTERPRETER: Yes.
MR BLAKE: And you did that – that occurred in 2001 when you were 13 years old and [the Applicant] was three years old, is that correct?
INTERPRETER: Yes, that’s correct.”[47]
[47] Transcript, 20 October 2020, page 119, lines 25-46, and page 120, lines 1-17.
To my mind, the totality of the evidence with regard to the Applicant’s date of birth must be approached with caution. To the best of the Applicant’s knowledge, he was born in November 1997 for as long as he can remember. The primary basis for that belief is due to what he says his mother told him.
The only independent reference or intervention into the issue can be found in the mother’s evidence when she said: “When the Australian mission came to the camp in 2009 or 2010 to interview us, I told them that [the Applicant’s] date of birth was wrong but they said all the paperwork would have to be done again if I tried to change his date of birth at that time. They said its best to wait until we get to Australia.” Even then, whatever initial impression or direction may have been formed or given by the Australian Mission can only have been based on what the Applicant’s mother told that Mission. Further, Judge Shanahan’s acceptance that the Applicant was 21 years of age at the time of his sentencing in March 2019 was based on His Honour’s acceptance of an assertion by the Applicant’s mother that the Applicant was born in November 1997.
In her statement, the Applicant’s former domestic partner (Ms CT) could put it no higher than that “I have always known his birthday as [day of birth redacted] November 1997” with no external verification or proof. Likewise, I have misgivings about the evidence of the Applicant’s brother when he speaks of being 13 years of age when the Applicant was three years old. This presupposes that the Applicant’s brother is absolutely certain of his own age, such that he can now act as a reliable reference point for ascertaining the Applicant’s age.
The upshot of the Applicant’s later asserted date of birth is said to impact upon the extent to which this Tribunal can now assess a particular portion of his offending history. In particular, when one has regard to the 17 separate sentencing episodes apparent in his criminal history, it is now propounded that the first 12 of those sentencing episodes related to offences that the Applicant must have committed when he was 17 years of age or younger, specifically, 16 years of age. It was submitted that the relevant legislative framework operating in Queensland at that time governing the Children’s Court jurisdiction has an upper limit for juvenile offenders of 16 years and did not include 17 year old offenders. It was further submitted that, following the introduction of an amending bill in the Queensland Parliament in 2016, apparently passed and assented to in 2018, the jurisdiction of the Children’s Court in Queensland has, since 2018, been extended to include 17 year old offenders. It was suggested that this amending bill “…is in recognition of the special need to intervene in children’s lives in a specific and targeted way.”[48]
[48] Transcript, 20 October 2020, page 133, lines 1-2.
The contention was then further refined to suggest that the first five sentencing episodes appearing in the Applicant’s criminal history were offences that were committed when he was 16 years of age, and that those offences ought to have been dealt with in the Children’s Court, as its jurisdiction was then legislatively defined. The difficulty with that contention is that sentencing episodes 6-17 were committed whilst the Applicant was aged 17 years and over. The further difficulty with that contention is that even if the amended jurisdiction of the Children’s Court applied prior to the commencement of the Applicant’s history, sentencing episodes 12-17 (that sought to punish the commission of some 21 individual offences) involved offences committed by the Applicant after he had attained the age of 18 years. It should be noted that for these specific sentencing episodes (i.e. 12-17) his offending was punished by cumulative head custodial terms constituting 79 months (or six years and seven months) of custodial time.
There are two resulting contentions from this primary contention. The first is that, had the sentencing episodes that occurred prior to 23 March 2016 dealt with the Applicant as a juvenile offender, “all of those that run before that [i.e. 23 March 2016] were matters that could have been dealt with in the children’s jurisdiction.”[49] This resulting contention crystalises into this:
“…that means that a majority of his offences could have been dealt with in a different jurisdiction. What that means is, when one is interpreting the penalties for which he has received previously, when one is regarding the seriousness of the offences when one looks at the length of the sentence imposed, it’s important to keep in mind that those that were sentencing him apparently were not aware of his true stated age.”[50]
[49] Ibid, page 133, lines 21-22.
[50] Ibid, lines 24-30.
I am not certain that this resulting first contention goes anywhere. This is because the Applicant’s offending commencing from the sentencing episode on 23 March 2016 onwards, was punished by the imposition of 79 months of cumulative head custodial time. I do not accept that his offending dealt with post-23 March 2016 would have been reliably ameliorated by him being dealt with as a juvenile for his offending committed pre-23 March 2016.
The second resulting contention is that the Applicant’s offending for which he was punished prior to 23 March 2016 should somehow now be re-cast such as to be regarded as less serious than what it is recorded to be in the criminal history. The basis of this contention derives from certain evidence provided by the Consultant Psychiatrist, Dr Zimmerman, “about the formation of a young man’s brain.”[51] It was suggested that this apparent misconception in the age of the Applicant must run parallel with Dr Zimmerman’s evidence that, at the time he committed those pre-23 March 2016 offences, the Applicant’s brain was still developing. Stated with particularity, the contention was put thus:
“…in relation to the seriousness of the offending, you’ve heard evidence, from Dr Zimmerman, about the formation of a young man’s brain. You’ve heard that, at a time when these offences were committed, that brain was simply developing and that he presented with problems which are, with respect, very common for those who have come from disadvantaged backgrounds, traumatic backgrounds, substance abuse issues, that it is quite common for people from those backgrounds, with those issues, to present to the court - commit offences which [the Applicant] committed.”[52]
[51] Ibid, line 33.
[52] Ibid, lines 32-3.

I will deal with the views of Dr Zimmerman later in these reasons when assessing the Applicant’s risk of recidivism. For the instant purposes of assessing the nature and seriousness of the Applicant’s offending history, I have misgivings about utilising the issues contended around the asserted misconception of the Applicant’s age to now re-characterise the nature of his offending away from what it is recorded to be in the criminal history. This can be seen in an exchange between myself and the Applicant’s representative during submissions:
“MR JOHNSTON: It’s in those circumstances that he was provided that warning, and you’ve heard what Dr Zimmerman has to say about the appreciation that someone has with that - the brain formation at that time or the youthfulness, the appreciation that someone has of the seriousness of the situation.
SENIOR MEMBER: But how can this tribunal … in this proceeding, safely purport to safely re-characterise someone’s offending history, in circumstances where the courts that imposed those sentences on him, in the past, haven’t varied or otherwise taken into account his now claimed age, in terms of varying or now retrospectively amending those sentences. How can I go back and do that now?
MR JOHNSTON: Yes. I accept that, Senior Member, however when the Minister argues that one of the ways you can take into account the seriousness of the offending is to look at the sentence that was imposed. What I am saying is, this factor was not known to any of those judicial officers - - -
SENIOR MEMBER: One moment. He’s gone off, I can’t hear him. Can you hear me now? Can you hear me now, Mr Johnston?
MR JOHNSTON: Yes, I can.
SENIOR MEMBER: Right. You were up to the phrase, seriousness of the offending, relative to his age at the time.
MR JOHNSTON: Yes. So my point is, it is the Minister who says you can reflect on the sentence that was imposed, I say that there was this other consideration, in response to that argument made by the Minister.
SENIOR MEMBER: Okay. But for the purposes of applying direction 79, the furtherest(sic) I can take that would be in terms of the attribution of weight to the given subparagraph, in 13.1.1, that’s as far as I can take that.
MR JOHNSTON: I agree with that. But, ultimately, I return to it, in terms of the assessment of risk and when Dr Zimmerman talks about it. Yes, so I’ve injected it in here, but it become relevant, across the board, in my respectful submission, Senior Member.”[53]
[53] Ibid, page 134, lines 38-46, and page 135, lines 1-29.
The responsive submission made on behalf of the Respondent (with which I concur) was put thus:
“MR KYRANIS:[54] Now, in terms of the sentences imposed for the applicant’s offending and the submission regarding the applicant’s claim that he was younger than the basis upon which he was sentenced, the fact remains that the applicant has been sentenced to lengthy terms of imprisonment as an adult, even if it is accepted by the tribunal that the applicant’s year of birth is 1997.
The submission advanced on behalf of the applicant falls away in relation to the offences he was sentenced for as a purported 17 year old because the law only changed in 2018 to include 16-year-olds – sorry, to include 17-year-olds when the applicant was a then adult. I don’t profess to be a specialist in the criminal law pertaining to juveniles, but to assist the tribunal, 17-year-olds, on my research, have been dealt with in the justice system since the Youth Justices Act was amended by the Youth Justice and Other Legislation (Inclusion of 17 year old persons) Amendment Act 2016, which commenced on 12 February 2018. So it’s really only relevant to the first five sentencing episodes when the applicant was 17 years old when he could have been dealt with as a juvenile.
The submission appears to be that they were missed opportunities which may have affected the applicant’s subsequent offending, however it’s not clear what those missed opportunities were, and such a submission would invite the tribunal to speculate about what the applicant might have been sentenced to.”[55]
[54] Mr Jake Kyranis, Senior Associate, Sparke Helmore, legal representative for the Respondent.
[55] Ibid, page 157, lines 17-39.
Accordingly, while the Applicant has every right to propound an asserted issue about the calculation of his age at a particular point during his criminal history, the various aspects of the contention invite the Tribunal to take an unsafe course of conjecture and speculation about the nature of (1) sentence he would have received if sentenced as a juvenile, and (2) how those alternate sentences may have impacted upon the subsequent evolution of his offending history and pattern of behaviour. To my mind, it would be unsafe to proceed on this basis.
A conditional concession by the Applicant
In relation to the nature and seriousness of the Applicant’s previous offending, the Applicant makes the following conditional concession in his SFIC: “16. It is conceded that the Applicant has been convicted of serious offences.”[56] This concession is predicated on the submission that its relevance should be limited to an assessment of future harm to members of the community were the Applicant to offend in a similar or identical way:
“17. It is noted that the seriousness of offending is only relevant in evaluating the harm to Australia in the event that the Applicant re-offends in a similar manner. That is, the exercise of the discretion to allow the Applicant to participate in the Australian community, is not intended to punish the Applicant for the seriousness of his past offending...”[57]
[56] Exhibit A1, page 4.
[57] Ibid.
The contrarian submission made on behalf of the Respondent is that: “The applicant’s offending should be viewed as very serious...”[58] Upon an application of the relevant factors appearing at paragraph 13.1.1(1) of the Direction I endorse the Respondent’s contention that the Applicant’s offending history in Australia is “very serious.”
[58] Exhibit R2, page 8, paragraph [28].
Application of Paragraph 13.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. They comprise:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), of government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since being otherwise made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Sub-paragraph (a) of Paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. As mentioned, the Applicant has a substantial criminal history committed over a relatively short period of time. The simultaneous brevity and intensity of the Applicant’s substantial offending history is particularly impressive, not just because of the number of offences and resulting sentencing episodes, but because he has committed the offences as a quite young man, at a stage of his life where he barely past his mid-20s.
In Minister for Home Affairs v Stowers [2020] FCA 407, the Federal Court was of the view that the reference to the words “very seriously” in this sub-paragraph (a) remove the Tribunal’s discretion to characterise such offending in any other light:
“45…I can only think that the words “very seriously” were chosen advisedly in drafting Direction 79. These words are not some flourish of the pen. There was no discretion reposed in the Tribunal to view the offences in some lesser or different light. But this is what the Tribunal did.”[59]
[59] Per Yates J.
The reality of the offending history is that it contains repeated references to very serious violent offending. Even a cursory examination of a cross-section of this aspect of the offending leads to no other finding. On 28 July 2015, the Applicant appeared before the Richlands Magistrates Court to be sentenced for one count of assaults occasioning bodily harm pursuant to s 339(1) of the Criminal Code Act1899 (Qld). The relevant portion of the Queensland Police Service Court Brief reads as follows. The circumstances of the offence are at once disturbing and sobering:
“On Thursday the 9^th of April 2015 at 4:30pm, the victim has stated the witness had attended her residential address in fear from the defendant [i.e. the Applicant] sending her a threatening text message saying “Your dead cunt.” Whilst standing in the front yard, the victim and witness have seen the defendant drive past heading towards the witness’s house. They have then ran away down the road where the defendant has spotted them and chased on foot.
The defendant has caught up to the witness and has grabbed her by the hair and threw her to the ground. The defendant has then began to punch and kick the witness in the body, head and face. The victim has attempted to stop the defendant by pushing him off the witness. The defendant has then punched the victim in the left side of her face with his right fist knocking her to the ground.
The defendant has then continued to kick the witness in the body and head again. The victim has got back up and attempted to push the defendant off the witness again. The defendant has then punched the victim twice on her right cheek with his right fist knocking her to the ground.
The defendant has then forcefully dragged the witness for some time down the street continually hitting and punching her along the way. The victim has followed them during this time but has been afraid to intervene. The Witness and victim have been able to escape the defendant and run away towards a school. The defendant gave chase and grabbed hold of the witness. The victim has continued to run away and returned to [address redacted] to alert the witness’s mother who contacted police.
At approximately 6:30pm, Police attended [address redacted] in Acacia Ridge in relation to an Assault complaint. On arrival police took up with the victim accompanied by her mother and the witness’s mother. Police observed substantial bruising and swelling to the victim’s right cheek and left side of her face. Police obtained a notebook version of events from the victim and returned to Acacia Ridge Station to make further inquiries.
Whilst at the station the Witness’s mother called police to say that the witness had returned home battered and bruised. Queensland Ambulance Service attended the scene and the witness was transported to the PA hospital for further medical assessment. Police assisted with the transport and obtained a signed notebook version of events from the witness which corresponded with the victim’s version.
At approximately 10:20pm Police attended the defendant’s residential address to speak to him in relation to the Assault, Domestic Violence and an outstanding warrant. The defendant’s mother answered the door and told police that he was not home. Police conducted a search of the address locating a male hiding in a laundry cupboard behind a washing machine. The male provided police with photographic identification confirming his identity to be that of the defendant. The defendant was subsequently arrested for an outstanding warrant and transported to Richlands Watch house.
At the Watch house, the defendant was given the opportunity to participate in an Electronic Record Of Interview (EROI) in relation to the Assault allegations but declined. The defendant stated that he did not want to participate because “there will be no assault complain [sic] because she is my bitch.”
The defendant was subsequently issued a Notice to Appear in Richlands Magistrates Court on 30^th of April 2015 and released on Domestic Violence release conditions.”[60]
[60] Exhibit R1, TB1, page 44.
To my mind, the evidence of the Applicant’s mother in cross-examination about not knowing the Applicant was in the subject residence when the police came looking for him both lacks credibility and does neither him nor her any favours. The following transpired in cross-examination:
“MR KYRANIS: The police have provided a report which says that on 9 April 2015 they attended your house looking for your son. You said that he was not home at the time but the police found him hiding in a laundry cupboard, is that correct?
INTERPRETER: Yes, that’s right, I was upstairs. Yes, that’s right. Yes, that’s right, I was upstairs. I didn’t know he was in because he had a key and he was already in. And when I opened the door they ask me “Where is your son?” I told them “I don’t know”. And then after that they checked around and they found him. But I was not aware of it, I was upstairs.”[61]
[61] Transcript, 19 October 2020, page 85, lines 33-42.
For this offending, the Applicant was convicted and sentenced to a head custodial term of 12 months’ imprisonment.
On 23 March 2016, the Applicant came before the Brisbane Magistrates Court for sentencing on one count of “Going armed so as to cause fear”, pursuant to s 69(1) of the Criminal Code Act 1899 (Qld). Again, the circumstances of this offending can be construed as nothing other than instantly alarming and directly threatening to other members of the community:
“On Saturday the 16^th of May 2015 at approximately 3:30pm a disturbance occurred at the Shell Service Station at Macgregor Street, Macgregor involving a large group of youths including the defendant in this matter. As a result of this disturbance the defendant has armed himself with a hammer and chased two males into the Westfield Garden City complex located nearby.
The defendant chased the two males into the Dream Collections shop within the Garden City shopping centre. Once inside the store the defendant continued to threaten the males with the hammer in such a manner that caused the males to fear for their safety and cower behind shelves within the store for cover.
During this altercation the store was open and there were staff members present including the store owner [name redacted]. This altercation caused fear to [store owner name redacted] and the female shop assistant [name redacted].
CHARGE TWO
The defendant has then used the hammer to smash a glass display shelf cover on one of the shelves on the southern side of the store. This caused the glass shelf to shatter and the items that were on the shelves to fall to the ground.
The defendant and two males then ran from the store towards the busway.
Several Police units attended the Garden City Shopping complex and the Shell Service Station in relation to the disturbance. At this time Police from Upper Mount Gravatt Police Station located the defendant in possession of the hammer at the Shell Service Station. The defendant was then conveyed to the Upper Mount Gravatt Police Station in relation to this matter.
Police from the Morningside Child Protection and Investigation Unit then attended the offence location and viewed cctv footage of this incident. This cctv footage depicts the defendant chasing the two males within the store with the hammer and smashing the glass shelving.
Police from the CPIU then attended the Upper Mount Gravatt Police Station and took up with the defendant in this matter. The declined to be formally interviewed in relation to this matter but stated that he chased the two males into Garden City as they had robbed him of his mobile telephone and car keys at the Shell Service Station and his actions was a result of his anger.
The defendant was then issued with a notice to appear in the Holland Park Magistrates Court on the 10^th of June in relation to this matter.”[62]
[62] Exhibit R1, TB2, page 127.
The relevant sentencing officer for this offending with Ms Hall, SM, of the Brisbane Magistrate’s Court. In sentencing the Applicant, Ms Hall SM made the following remarks:
“… Really, you were caught up in the circumstances there. I understand that, that you were surrounded by six people that you were – started to be a victim yourself.
However, you did much more. You chased them with a hammer and then and I understand your decision not to use the hammer on people but to use it on property – you used it on the property of someone else. Some innocent person who’s just trying to make a living and you destroyed their property and that hurt them very much and frightened them very much.
…
In relation to – that’s for the going armed. For the hammer – damaging the property, you’re also sentenced to six months imprisonment also added on but concurrent – running at the same time. At the end of day my aim is that you only have six months added on and that you have parole release date today. That was very serious behaviour and although you started to be the victim your rage took over, didn’t it.
…
And you just – and I note that you did at least make some attempt to control your rage by damaging property but not people. Property’s replaceable, people aren’t. So I note that.
…
All right. … I wanted to say you’ve been here for five years but your offending went out of control over a short period of time.”[63]
[My underlining and emphasis]
[63] Exhibit R???, G6, pages 45-49.
It is notable that the Applicant came before Ms Hall, SM, in March 2016 and that even though he had only been offending for a period of less than two years by the time he came before Her Honour, his conduct was nevertheless categorized by Ms Hall, SM, as ‘very serious behaviour’ and that his offending ‘went out of control over a short period of time’. That ‘short period of time’ runs from his first sentencing date (October 2014) to the date he appeared before Ms Hall, SM, in March 2016. Such a trajectory in the seriousness of the offending is, to my mind, remarkable for an offending history that, by that time, had run for less than two years.
On 29 August 2018, the Applicant came before Her Honour Judge Ryrie DCJ of the Brisbane District Court for sentencing on two specific counts of assault occasioning bodily harm and common assault respectively, both of which involved commission of a domestic violence offence. This offending was perpetrated upon the abovementioned Ms CT, the then-wife of the Applicant. Significantly, Ms CT was pregnant and carrying the Applicant’s child at the time of the subject offending. Judge Ryrie made the following remarks when sentencing the Applicant:
“The maximum penalty for the respective offending … are seven years and three years. It is an aggravating feature obviously, that each of those was a domestic violence offence. That is recognised under the Penalties and Sentences Act.
The offence – the offences arose in the context of what started off as a verbal argument. You asked for something to eat. She refused. You knocked some objects around on the table and threw a cushion at her, and, ultimately, she responded when you started to walk towards her by picking up a telephone – sorry – a television remote which struck you in the head. And you became angrier. Consequently, the offending then arose after that. She tried to leave the house. You told her to go to the living room. You approached her and punched her to the face. She also at that time felt some pain to her stomach and obviously felt a movement, as she described it, in her left eye. Count 4 arose in the context of – the common assault that followed was that you slapped her to the face and spat in her face. You told her to go to the bedroom, and she was apologising to you. And, ultimately, not long after another verbal exchange, she packed up and ultimately left.
Police and ambulance arrived. They noticed, amongst other things, severe swelling and bruising to the left side of her face as well as bruising to her arms. She suffered, in effect, bruising to her left eye, bruising to the left side of her forehead, and later that evening you spoke with police. You admitted that you had done the wrong thing by punching her to the face, and you also acknowledged at the relevant time that she was pregnant. You denied [indistinct] the remainder of the incident, and, ultimately, you were charged, as I have said, with the offences for you have now pleaded guilty and accepted responsibility.
…
You have a criminal history. … For someone so young, it is clear that, on my calculation, you had nine contraventions of domestic violence orders that were in place. … On two occasions at least, you have used physical violence which breached domestic violence orders that were in place against other female partners for want of a better description, namely, girlfriends and the like.
…
I have had regard to your background and where you grew up, but the fact remains the same. You have been in Australia since June of 2011. You have been educated
as well in school here, and you have worked here. And you need to appreciate that when you come and live here that you have to abide by what is appropriate behaviour and respectful behaviour towards your partners that you may well get into a relationship with. Clearly, you were lacking again in acknowledging that your conduct was not the appropriate way to respond when you were having a verbal argument on the night in question by using your fists against her, slapping her or, indeed, even spitting in her face. It is just inappropriate even if she had thrown the television remote at you and it had hit you in the head.
…
… It is true you have youth still on your side in that you were, at best, in your early 20s, but you do come with a history that is simply deplorable, in a sense, in the way that you have responded in the past towards women that you have been in a relationship with …
…
So in the circumstances, I do not consider it out of range that an 18 month term of imprisonment be – be imposed. Even though you are young and youthful, your past history is of some concern to me, and also the nature of the offending on this occasion was also concerning. It also demonstrates to me that you got involved, once again, in inappropriate behaviour towards someone you were in a relationship with, and hopefully while you are on parole, they will be able to give you some guidance, as I have tried to strongly recommend that they give you, in order that you stop behaving this way, [Applicant].
Otherwise, you will just become a blight on society. You will be just in jail, and you will stay there.”[64]
[My underlining and emphasis]
[64] Exhibit G1, s 501 G Documents, G5, pages 39–40.

The Applicant took nothing from these warnings and admonitions from Judge Ryrie, nor, it would seem, from any of the previous abovementioned sentencing judicial officers. As mentioned, the Applicant came before Judge Ryrie for sentencing on 29 August 2018. There followed two subsequent sentencing episodes in December 2018 and March 2019. From those sentencing episodes, judicial sentencing officers punished the Applicant by imposition of a cumulative head custodial time of 28 months. In light of what followed the offending dealt with Judge Ryrie, it is difficult to characterise the Applicant’s offending as anything other than ‘very serious’.
In terms of convictions for violent offending, the next relevant sentencing episode occurred on 19 March 2019. On that day, the Applicant found himself before His Honour Judge Shanahan DCJ of the Brisbane District Court for sentencing upon a conviction (pursuant to a jury’s verdict) for one count of assault occasioning bodily harm. The relevant Queensland Police Service Court Brief records the following circumstances of the offending:
“…
The defendant and victim were friends prior to emigrating to Australia from Somalia.
The defendant, [i.e., the Applicant], is in a relationship with [name redacted]. The defendant attends [address redacted] regularly to spend time with her. The defendant’s girlfriend also resides her sister “[name redacted]”.
At about 2pm on Saturday the 4^th of November 2017 multiple police from Inala station attended [address redacted] Inala in relation to an assault.
Police observed the victim was bleeding from a wound to the right side of his face. The victim reported soreness to his head and throat. A complaint was received from the victim.
The victim stated on this day he, the defendant and another friend; witness [name redacted] went to visit the defendant’s girlfriend at Inala. Victim stated that they and consumed liquor prior to attending.
Victim stated the defendant requested him to go outside to talk about something. Victim stated whilst outside in the front yard and then down the street he was assaulted by the defendant on more than one occasion. The victim stated he did not consent to a fight with the defendant and claimed being punched to the jaw at some point and being dazed from the assault. Victim was transported by QAS to QEII Hospital for medical attention.
Police spoke with witness [name redacted]. stated he was in the carpark at the nearby Mission Australia building. [Name redacted] reported seeing the defendant and victim walk to the corner of [address redacted] approximately 25m from the unit, [name redacted] saw the defendant and victim conversing before exchanging punches.
[Name redacted] saw the defendant punch the victim causing the victim to fall to the ground. [Name redacted] states the defendant grabbed the victim’s head ‘like a watermelon’ and struck the victim’s head with his knee about four times. The defendant, approximately 50m away recalled the sound of the knee strikes being like a ‘basketball hitting the ground’. [Name redacted] states thinking ‘if I don’t get involved he will be killed’. [Name redacted] called associates to call police and ambulance and ran to intervene. [Name redacted] then approached the parties shouting at the defendant to stop.
As [name redacted] closed distance he saw the defendant repeatedly punching the victim to the back of the head. [Name redacted] states the victim was unconscious and was bleeding from the mouth. He observed a graze to the victim’s cheek. [Name redacted] states the victim regained consciousness shortly after however was in a disoriented state.
Police located and spoke with the defendant inside the unit. Police observed the defendant had cuts to his left hand knuckles and significant swelling in his right hand. The defendant stated seeing the victim, ‘touching’ [name redacted] in a ‘sexual way’ in the unit and stated seeing the victim touch [name redacted]’s hair which caused the defendant to become angry and feel compelled to intervene to defend her honour.
The defendant stated a conversation in Somali occurred just prior to the defendant and victim leaving the unit.
The defendant claimed that the victim invited him outside to fight. The defendant claimed the victim wanted him to breach his bail and be sent to jail.
Police spoke with Witness [name redacted] who stated seeing no assault by the victim upon [name redacted] as claimed by the defendant. Witness [name redacted] stated it was the defendant who insisted he and the victim go outside to sort it out. Witness [name redacted] stated the victim argued against a confrontation.
Police spoke with the witness [name redacted] who stated she wished to make a formal complaint of indecent assault against the victim.
[Name redacted] refused to provide any further information. [Name redacted] was assisted by Mount Gravatt detectives. Defendant was arrested for assault occasionally bodily harm and charged to appear before the Richlands Magistrates Court on 23/11/17 and released on bail conditions.“[65]
[65] Exhibit R1, TB1, pages 100–101.
His Honour Judge Shanahan made the following remarks when sentencing the Applicant:
“For the purpose of sentence, my view is that that independent observer’s evidence should be accepted. His evidence was that you then delivered a punch to the complainant and he fell to the ground. On the basis of that man’s evidence, he was unconscious and not moving on the ground. That man then heard and saw you delivering blows by a knee to the complainant’s head on a number of occasions. He yelled out for you to stop. You then knelt on the complainant’s back because he was facedown [sic] and punched him a number of times to the back of the head. His evidence – the complainant’s evidence was that he woke from unconsciousness to find injuries to his face that he could not explain. He explained he suffered a number of injuries, including abrasions and bruising to his face area, particularly to his right cheek.
Your defence was that you simply did not deliver those blows whilst he was on the ground. That has plainly been rejected by the jury. I am also of the view the evidence indicates that both you and the complainant were heavily intoxicated at the time. I sentence you on the basis that it was initially a consensual fight but once the complainant was incapacitated on the ground, you delivered a number of blows to him which caused the bodily harm. In my view that makes this offence serious in that it was an attack upon an unconscious person and, as I said to your barrister, you are lucky that you did not cause more injuries.
…
… you have got a background as a refugee. You spent your childhood in refugee camps and you have come to Australia only in recent years but you have amassed quite a significant criminal history in that time; of concern are the offences of violence. ”[66]
[My emphasis and underlining]
[66] Exhibit R1, TB4, page 143.
To my mind, the objectively very serious nature of this offending can be demonstrated by Judge Shanahan’s acceptance of the evidence of the independent observer who, relevantly, said that (1) the Applicant struck the victim’s head with his knee about four times; (2) from 50 metres away he (the witness) could hear the victim’s head colliding with the Applicant’s knee which reminded him of the sound of a basketball being bounced on the ground; and (3) he (the witness) formed the belief that “if I don’t get involved he [the victim] will be killed”. It is also notable that in terms of the objective seriousness of this offending, that Judge Shanahan observed that the Applicant was lucky not to have inflicted more serious injuries upon the victim.
I have had regard to the nature of the Applicant’s very serious violent offending particularised in the respective sentencing episodes that occurred on 28 July 2015, 23 March 2016, 29 August 2018, and 19 March 2019. There can be no other safe finding save and except that this sub-paragraph (a) of Paragraph 13.1.1(1) of the Direction militates very strongly in favour of a finding that the totality of this horrendous history must be viewed as ‘very serious’.
Sub-paragraph (b) of Paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
I have earlier particularised the circumstances of the Applicant’s conviction for ‘assaults occasioning bodily harm’ which involved him administering punches to two female victims and dragging one of those victims by the hair. An initial point involved an asserted discrepancy between the Applicant’s evidence at the hearing before me about whether this offending involved one or two female victims. Ultimately, the point goes nowhere because there was agreement from the Applicant’s representative that whether one or two female victims were involved did not impact at all upon the seriousness of the offending. For the sake of completeness, I will cite the relevant portion of the transcript:
“Mr JOHNSTON: … You heard the respondent refer to one of the offences – in one of the offences that there are a number of victims, so two females involved. So he said ‘victims’. But you’ll recall the evidence of the applicant was there is only one victim in that case and that was the matter that I was addressing the Senior Member on in that it is difficult to determine from the priors and the summary sheet on the precise basis in which a matter resolves.
When one attends the court hearing, obviously negotiations are made on the day and that’s done. It was never put positively by, I respect the complexity in terms of the rule of Browne v Dunn, but it was never put directly to [the Applicant] that it was anything different to that, and I invite the Member to accept his version. For what it’s worth. I’m not saying that that was not a serious offence, but on his version of events that there was one victim in that case. “[67]
(My underlining)
[67] Transcript, 20 October 2020, page 164, lines 9–22.
This particular episode of offending also involved him pursuing those (apparently) two victims and then purporting to unlawfully detain them. Upon being apprehended by police, he purported to suggest that the did not want to participate in any Electronic Record of Interview (EROI) on the basis that he did not anticipate any complaint from at least one of the victims, telling police that “there will be no assault complaint because she is my bitch”. There can be no question that the circumstances of this offending are squarely captured by this sub-paragraph (b).
In addition, I have recounted the “assault occasioning bodily harm – domestic violence” offence and the “common assault – domestic violence offence” committed upon the Applicant’s then-wife who, at the time of the offending, was pregnant with the Applicant’s child. I have previously described the wanton and irresponsible violence attending this offending. One can only but agree with Her Honour Judge Ryrie’s remarks that the nature and impact of this offending rendered the Applicant “a blight on society”. The inherent very serious violent nature of the offending against his then-wife is palpable and beyond dispute. The circumstances of the offending dealt with at both of these sentencing episodes (i.e., 28 July 2015 and 29 August 2018) both immediately attract the operative effect of this sub-paragraph (b).
As noted by the Respondent, the inherent seriousness of the Applicant’s serious violent offending against women can also be gleaned by examining the very numerous attempts by judicial authority to curb his unlawful conduct in this regard by the granting of numerous domestic violence orders to women who were fearful of his violence. Despite the imposition of those orders, the Applicant has been dealt with for contravention of domestic violence orders on the following nine occasions:
·30 October 2014, Brisbane Magistrates Court;
·23 January 2015, Holland Park Magistrate’s Court;
·19 February 2015, Richlands Magistrates Court;
·30 April 2015, Richlands Magistrates Court;
·28 July 2015, Richlands Magistrates Court (x 2);
·23 March 2016, Brisbane Magistrates Court;
·28 February 2017, Richlands Magistrates Court; and
·10 December 2018, Brisbane Magistrates Court.
As observed by the Respondent,[68] there can be no argument with the proposition that the aggrieved parties in all of the domestic violence orders made against the Applicant (and all the orders he has breached) were made for the protection of women. I am of the view (and I find) that this sub-paragraph (b) is activated consequent upon this Applicant’s very violent offending against women. I am also of the view (and find) that regardless of the sentences imposed upon him (significant though such sentences may now be found to be), this sub-paragraph (b) of Paragraph 13.1.1(1) of the Direction militates very strongly in favour of a finding that the Applicant’s horrendous offending against women must be viewed ‘very seriously’.
[68] Exhibit R2, Respondent’s SFIC, page 10, paragraph [28](b).
Sub-paragraph (c) of Paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” There is no doubt that police officers do constitute “government representatives or officials … in the performance of their duties…” for the purposes of this sub-paragraph (c).
While there do not appear to be any offences committed by the Applicant against elderly or disabled or other vulnerable members of the community, there are at least three convictions for offences committed against police officers who have responsibility for maintaining law and order in the community. A cursory review of the Applicant’s criminal history reveals convictions for assaulting or obstructing police officers on three sentencing episodes:
·29 April 2015, Brisbane Magistrates Court – sentence imposed: fined the sum of $400 and no conviction recorded;
·31 January 2018, Richlands Magistrates Court – sentence imposed: head custodial term of three months (suspended for an operative period of three years), conviction recorded;
·10 December 2018, Brisbane Magistrates Court – sentence imposed: head custodial term of four months, conviction recorded.
It is pertinent to record the circumstances of the Applicant’s offending in this regard. First, in the course of committing a public nuisance offence on 11 July 2018 (which, of course, does not technically constitute offending the police) the Applicant’s attitude towards lawful authority was obviously defiant and a prelude to his conviction for “assault or obstruct police officer”. The circumstances of the “commit public nuisance” offence are as follows:
“On 11^th of July 2018 at approximately 16:40hrs police communications began receiving calls about a [sic] African male who appeared highly intoxicated and was verbally abusing and threatening pedestrians in the Stafford/Gordon Park area. The male was described as early 20s, short black hair, wearing long pants and purple business [sic].
Several police vehicles were detailed to attend the area and conduct patrols, another call to the police communication centre detailed the offender had entered Stirling Street Gordon Park and was walking down the middle of the roadway.
A short time later … [the police squad] have entered Stirling Street Gordon Park where they have sighted … the defendant … standing in the middle of Stirling Street yelling obscenities. As police have approached the defendant has remained in the middle of the roadway choosing to give the police the finger as they approached, as police have pulled over to the side of the road the defendant has attempted to jump on the bonnet of the police vehicle as it has come to a stop.
Police have exited there [sic] vehicle and approached the defendant who has immediately adopted a boxing stance and begun yelling racially motivated threats at police. The defendant has stated words to the effect of you can’t touch me you white cunts, police have then attempted to place the defendant under arrest for public nuisance.”[69]
[69] Exhibit R1, TB2, Page 119.
When the Applicant was apprehended for the specific offence of “assault or obstruct police officer” attending police recorded the following circumstances of that offence:
“As police have informed the defendant he was under arrest for public nuisance the offender has struggled and attempted to break away from police. [Name of officer redacted] of [the police squad] has informed the defendant that but resisting he was committing a further offence.
The defendant has called police white dog cunts and continued to obstruct police in there attempts to arrest him.
The defendant was eventually placed on the ground but refused to place his hands behind his back. The defendant was warned by [name of officer redacted] of Boondall Tactician Crime Squad that should he continue to resist he could be charged with an additional obstruct police offence. The defendant has continued to resist for a period of time until being successfully handcuffed.”[70]
[Errors in original]
[70] Ibid.
Also relevant for the purposes of this sub-paragraph (c) are the Applicant’s six convictions for contravening a lawful direction or requirement given by a police officer, pursuant to s 791(2) of the Police Powers and Responsibilities Act 2000 (Qld):
·15 October 2014, Richlands Magistrates Court;
·5 November 2014, Richlands Magistrates Court;
·29 May 2015, Brisbane Magistrates Court;
·23 March 2016, Brisbane Magistrates Court (x 2);
·10 December 2018, Brisbane Magistrates Court.
I am of the view (and I find) that this Applicant has committed multiple crimes against government representatives or officials in the performance of their duties (in this case, police officers) such as to attract operation of this sub-paragraph (c) of Paragraph 13.1.1(1) of the Direction. Having regard to the totality of the Applicant’s offending history in this regard, I am of the view (and I find) that this sub-paragraph (c) militates very strongly in favour of a finding that the Applicant’s offending against police officers must be viewed as at least ‘serious’.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are also viewed as a reflection of the objective seriousness of a given offence committed by an Applicant. It is well established that the imposition of a term of imprisonment for an offence will, in and of itself, reflect the seriousness of that offence and will weigh “heavily” against any decision to revoke the mandatory cancellation decision:
“Dispositions involving incarceration are a last resort in the sentencing hierarchy and this weighs heavily against the revocation of the mandatory cancellation of MrSaleh’s visa.”[71]
[71] Saleh and Minister for Immigration and Border Protection (Migration) [2017] AATA 367 at [50].
This Applicant’s history of offending (in terms of sentencing episodes) in Australia starts on 15 October 2014 and runs until 19 March 2019. As particularised earlier in these Reasons,[72] across the less than five years of his offending history, the Applicant’s offending has resulted in the imposition of cumulative head custodial terms of imprisonment of eight years and four months, or, 100 months.
[72] See paragraph [18] hereof.
He arrived in Australia in mid-2011, found himself before lawful authority for sentencing for the first time on 15 October 2014 and, by April 2015, had received his first conviction involving a custodial term. It should be noted that the imposition of this first custodial term occurred six months after his first sentencing episode in this country in October 2014. The Applicant’s offending has been such that judicial sentencing officers have frequently found themselves with no other reasonable option other than the imposition of a term in custody. It is clear the judicial sentencing officers have been left with no resort but to impose a custodial term in a bid to deter the Applicant from becoming “a blight on society.” While they have tried to impose sentences deterring him, those judicial sentencing officers have noted that if he did not change his ways, “You will be just in jail and you will stay there.”

In a similar vein, another example of a judicial sentencing officer who felt he had no option but to impose a custodial term can be seen from the sentencing marks of Mr Warfield SM who, on 28 July 2015 sentenced the Applicant for certain of his domestic violence offences. His Honour noted that he had to “…take into account the serious nature of that offence…” and while noting that the offence was “particularly violent,” was of a mind to have “imposed a head sentence of around 18 months to two years” but ultimately imposed a head custodial term of 12 months.
Of the 48 individual offences appearing in his criminal history, at least 16 of the sentences for those offences have involved the imposition of custodial terms. They have ranged from as little as one month to as much as 18 months. He has committed a varied range of offences in the following realms: (1) a failure to respect lawful authority,[73] (2) domestic violent offending (including multiple contraventions of domestic violence orders), (3) offences against the person,[74] (4) offences against the property rights of others,[75] (5) several instances of mild or more menacing antisocial and/or dangerous conduct in public, [76] and (6) a conviction for a low-level drug offence.[77]
[73] Be it in the form of a failure to follow a direction or requirement of a law enforcement officer, a failure to appear in accordance with a previously given undertaking, breach of a probation order or breaching a previously imposed sentencing regime.
[74] Including assault/obstruct type behaviour against police officers, violence in a domestic context and assaults occasioning bodily harm against members of the general public.
[75] Comprising convictions for wilful damage, possession of tainted property, unlawful possession of suspected stolen property, stealing and fraud – dishonestly obtaining property of another.
[76] Comprising going armed so as to cause fear and commission of public nuisance offences.
[77] For possession of utensil/pipes etc that had been used in the commission of a drug offence.
Although now only 23-25 years of age,[78] the Applicant has compiled a significant and substantial history of offending in this country. The custodial terms he has received, especially in the second half of his offending history, are sentences that are usually seen in offenders with much longer histories and more persistent offending. In terms of weight attributable to this sub-paragraph (d), his offending has been punished by head custodial terms totalling some eight years and four months. As mentioned, this represents approximately 100% of his time in the mainstream Australian community until his most recent entry into criminal custody/immigration detention in March 2019.
[78] Or, 23 years of age if one adopts the November 1997 date of birth propounded by the Applicant.
Taken cumulatively, there can be no finding other than that the sentences imposed by the courts for the crimes of the Applicant clearly militate in favour of the allocation of a significant measure of weight in favour of a finding that his offending in this country has been very serious.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the allocation of any weight to this sub-paragraph (e) largely replicates the exercise required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
I will deal first with the frequency of the Applicant’s offending. As mentioned, the Applicant is presently 23-25 years of age. At the time of his removal from the Australian community (March 2019), he had an offending history spanning the period October 2014 until March 2019. This offending history discloses the commission of 48 offences committed during his approximately eight years in the mainstream Australian community. He is thus responsible for the commission of something in the order of between approximately six offences during each of those eight years. This figure does not take into account any period he may have spent in actual custody prior to March 2019. There can be no finding other than that this Applicant’s offending has been of a very frequent nature.
To my mind, this Applicant’s offending has been serious from its outset. It then graduated from serious to very serious offending. While this sub-paragraph may speak of a “trend of increasing seriousness,” a proper definition of such a trend does not always have to involve a history showing the commission of low level offending that graduates into more serious offending. On the contrary, what we have before us is a history that starts with serious offending, graduates into very serious offending, and then maintains a consistent theme of serious to very serious offending through its course.
The seriousness of the Applicant’s offending is not decreasing over the course of its time span. His earliest sentencing episodes (October-November 2014) involved (1) a refusal to comply with lawful authority and (2) the contravention of a domestic violence order. Just three months after his first sentencing episode, the Applicant was convicted of another contravention of a domestic violence order, a breach of bail and wilful damage of property pursuant to the Queensland Criminal Code. The abovementioned themes of his offending[79] consistently appear throughout the rest of his history and they have been punished by ever-increasing head custodial terms of imprisonment. It is not by accident that the seriousness and frequency of his offending has, for the 21 offences committed during the second half of the offending history, involved the imposition of cumulative head custodial terms constituting 79 months (or six years and seven months) of custodial time.
[79] See paragraph [3] and [86] hereof.
An application of this sub-paragraph (e) therefore leads to a finding that both the frequency of his offending, as well as its consistency (in terms of the serious to very serious nature of offences actually committed), must attract a finding that this Applicant’s offending has been of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
A significant cumulative effect that can be taken from the Applicant’s intensive history of offending across only five years is that, when one has regard to the graduated nature of sentences imposed on him, it is clear that he has failed to grasp any measure of a deterrent effect from those sentences. In this regard, the range of sentences imposed throughout the criminal history tells the story:
·sentencing episodes in 2014 (four of them) primarily punished the Applicant by non-custodial sentencing instruments, such as fines, probation and “No conviction recorded” notations on his history;
·the first four sentencing episodes in 2015 again punished his offending by the imposition of fines, good behaviour orders and “No conviction recorded” notations on his history;
·by the fifth sentencing episode in 2015, a one month custodial term had been imposed;
·the sixth and seventh sentencing episodes in 2015 imposed, respectively, head custodial terms of two months, three months, four months and 12 months;
·his sentencing episodes in 2016 resulted in the imposition of head custodial terms of, respectively, 3 individual sentences of six months each;
·his sentencing episodes in 2018 resulted in the imposition of respective head custodial terms of three months; three months; nine months; 18 months; three months; four months and nine months;
·his sentencing episode in 2019 resulted in the imposition of a head custodial term of 12 months.
It is thus clear that the Applicant has been afforded a number of opportunities throughout his relative brief but intensive offending history to reform his behaviour and to otherwise seek professional or clinical assistance in doing so. It is clearly apparent from his criminal history that, on at least 17 occasions, he has received the benefit of fines, suspended sentences, good behaviour orders, “Not to be further punished” orders, “No conviction recorded” notations and orders for restitution. He has demonstrably failed to experience any deterrent effect or to undergo any level of rehabilitative reform from those non-custodial sentences.
Another, and perhaps more concerning, cumulative effect of the Applicant’s offending is the large number of instances involving offending that is indicative of a failure to develop any measure of respect for the lawful authority governing the community into which he now seeks re-admission. His criminal history discloses approximately 26 separate instances of offending that is clearly redolent of a failure to respect or abide by lawful authority. This offending involved (1) contraventions of a lawful direction, (2) failing to appear in accordance with duly provided undertakings, such as bail, (3) assault or obstruct police officers, (4) breach of probation orders, and (5) multiple contraventions of domestic violence orders.
Parallel to this cumulative effect of his offending are the numerous instances of him failing to respect the property rights of others, including but not limited to offences described as (1) unlawful possession of suspected stolen property, (2) possess tainted property, (3) wilful damage and (4) multiple instances of stealing. The cumulative effects of the nature and extent of this Applicant’s repeated offending clearly attracts strong application of this sub-paragraph (f) in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (g) of Paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. There is no evidence that the Applicant has provided false or misleading information to the Department. Accordingly, this subparagraph (g) is of no relevance to determination of the instant application.
Sub-paragraph (h) of Paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. As I have alluded to earlier in these Reasons,[80] there can be no doubt that this Applicant has indeed offended after being formally warned by the Respondent.
[80] See paragraph [4] and [5] hereof.
Less than a year after his first sentencing episode, the Applicant’s offending attracted the attention of the Respondent. On 8 October 2015, the Respondent Department mandatorily cancelled his visa, but following contemporaneous submissions from the Applicant, a delegate of the Respondent Minister decided, on 20 September 2016, to revoke that cancellation. What is very significant for the present purposes of this sub-paragraph (h) is the nature of the warning in the Respondent’s letter accompanying the decision to restore his visa status. As was referred to earlier in these Reasons, that covering letter contained, inter alia, the following terms:
“20 September 2016
…
Dear [Applicant]
Notification of decision to revoke visa cancellation under s501CA(4) of the Migration Act 1958
On 8 October 2015, your Class XB Subclass 200 Refugee (permanent) visa was cancelled under s501(3A) of the Migration Act 1958 (the original decision)…
After consideration of your response, the decision-maker has decided to revoke the original decision to cancel your visa.
S501CA(5) of the Migration Act provides that if the decision to cancel your visa is revoked the original decision is taken not to have been made. Hence you hold a Class XB Subclass 200 Refugee (permanent) visa, which authorises your continued stay in Australia.
Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.
…”[81]
[Emphasis in original]
[81] Ibid, page 85.
Perhaps of greater significance in terms of weight allocable to this sub-paragraph (h) is the Applicant’s appalling offending history after the return of his visa and his receipt of the accompanying warning. First, he resumed offending within six months after receiving the warning and having his visa returned to him. By February 2017, he was back before lawful authority for sentencing upon the commission of further offending. He was then again before lawful authority for sentencing on 31 January 2018, 29 August 2018, 10 December 2018 and 19 March 2019.
Second, for his offending after receipt of the warning (i.e. for offending episodes from February 2017 to March 2019), the Applicant committed offences attracting the imposition of a cumulative custodial term of imprisonment 61 months, or just over five years.
It should be noted that the Applicant was dealt with for additional offending after his receipt of the abovementioned warning in September 2016, but that convictions did not involve the imposition of custodial time.
The content and terms of the formal letter of warning from September 2016 accompanying the decision to, at the time, revoke the first mandatory cancellation decision, could not have been clearer. The Applicant’s blatant disregard of this formal warning (and, indeed, the fortuitous privilege of having his visa status restored to him) is palpable and beyond excuse. The reality that the Applicant has ignored a duly issued warning by the Respondent about the adverse impact that his continued offending conduct would have on his migration status in this country is, to my mind, confirmatory of the very serious nature of his subsequent conduct.
He has been given multiple opportunities (by both judicial sentencing officers, plus via this letter of warning) to modify and ameliorate his conduct. He has failed to do so after each such opportunity and, indeed, has persistently continued to offend after each such opportunity. This refusal to heed the Minister’s very clear formal letter of warning is a factor that, pursuant to this sub-paragraph (h) of paragraph 13.1.1(1) of the Direction, attaches a label of “very serious” to the nature of the Applicant’s offending.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. Subject to my following comments about the chapeau to paragraph 13.1.1 of the Direction, there is no evidence of this Applicant having committed a crime while in immigration detention in Australia. This sub-paragraph (i) is not relevant to determination of this application.
The chapeau to the factors at paragraph 13.1.1 of the Direction reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[My underlining]
There are several further aspects to the Applicant’s conduct which, although not directly captured by the nine sub-paragraphs of paragraph 13.1.1(1) of the Direction, nevertheless constitute “other conduct” relevant to an assessment of the nature and seriousness of the Applicant’s conduct.
The material[82] contains reference to an incident at the Wolston Correctional Facility on 2 May 2019. The specific incident involving the Applicant was one of three incidents reported by attendant corrections officers on that day. It is apparent from the incident that the Applicant’s conduct compelled attending corrections officers to physically restrain him:
“Summary of Facts – Deft [KAS]
The complainant in this matter is [FP]. He is a Custodial Corrections Officer (CCO) with Queensland Corrective Services (QCS) and performs duty at the Wolston Correctional Centre (WCC).
The complainant in this matter was performing duties at the time of the offence.
The defendant in this matter is prisoner [KAS]. [KAS] was an inmate at WCC at the time of the offence and is now an inmate at the Brisbane Correctional Centre (BCC) The complainant in this matter is one (1) of three (3) complainants stemming from assaults that took place on 02/05/19 at WCC Secure Unit 7.
At approximately 5:45pm on Saturday 02/05/19, Correctional Officers in Unit S7 were distributing prisoner mail from their Station when another inmate ([the Applicant]) became agitated after reading the contents of some correspondence. Officers attempted to calm him however he threw items at them and refused to comply with their official directions. Officers in turn then approached [the Applicant] in order to restrain him.
At this point the defendant, who was out in the exercise yard, saw what was occurring, entered the S7 area and involved himself in the matter between Officers and [the Applicant]. He called out to the Officers to “Leave him alone” and he was warned by Officers not to get involved. He rushed at the officers attempting to restrain [the Applicant] and additional Officers attempted to block his path to prevent him however the defendant pushed past these officers.
Prisoner [the Applicant] and other Officers then engaged in a physical altercation and the defendant [KAS] involved himself in the melee by pushing Officer [name redacted] backwards down the stairs. The defendant was heard to call out “I will fucking kill you” at the Officers and began throwing a flurry of closed fisted punches toward Officers [name redacted] and [name redacted] in an attempt to disrupt the restraint of [the Applicant].” [83]
[Underlined portions specifically relate to the Applicant]
[82] Specifically, Exhibit G1, G15, page 84.
[83] Specifically, Exhibit G1, G15, page 84.
While not necessarily determinative of anything, I am of the view that (1) the Applicant’s involvement in this melee is behaviour to be properly regarded as “other conduct” pursuant to the chapeau of paragraph 13.1.1(1) of the Direction in terms of the assessment of the nature and seriousness of the Applicant’s conduct to date, and (2) it contributes towards a finding that the totality of his conduct is to be regarded as “very serious”.
The Applicant has a traffic history that commences in July 2012 and runs until January 2019. It is a less than impressive history. His driving privileges have been suspended in:[84]
[84] R1, TB3, pages 128 – 133.
·December 2012 (for three months);
·July 2014 (for six months);
·August 2014 (SPER applied);
·September 2014 (for six months);
·October 2014 (SPER lifted);
·December 2014 (for three months);
·December 2015 (SPER applied);
·May 2016 (for three months);
·August 2016 (SPER lifted);
·April 2017 (SPER applied);
·January 2018 (SPER lifted); and
·January 2019 (for three months).
He was disqualified from driving in:
·January 2015 (punished by a fine in the sum of $341);
·February 2015 (disqualified from driving for two years);
·March 2015 (disqualified from driving for two years);
·April 2015 (disqualified from driving for two years);
·May 2015 (disqualified from driving for two years); and
·June 2015 (disqualified from driving for two years);
He was punished for unlicensed driving in:
·October 2014 (fined the sum of $400 and disqualified from driving for six months); and
·July 2015 (disqualified from driving for one month).
Again, the Applicant’s traffic history is not necessarily determinative of anything, but I am nevertheless of the view that (1) it can be properly regarded as “other conduct” pursuant to the chapeau of paragraph 13.1.1(1) of the Direction in terms of the assessment of the nature and seriousness of the Applicant’s conduct to date, and (2) this traffic history contributes towards a finding that the totality of his conduct is to be regarded as “very serious”.

I accept that the Applicant regards Australia to be his home. Similarly, it can be accepted that the Applicant, his mother and his brother (and, for that matter, Ms CT) would be upset upon his removal from Australia and return to Somalia where – aside from a yet to be defined relationship with his Aunt and biological father - he has no family members and no support network. I also accept the Applicant has no immediately available place to reside in Somalia and that he left that country as a toddler to go and reside in a refugee camp in neighbouring Eritrea. This is consistent with the evidence of his mother and brother.
Based upon the material before The Tribunal, it is reasonable to take judicial notice that there is still armed conflict occurring in Somalia and that Somalia is a dangerous place for the population there. However, I am not convinced the Applicant’s claim to fear harm in Somalia owing to the armed conflict in that country is likely to give rise to international non-refoulement obligations. To whatever extent the Applicant may claim to fear generalised violence in Somalia owing to the conflict, such a claim is bound to fail as a claim under the Refugees Convention because the Applicant has not identified a Convention reason for the feared persecution.
To my mind, the Applicant’s claims would fail as complementary protection claims (i.e. as claims giving rise to non-refoulement obligations under the ICCPR or the CAT) because there is taken to be a real risk that a non-citizen will suffer significant harm in a country if the Minister (or the Tribunal) standing in the Minister’s shoes) is satisfied that the only genuinely ascertainable risk(s) is one faced by the Somalian population generally and is not faced by the non-citizen personally.
I am of the view (and I find) that to the extent that the Applicant may face any risk(s) of harm of generalised violence as a result of armed conflict in Somalia, any such risk(s) are those faced by the population of that country generally and not faced by the Applicant personally. I have sought to fulsomely review the evidence and cannot reach a state of satisfaction that the Applicant’s particular circumstances are such as to differentiate the risk faced by the Applicant owing to armed conflict in Somalia from that faced by the population of that country generally.
While not satisfied that a non-revocation outcome in the instant applicant will necessarily result in Australia breaching its non-refoulement obligations, I nevertheless accept that removal to Somalia will result in a measure of hardship and possible harm to the Applicant. Such hardship could manifest in the Applicant being rendered homeless and/or unemployed and/or being harmed as a result of generalised violence in Somalia.
The consequences of non-revocation
It is necessary to address the Applicant’s following contentions:
“47. The Applicant is a person who engages Australia’s non-refoulment obligations. If he were to be returned to Somalia, Australia would act in breach of its international obligations not to return persons to places where they may be harmed. If he were to be unsuccessful two possible consequences remain; he is either returned to Somalia in breach of those obligations: s 197C of the Migration Act 1958 (Cth), (see DMH16 v Minister for Immigration [2017] FCA 448), or an effective life sentence of being indefinitely detained. For the purposes of this review the proper legal consideration remains the former.
48. There have been AAT cases suggesting the availability of alternative outcomes. The Applicant submits that notion is misconceived. That the Minister has “management options” does not change the law – the law to be applied by this Tribunal is that, unless the Applicant obtains a favorable outcome, the Applicant is liable to being returned to Somalia in breach of Australia’s international obligations as soon as reasonably practicable.”[242]
[242] Exhibit A1, page 12.
Two things can be said in response to the above contentions. First, it is made clear in BDQ19 v Minister for Home Affairs [2019] FCA 163 that the Executive will not remove people if doing so would result in the contravention of Australia’s non-refoulement obligations. No contrary intention is expressed in the Direction:
“64. There is nothing in the text of Ministerial Direction No 65 [now Direction 79] that can be understood to manifest the possibility that those commitments will not be honoured. Indeed, self-evidently, the contrary is manifested in the text of cll 10.1(2), 12.1(2) and 14.1(2). Moreover, it is entirely implausible that the Minister intended to consign a matter of such high significance to those subject to his direction as a second order concern in contrast to the primary considerations in Part C.”[243]
[243] BDQ19 v Minister for Home Affairs [2019] FCA 163 at [64], per Kerr J.
I accept that a situation may arise where, irrespective of any non-refoulement obligations, it may not be possible or reasonably practicable to return an Applicant from Australia. Circumstances may arise where, for example, the receiving country either refuses or is not otherwise able to accept the non-citizen. In those circumstances, the non-citizen will not be removed, not because of any actual breach of Australia’s non-refoulement obligations, but because the proposed receiving country will not accept them. This position is not contrary to the decision of North ACJ in DMH 16 v Minister for Immigration and Border Protection [2017] FCA 448. (“DMH 16”)
In DMH16 it was found that, as a matter of law, a person in respect of whom international non-refoulement obligations were found to be owed could not be indefinitely detained. This is due to the practical effect of s198 of the Act when read with s197C of the Act. The combined operative effect of those provisions is the fact that a non-citizen is owed non-refoulement obligations does not make it reasonably impractical to remove that non-citizen. It follows that holding a person in detention in Australia cannot constitute a breach of Australia’s international non-refoulement obligations.
Second, it is open to the Applicant to lodge an application for a Protection Visa. None of the relevant exclusionary sections of the Act, neither ss 48A or 501E apply to his circumstances. His standing to apply for a Protection Visa militates against a presumption that the consequences of a non-revocation decision in the instant application will necessarily result in either his removal from Australia or his indefinite detention. His claimed fear(s) of harm, while not reaching the threshold of engaging Australia’s non-refoulement obligations for the purposes of the instant application, will be ventilated in the conduct of any future application for a Protection Visa consequent upon a non-revocation decision in the instant Application.
It is safe to draw the inference that the Applicant’s fear(s) of harm will be ventilated in any future application for a Protection Visa due to those issues having been ventilated in the instant application. Ministerial Direction No 75[244] governs a decision-maker’s consideration in relation to refusal of Protection Visas. Part 2 of Direction No 75 makes it clear that:
“In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.
1) The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision-maker finds the claims do not meet the refugee or complementary protection criteria, the decision-maker must refuse to grant the visa.”
[My emphasis and underlining]
[244] Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b).
A future decision-maker dealing with a protection visa Application by this Applicant will not be bound by the findings and conclusions I have reached in determining the instant Application. Were this Applicant to apply for a Protection Visa – an entirely feasible scenario were he to be unsuccessful in the instant Application - he will have the opportunity to adduce more convincing and substantial evidence to support his propounded claims to fear harm upon to return to Somalia.
Findings and Allocation of Weight to Other Consideration (a)
I have found that the Applicant’s articulated and propounded claims to fear harm upon a return to Somalia are, to my mind, not sufficiently advanced to reach the threshold of an engaging whatever non-refoulement obligations Australia may owe him. I have also found that to the extent prolonged detention may be a possibility for the Applicant, this would result in a measure of harm or hardship for him.
Overall, I am of the view (and I find) that the actual or possible hardship or harm the Applicant may experience from (1) certain of his claimed fear(s) of harm upon a return to Somalia and (2) possible prolonged detention, are factors that attract a certain, but not determinative, level of weight in favour of revocation. This weight is determinatively outweighed by the combined weight I have attributed to the Primary Considerations A and C.
(b) Strength, nature and duration of ties
The Respondent made the following concessions in its SFIC:
“57. The applicant has family members in this country…. They understandably wish for him to be able to continue residing in Australia.
…
59. Although the Tribunal may find that this consideration does weigh in the applicant’s favour, it does not outweigh the other primary considerations weighing heavily favour of non-revocation.”[245]
[245] Exhibit R2, pages 21–22.
In addition, the Respondent made the following concessions during submissions:
“Next is the strength, nature and duration of ties to Australia. The applicant has lived in Australia for nine years, however less weight should be given to the applicant’s time spent here because he arrived in 2011 and started offending in 2014. In terms of any positive contribution the applicant has made to Australia, the applicant’s time in gainful employment is limited to a six month period as a butcher.
In terms of the strength, nature and duration of any family in Australia, it is accepted that some of the applicant’s immediate family members, namely the applicant’s mother and brother, may suffer some emotional hardship if the applicant is returned to Somalia.”[246]
[246] Transcript, Tuesday 20 October 2020, page 161, lines 43–47; page 162, lines 1–7.
As will be demonstrated, upon an application of the factors appearing in paragraph 14.2 of the Direction, I consider that the position taken by the Respondent with reference to this Other Consideration (b) is correct. The Applicant was born in either 1995 or 1997 and arrived in Australia in June, 2011, aged either 16 or 13/14. He has lived just over nine years of his life in Australia. He was first dealt with for his offending in this country in October 2014, which is just over three years after his arrival in Australia. Applying paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to this Other Consideration in circumstances where the Applicant began offending relatively soon after arriving in Australia.
There is scant evidence of any contributions made by the Applicant to Australia. His Personal Circumstances Form makes no reference to positive contributions he has made to this country, be they in the form of volunteer activities or any participation in the cultural life of the Australian community. He has worked as a Halal butcher for a period of approximately six months but his Personal Circumstances Form makes no other reference to remunerative employment in this country. He told Dr Zimmerman about previously commencing an apprenticeship as an automotive mechanic and of an intention to obtain additional qualifications in that area of work. He also told Dr Zimmerman that he did some intermittent farm work after he married Ms CT.
His history of positive contributions to the Australian community is, at best, speculative and unconvincing and otherwise tending towards the non-existent. I am hard-pressed to utilise whatever such positive contributions may be attributable to this Applicant in favour of allocating any measure of weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
I am of the view that a greater, but not determinative, level of weight can be allocated to him pursuant to this Other Consideration (b) on the basis of, specifically, paragraph 14.2(1)(b). His mother and brother both reside in Australia and it is clear from the evidence that he does have a relationship with his mother and his brother (and his brother’s family). In his Personal Circumstances Form, the Applicant has also listed his stepfather as a family member in Australia. The Applicant has apparently never seen his biological father and has thus never known him. The Applicant’s biological parents became divorced when his biological mother was pregnant with him.[247]
[247] See Transcript, 19 October 2020, page 7, lines 28–33.
His mother re-partnered in Somalia and, thus, the Applicant came to know a step-father. There were domestic issues between the Applicant’s mother and his stepfather such that they separated in November or December 2011 and finally divorced in 2013. In her evidence in chief, the Applicant’s mother was asked whether the Applicant still has a relationship with his stepfather. She responded with, ‘Yes, he used to call him when he needs to and he used to help him as well. He used to call him Daddy too.’[248]
[248] Transcript, Monday 19 October 2020, page 81, lines 21–25; See also page 81, lines 1–19.
It is therefore safe to find that, consistent with what appears in his Personal Circumstances Form, the Applicant does have a level of strength, duration and nature of family links with the following family members[249] who, for the purposes of this decision, I will presume are either Australian citizens, Australian permanent residents, and/or people who have an indefinite right to remain here:
·his mother;
·his brother;
·his brother’s wife;
·the five children of his brother (the Applicant’s nieces and nephews); and
·two cousins.
[249] Apart, of course, from Child H, whose interests were considered for the purposes of Primary Consideration B.
Less clear is the strength, duration and nature of any ties the Applicant may have with the following people who he has listed in his Personal Circumstances Form in response to the following question:[250]
[250] Exhibit 1, G9, page 70. I presume that the reference to ‘Number of nieces/nephews: 5’ refers to the five children of the Applicant’s brother and wife. The interests of those five nieces/nephews were considered as part of my discussion relating to Primary Consideration B.
State how many other relatives you have in Australia or overseas

In Australia

Other Country – Specify

Number of uncles/aunts

4-7

None

Number of nieces/nephews

5

None

Number of cousins

6-7

None

Number of grandparents

0

0

There is a likelihood that the Applicant’s mother and his brother would be impacted by his removal to Somalia. In her statement of 6 October 2020, she says the following in the event of the Applicant’s removal:
“29. I am so lonely. I have never lived without [the Applicant] in my life, he has always been there with me. [The Applicant] is a part of me. In 2008, my eldest son left me to go to Italy and I did not see him for several years. I had never felt such loneliness in my life before. Thank God that he is now with me here in Australia. But now [the Applicant] is away from me. My life will never be complete the way it was before 2008 until and unless I have [the Applicant] with me.”[251]
[251] Exhibit A5.
Her written evidence was mostly corroborated by what she said in evidence in chief:
“MR BLAKE: Does your son being deported back to Somalia concern you?
…
INTERPRETER: I don’t want him to be deported. I raise him in a difficult situation. He was born in a refugee life. I can’t stand you saying that he’s going to be deported, that offends me.”[252]
[252] Transcript, 19 October 2020, page 83, lines 13-19.
In his statement of 6 October 2020,[253] the Applicant’s brother says the following about the impact on others in Australia in the event of the Applicant’s removal to Somalia:
“25. If [the Applicant] is removed it would have a long-lasting impact on our mother’s health and her life and wellbeing. She is a mother. I don’t know how she would cope if [the Applicant] were removed knowing that he could be tortured or killed in Somalia. I don’t know how any mother could cope with that. I can see that my mother is getting more and more distressed and unwell as time goes on worrying that [the Applicant] would be sent to Somalia.
26. The thought that [the Applicant] might be taken away to Somalia really affects us. We think if that day comes, what might happen to him. He could be killed any day. How would he survive the problems, fighting and issues in Somalia.”[254]
[253] See Exhibit A6.
[254] Ibid.
During evidence in chief, the Applicant’s brother (Mr KG) was asked about the effect of the Applicant’s removal to Somalia on both his children (i.e. the Applicant’s five nieces and nephews) and on his mother:
MR BLAKE: Does [Child H] have a good relationship with your children?
INTERPRETER: Yes, he does have a good relationship with my kids.
MR BLAKE: Now, if your brother was deported to Somalia what effect do you think that that will have on [Child H]?
INTERPRETER: What will happen, it’s going to be a very big problem because he is going to miss his father and, as a young kid, it’s very good to have a father and mother. So if his father was deported he’s going to miss his father and then probably, maybe, maybe, I’m not sure he say, the son also would take the footsteps of his father because he doesn’t have a father so nobody to look after him and he doesn’t have a good example.
MR BLAKE: What impact do you think your brother being deported back to Somalia have on your mother?
INTERPRETER: The impact is my mother, now as we’re talking, she is in the gaol. My mum, she thinks - he is the last born baby, she thinks a lot about him in gaol so if he was deported, again another stress. So my mother maybe she can have a lot of thinking so maybe she become depressed or maybe - then what we call is pressure or - anything can happen to my mum. Now, as we are talking, she is thinking about him too much.”[255]
[255] Transcript, 20 October 2020, page 124, lines 36-47, and page 125, lines 1-12.
I have had regard to the strength, nature and duration of ties between the Applicant and the relevant people in Australia falling within the ambit of paragraph 14.2(1)(b). I am of the view that the strength, duration and nature of the Applicant’s family/social links with members of his immediate or extended family in Australia is such as to facilitate the allocation of a certain, but not determinative, level of weight in his favour for this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application. There is unanimity between the parties on this point.[256]
[256] See Exhibit R2, page 23, paragraph [67]. This Other Consideration (c) is not mentioned in the Applicant’s SFIC – Exhibit A1, or in the Applicant’s reply to the Respondent’s SFIC – see Exhibit A12.
(d) Impact on victims
The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims.[257]
[257] See Exhibit R2, page 23, paragraph [69]. This Other Consideration (d) is not mentioned in the Applicant’s SFIC – Exhibit A1, or in the Applicant’s reply to the Respondent’s SFIC – see Exhibit A12.

Out of an abundance of caution, I make reference to the statement of Ms CT,[258] wherein she says that “If he [the Applicant] was removed from Australia I would be devastated and angry, I don’t know how I could live.” To my mind, it would be unsafe to utilise this evidence of Ms CT to apply weight to this Other Consideration (d) in favour of the Applicant. There are several reasons for that view: (1) Ms CT did not give oral evidence and thus her written evidence was not tested in cross-examination, (2) she clearly makes this statement in the context of the Applicant being available to co-parent Chid H, and (3) there are other victims of the Applicant’s offending, whose views are not known.
[258] Exhibit A4, statutory declaration made on 7 October 2020.
Therefore, in the absence of such evidence from those other victims, be it in the form of a victim impact statement or otherwise, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact that the Applicant’s continued presence in Australia would have on any of his victims. It would be unsafe to find that this factor attracts any weight either in favour of, or against, the cancellation of the Applicant’s visa and is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)The non-citizen’s age and health;
(b)Whether there are any substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to that non-citizen in that country.
The Applicant contends the following:
“Impediments on return
54. The applicant will face significant impediments if forcibly returned to Somalia. It is contended that the consequences to this particular applicant, in all his circumstance [sic], upon forced return are substantial.
55. The forms of harm he would face detailed in relation to non-refoulment obligations are equally relevant to impediments on forced return. The applicant is at high risk of torture and other forms of physical harm upon forced return. Torture is abhorrent in any context and Australia does not return a person to a country where they will be tortured.
56. The applicant intends to receive counselling and psychological care for his past trauma. This is not possible in Somalia.
57. If returned to Somalia he would face poverty, destitution, and cruel, inhumane, and degrading treatment.
58. This consideration ought to be given determinative weight.”[259]
[259] Exhibit A1.
In his Personal Details Form, the Applicant records the following under the heading “Health Information”:
“Do you have any diagnosed medical or psychological conditions?
(The Applicant ticked the “No” box)
If yes: please provide details of the condition/s and explain what treatment you are receiving (for example, any prescription medication or counselling or other professional treatment). Provide evidence from a medical professional to support your claims.
(The Applicant did not record any response in this field)
Medication – if applicable:
(The Applicant did not record any response in this field)
If you are currently being treated by any doctor/health professional/counsellor, provide details that you want the decision-maker to take into account. You may wish to provide a report regarding your treatment and progress.
(The Applicant did not record any response in this field)”[260]
[260] Exhibit G1, G9, page 73.
In one of his earlier statements,[261] dated 1 July 2020, the Applicant said:
“31. I previously suffered from depression when I was in prison and unable to see my son. In my culture, depression is not taken seriously. A doctor in prison prescribed me antidepressants which helped me. Although I still feel depressed at times because I am far away from my son and my whole family in Queensland, I am not currently taking antidepressants.”
[261] See Exhibit G1, G19, page 101.
As noted earlier, the Applicant’s SFIC says: “The applicant intends to receive counselling and psychological care for his past trauma. This is not possible in Somalia.” Despite the now-propounded mental health symptoms, Dr Zimmerman nevertheless noted that the Applicant “…has never seen mental health professionals in the community.” This is what Dr Zimmerman recorded in her report:
“[35] [the Applicant] stated that he has never seen mental health professionals in the community. He said that he has never attempted to kill himself but had suicidal thoughts after he assaulted his wife. He said that he became depressed when he was in prison and away from his son. He was placed on “suicide watch” for a period of time. He said that he improved when a doctor prescribed the antidepressant mirtazapine. He also noted that depression is not taken seriously in Somalia.
…
[37] He denied feeling suicidal or depressed in detention but said that he misses his family and child.”[262]
[262] See Exhibit A10.
I acknowledge that the level of mental healthcare facilities and expertise in Somalia will most probably not be similar to those facilities and the level of care the Applicant has experienced, and may in future experience, in Australia.[263] Be that as it may, regard must be had to the ambit of paragraph 14.5(1) of the Direction. It relevantly stipulates that the extent of any impediments to be confronted by the Applicant if removed from Australia – in terms of establishing himself and maintaining basic living standards – is to be considered in the context of what is generally available to other citizens of that country. While it should be acknowledged that the standard of expertise of such care in Somalia may not equate to that of Australia, it does not necessarily follow that Somalia is entirely devoid of such facilities. The Applicant would be entitled to the same access to those facilities in the same manner and to the same extent as they are available to other Somalian citizens. More generally, he will also have access to the same level of governmental/social support as that which is available to other citizens of Somalia.[264]
[263] Section 14.5(1)(a) of the Direction.
[264] Section 14.5(1)(c) of the Direction.
It can be fairly said that there are no significant or substantial language barrriers to the Applicant’s return and re-establishment in Somalia. I accept there may be some initial cultural barrier that would confront the Applicant upon a return given that he has been absent from the country for much of his life.[265] While not necessarily determinative of anything, the Respondent’s contention[266] is that the Applicant has spent at least the first 11 years of his life in the region of Somalia/Eritrea, particularly in the latter country. There is little evidence in the material about any significant cultural differences between the Applicant’s country of origin and birth (Somalia) and Eritrea, where he spent a large part of his life before coming to Australia. I accept that he may face some difficulty in re-establishing himself in Somalia, but he can reasonably be expected to overcome that hardship in the short to medium term such that it would not preclude his successful re-settlement there.
[265] Section 14.5(1)(b) of the Direction.
[266] See Exhibit R2, page 22, paragraph [62].
It is reasonable to find that the Applicant may face some practical, financial and emotional hardship upon a return to Somalia. He speaks of possible having an aunt in Somalia, but adds that “…as far as I know she is in her late 70s and I do not think I would be able to rely on her for any help.”[267] It should also be noted that the Applicant speaks of his biological father in Somalia, but that he has “no relationship or contact with my biological father and would not expect to rely on him for assistance [because] I do not have good feelings towards him because he was never there throughout my life.”[268]
[267] Exhibit G1, G19, page 102, paragraph [41].
[268] Ibid.
On the one hand, it can be said that neither his aunt nor his biological father represent a guaranteed ‘safe haven’ for him upon any return to Somalia. On the other hand, the extent of his capacity to re-connect with his aunt and/or her family and/or his father and any resulting broader support network in Somalia is unknown. As noted by the Respondent, while the Applicant gives us his views about the extent of his connectivity with his aunt and biological father, we do not know the extent to which they are willing to offer him support and assistance upon any return.
I accept that the Applicant may face impediments upon a return to Somalia. However, I do not consider that those impediments would be insurmountable. The Respondent accepts that this Other Consideration (e) weighs in favour of revocation. I agree with that position, but express it on the basis that this Other Consideration (e) is of a certain, but not determinative, weight in favour of revocation. I am of the further view that it does not outweigh the combined weight I have allocated to Primary Considerations A and C, both of which favour non-revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which, when combined, are of determinative weight in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: of a certain, but not determinative, weight in favour of revocation;
·Strength nature and duration of ties: of a certain, but not determinative, weight in favour of revocation;
·Impact on Australian business interests: not relevant;
·Impact on victims: of neutral weight; and
·Extent of impediments if removed: of a certain, but not determinative, weight in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·The combined weight of Primary Considerations A and C is of determinative weight in favour of non-revocation;
·Primary Consideration B is of moderate weight in favour of revocation; and
·I have outlined the weight attributable to the Other Considerations (a), (b) and (e). I do not consider that any of those three Other Considerations, even when combined with each other and/or Primary Consideration B, outweigh the cumulative, combined and determinative weight I have attributed to Primary Considerations A and C.
A holistic view of the considerations in the Direction, therefore, favours the non‑revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 351 (three hundred and fifty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

................................[sgd].......................................
Associate
Dated: 6 November 2020

Date of hearing:
19 and 20 October 2020

Counsel for the Applicant:

Solicitors for the Applicant:

Mr B Johnston of Counsel (with him, Mr W Blake of Counsel)

Refugee Legal

Solicitor for the Respondent: Mr Jake Kyranis, Senior Associate
Sparke Helmore
ATTACHMENT A - EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents
(pages 1-182)

R

-

27 AUG 20

R1

Respondent’s Tender Bundle
(pages 1-194)

R

-

25 SEP 20

R2

Respondent’s Statement of Facts, Issues and Contentions (pages 1-24)

R

25 SEP 20

25 SEP 20

A1

Applicant’s Statement of Facts, Issues and Contentions (pages 1-14)

A

14 SEP 20

14 SEP 20

A2

Statement of the Applicant (unsigned) (seven pages)

A

14 SEP 20

14 SEP 20

A3

Statement of the Applicant (signed) (pages 1-5)

A

6 OCT 20

8 OCT 20

A4

Statutory Declaration of the Applicant’s former domestic partner [Ms CT] (signed) pages 1-4)

A

7 OCT 20

8 OCT 20

A5

Statutory Declaration of the Applicant’s mother [Ms MB] (signed) (six pages)

A

6 OCT 20

8 OCT 20

A6

Statutory Declaration of the Applicant’s brother [Mr KG] (signed) (pages 1-5)

A

6 OCT 20

8 OCT 20

A7

Offer of Employment from Mr AG (one page)

A

30 SEP 20

8 OCT 20

A8

Rehabilitation Certificates – Yongah Hill Immigration Detention Centre

· Certificate of Participation – Lifeskills (August 2020)

· Certificate of Participation – Men’s group (August 2020)

A

-

8 OCT 20

A9

Briefing letter to Dr Nina Zimmerman (six pages)

A

13 SEP 20

8 OCT 20

A10

Psychiatric Report and coversheet of Dr Nina Zimmerman (20 pages)

A

7 OCT 20

8 OCT 20

A11

AAT Guidelines – Persons Giving Expert and Opinion Evidence (four pages)

A

30 JUN 15

8 OCT 20

A12

Applicant’s submissions in reply (pages 1-8)

A

11 OCT 20

11 OCT 20

A13

The Guardian article – Life in the shadow of al-Shabaab: ‘If I don’t call, my mother thinks I’m dead’
(pages 1-8)

A

14 FEB 19

11 OCT 20

A14

ABC News article – Islamic Militant group al Shabaab attacks Somalia hotel, 15 dead (pages 1-3)

A

17 AUG 20

11 OCT 20

A15

All Africa article – Somalia: Al-Shabaab attacks intensify as election looms (pages 1-2)

A

18 SEP 20

11 OCT 20

A16

Smarttraveller – Covid-19 and travel (14 pages)

A

11 OCT 20

11 OCT 20

[2020] AATA 4656

2 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

In Australia	Other Country – Specify
Number of uncles/aunts	4-7	None
Number of nieces/nephews	5	None
Number of cousins	6-7	None
Number of grandparents	0	0

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (pages 1-182)	R	-	27 AUG 20
R1	Respondent’s Tender Bundle (pages 1-194)	R	-	25 SEP 20
R2	Respondent’s Statement of Facts, Issues and Contentions (pages 1-24)	R	25 SEP 20	25 SEP 20
A1	Applicant’s Statement of Facts, Issues and Contentions (pages 1-14)	A	14 SEP 20	14 SEP 20
A2	Statement of the Applicant (unsigned) (seven pages)	A	14 SEP 20	14 SEP 20
A3	Statement of the Applicant (signed) (pages 1-5)	A	6 OCT 20	8 OCT 20
A4	Statutory Declaration of the Applicant’s former domestic partner [Ms CT] (signed) pages 1-4)	A	7 OCT 20	8 OCT 20
A5	Statutory Declaration of the Applicant’s mother [Ms MB] (signed) (six pages)	A	6 OCT 20	8 OCT 20
A6	Statutory Declaration of the Applicant’s brother [Mr KG] (signed) (pages 1-5)	A	6 OCT 20	8 OCT 20
A7	Offer of Employment from Mr AG (one page)	A	30 SEP 20	8 OCT 20
A8	Rehabilitation Certificates – Yongah Hill Immigration Detention Centre · Certificate of Participation – Lifeskills (August 2020) · Certificate of Participation – Men’s group (August 2020)	A	-	8 OCT 20
A9	Briefing letter to Dr Nina Zimmerman (six pages)	A	13 SEP 20	8 OCT 20
A10	Psychiatric Report and coversheet of Dr Nina Zimmerman (20 pages)	A	7 OCT 20	8 OCT 20
A11	AAT Guidelines – Persons Giving Expert and Opinion Evidence (four pages)	A	30 JUN 15	8 OCT 20
A12	Applicant’s submissions in reply (pages 1-8)	A	11 OCT 20	11 OCT 20
A13	The Guardian article – Life in the shadow of al-Shabaab: ‘If I don’t call, my mother thinks I’m dead’ (pages 1-8)	A	14 FEB 19	11 OCT 20
A14	ABC News article – Islamic Militant group al Shabaab attacks Somalia hotel, 15 dead (pages 1-3)	A	17 AUG 20	11 OCT 20
A15	All Africa article – Somalia: Al-Shabaab attacks intensify as election looms (pages 1-2)	A	18 SEP 20	11 OCT 20
A16	Smarttraveller – Covid-19 and travel (14 pages)	A	11 OCT 20	11 OCT 20