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

[2022] AATA 4019

TTCT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4019 (15 November 2022)

Division:GENERAL DIVISION

File Number:          2022/6825

Re:TTCT

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member C. J. Furnell

Date:15 November 2022

Place:Melbourne

The Tribunal affirms the decision under review.       

.........................[SGD]...............................................

Senior Member C. J. Furnell

Catchwords

MIGRATION – mandatory cancellation of Child (Class AH) (Subclass 101) visa – Migration Act 1958 (Cth) s 501(3A) – Applicant does not pass character test – substantial criminal record – whether there is another reason why mandatory cancellation should be revoked – Direction 90 – Somalia – indefinite detention – primary and other considerations – decision under review affirmed

Legislation

Acts Interpretation Act 1901 (Cth)

Migration Act 1958 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Social Security Act 1991 (Cth)

Cases

AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114

Ali v Minister for Home Affairs [2020] FCAFC 109

Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132

Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125

BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99

Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104

CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124

CRI026 v The Republic of Nauru [2018] HCA 19

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

FYBR v Minister for Home Affairs (2019) 272 FCR 454

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338

HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133

Hughes v R [2017] HCA 20

Kayo Rerekura and Minister for Home Affairs [2019] AATA 153

Maryvan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 977

Matthews v Minister for Home Affairs [2020] FCAFC 146

Minister for Home Affairs v Buadromo (2018) 267 FCR 320

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

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

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

PQSM v Minister for Home Affairs [2019] FCA 1540

PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050

PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14

Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125

Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409

XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2357

Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545

Secondary Materials

Alcohol and Other Drugs Knowledge Centre, “Link Out: a support program for men leaving prison” [Archived Web Page, 2012] < Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force, 3 May 2008)

Convention Relating to the Status of Refugees, opened for signature 28 July 1951,189 UNTS 137 (entered into force 22 April 1954)

Department of Foreign Affairs and Trade, DFAT Country Information Report Somalia [Online Report, 13 June 2017] < of Foreign Affairs and Trade, “Somalia” [Web Page, updated 2 November 2022] < align="left">Department of Home Affairs, “Somalia: 2020022010020 – Women – Separated Women – Divorce – State protection – Support organisations – Clan protection – People who have lived overseas” (Online Report, 3 March 2020) < No 90 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

REASONS FOR DECISION

Senior Member C. J. Furnell

15 November 2022

1. In this proceeding, the issue is whether a decision to cancel the applicant’s Child (Class AH) (Subclass 101) visa ought to be revoked. Under the Migration Act 1958 (the Act), the Tribunal can only do this if it is satisfied of one of two things.

2. For the reasons which follow, I am not satisfied of either of those things. Hence, the Tribunal affirms the decision the subject of review.

   Procedural Background

3. On 7 February 2017, the applicant’s visa was subject to mandatory cancellation[1] (the visa cancellation decision). The cancellation was mandatory because, under s 501(3A) of the Act:

   (a)A delegate of the Minister was satisfied that the applicant did not pass the character test set out in s 501 of the Act because he had a substantial criminal record,[2] having been sentenced to a term of imprisonment of 12 months or more;[3] and

   (b)The applicant was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.[4]

   [1] G5, pp.67-73. References to “G” are references to documents provided by the Respondent under s 501G of the Act, known as “G”-Documents.

   [2] As defined in the Act, s 501(7).

   [3] Act, s 501(7)(c).

   [4] G6, p.74.

4. The applicant sought to have the visa cancellation decision revoked, making representations about revocation in response to, and in accordance with, the requisite invitation to do so.[5]

   [5] Act, s 501CA(3). See G10, pp.109-133.

5. As a result, under s 501CA of the Act, the respondent became obliged (or became vested with a discretion)[6] to revoke that decision if satisfied either that the applicant passed the character test or that there was another reason why the visa cancellation decision should be revoked.[7]

   [6] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338 at [38]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [21]. See also Derrington J in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 but cf Katzmann J in the same case at [3]-[6]. Lastly, see Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125 at [55]-[61] per Derrington J but cf [82]-[96] per O’Sullivan J.

   [7] Act, s 501CA(4).

6. On 21 October 2020, the respondent purported to decide not to revoke the visa cancellation decision.[8] That purported decision was, however, quashed and the respondent was directed to reconsider the applicant’s representations seeking revocation of the mandatory cancellation decision of 7 February 2017 according to law.[9]

   [8] G77, p.1664.

   [9] G45, p.488.

7. On 22 August 2022, a delegate of the respondent decided not to revoke the visa cancellation decision (the non-revocation decision).[10]

   [10] G2, pp.8-61.

8. On 24 August 2022, the applicant applied to the Tribunal for review of the non-revocation decision.[11]

   [11] G1, pp.1-7.

9. In conducting that review, the Tribunal performs the same function and exercises the same power as the primary decision-maker.[12] As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.

   [12] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14], [15] and [51].

10. I am not satisfied of either of those things.

11. I will outline my reasons for not being so satisfied shortly. Before doing so, however, mention should be made of some aspects of the factual context and of the material which was before the Tribunal in this proceeding.

    Aspects of factual context

12. The applicant is aged 38 having been born in Somalia in June 1984.

13. He is a member of a minority clan in Somalia, the Rahanweyn.[13]

    [13] Also spelled “Rahawayn” in some materials lodged on behalf of the Applicant: for example, G65, p.1017.

14. His early life (or, at least, aspects of his early life) was horrific. When he was aged eight, “rebel forces” are said to have entered the village where the applicant then lived who, in his presence, proceeded to torture and murder his father, rape and beat his mother, chop off the hand of one of his brothers and decapitate fellow villagers.[14]

    [14] G80, p.1709

15. While still aged eight, he made an arduous journey to a refugee camp in Kenya with his two younger brothers and grandmother. There, he is said to have been subjected to sexual assault and to have witnessed murders.[15]

    [15] Ibid.

16. In October 2003, aged 19 and as part of a Red Cross family reunification program, the applicant first arrived in Australia holding a Child (Class AH) (Subclass 101) visa (visa). He was accompanied by two younger brothers and was reunited with his mother and sister who had already settled in Australia.

17. The applicant has three younger brothers and a younger sister.[16] All his family reside in Australia.[17] He is now, however, and has for some time been, estranged from his family.[18] Indeed, in 2007 intervention orders were taken out prohibiting the applicant from attending the family home.[19]

    [16] G64, p.1004 (February 2022 statement of the applicant).

    [17] G10, p.117.

    [18] While in his evidence before the Tribunal the applicant indicated that he had not spoken to his family for a long time (G64, p.1010), some material before the Tribunal suggests that he had regular contact with family members up to at least 2019: see G42, p.453. See, however, G53, p.597: a 2021 report stating that the applicant “…has minimal support from his family, being estranged due to his offending history and past substance abusing.” In 2020, in the context of a psychiatric consultation, the applicant is said to have stated that he had not spoken to family members for around five years: see G60, p.651.

    [19] G7, p.81.

18. In July 2012, the applicant applied for Australian citizenship. His application was, however, refused in May 2013.

19. For some time, the applicant had a serious substance abuse problem or disorder (one which, as will soon be seen, is now in remission). In December 2014, in sentencing remarks to which I will soon return, Justice Beale stated in relation to the applicant that:

    In addition to your long term heavy use of cannabis, you have had a longstanding problem with alcohol. You began drinking heavily soon after your arrival in Australia. Your counsel told me that you would drink several litres of wine per day, as well as using two to three grams of cannabis per day… When you were about 25,[[20]] you started using heroin regularly… You started using methylamphetamine or ‘ice’ 3 to 4 years ago. You used 2 to 3 points of ice per day.[21]

    [20] That is in around 2009.

    [21] G7, p.84.

20. In a 2011 neuropsychological report, it was stated that the applicant had been on a methadone program and had attended two residential detoxification and rehabilitation programs but, after having been asked to leave due to fighting, had “quickly relapsed when in the community.”[22]

    [22] G17, p.186.

21. It would appear that the applicant did little by way of paid employment when free in the community. In November 2007, he was said not to have worked “for some time”; to have had sporadic work but to have lost jobs because of alcohol and drug use.[23] In 2011, he was said not to have worked for a number of years.[24] Prior to being placed on remand in June 2013,[25] the applicant had been unemployed for several years and that, while he had undertaken some labouring, factory and fruit picking work, his work history was “patchy.”[26]

    [23] G8, p.98.

    [24] G17, p.188.

    [25] In December 2014, Beale J noted in his sentencing remarks that the applicant had already served 556 days: G7, p.76. Upon release from prison in May 2019, the applicant was placed in detention.

    [26] G7, pp.83 and 84.

22. It may be that the applicant has, or at least had, an inability to work. For much of his time while free in the Australian community, the applicant was on a disability pension for mental health issues.

23. As for those mental health issues, they are addressed in a number of reports.

24. In a 2007 psychologist’s report, the applicant was said to present with clear symptoms of PTSD,[27] a condition which was then “chronically entrenched” and one for which he had then had no treatment or counselling.[28]

    [27] Cited by Gullaci J in his 2007 sentencing remarks: G8, p.98.

    [28] G8, p.99 (Gullaci J’s 2007 sentencing remarks).

25. In a 2011 neuropsychological report, in addition to PTSD, reference was made to the applicant suffering from depression and anxiety, “possible schizophrenia (or substance related psychosis)”[29] and to then being treated with anti-psychotic medication.[30]

    [29] G17, p.190.

    [30] G17, p.187. In February 2022, the applicant stated that he had been taking psychotropic medication for around 10 years: G64, p.1005.

26. In a report prepared by a forensic psychiatrist in early 2014, the applicant was said to have “reported previous diagnoses of schizophrenia, bipolar, depression and trauma. He reported these had been made during an assessment through Centrelink.”[31] The psychiatrist diagnosed the applicant as suffering from PTSD and as having features of depression and anxiety.

    [31] G18, p.194.

27. In a later report in 2014, a neuropsychologist stated that the applicant “…suffers post-traumatic stress disorder (PTSD) and has a significant history of polysubstance abuse. … He also suffers anxiety and depression with ongoing suicide risk…”.[32] There was, however, said to be “…no real evidence to support a current diagnosis of Schizophrenia, but rather suffers likely ongoing substance induced psychosis and/or psychosis secondary to PTSD.”[33]

    [32] G19, p.207.

    [33] G19, pp.207-208.

28. In a July 2019 health summary report, it was said that prison discharge paperwork stated that the applicant had been diagnosed with schizophrenia and a bipolar disorder.[34] 

    [34] G37, p.443, as reflected in a July 2016 list of diagnoses of the applicant found at G20, p.217.

29. Of his mental health issues, the applicant’s PTSD would seem to be the most significant. In the 2014 sentencing remarks referred to earlier, Justice Beale characterised the applicant’s PTSD as a “deep-seated problem” which was the “root cause” of many of the applicant’s problems. It was, His Honour said, a condition about which it was “difficult to be optimistic …, given [its] the longevity and severity…”.[35]

    [35] G7, pp.91 and 92.

30. In addition to these mental health issues, as mentioned earlier, the applicant also suffers from a substance abuse disorder, albeit a disorder that would appear to be in remission given that the applicant is said not to have indulged in illicit drugs or consumed alcohol for at least the past six years.[36]

    [36] A SFIC [7].

31. Lastly, at least in terms of mental health and psychological issues, the applicant suffers from a mild to moderate intellectual disability,[37] possibly stemming from an acquired brain injury (ABI).[38]

    [37] G19, p.208.

    [38] The existence of the applicant’s ABI was acknowledged by Justice Beale: see G7, p.85.

32. As for his physical health, the applicant suffers from back pain,[39] hepatitis C, eczema and gastro-oesophageal reflux disease.[40] He also suffers from a degree of impairment resulting from an injury to his right arm, wrist and hand sustained while in immigration detention.[41]

    [39] See, for example, treatment plan at G63, p.1001 and a physiotherapist’s report of February 2022 at G70, p.1625.

    [40] G37, p.442.

    [41] G78, p.1704.

33. The applicant has been in remand or prison since around June 2013. Immediately on his release from prison in June 2019, he was placed in detention, where he has remained.

34. He was assaulted at least twice while in prison. One such assault in late October or November 2013 is said by the applicant to have been so serious as to have left him in a coma for two weeks.[42]

    [42] G64, p.1005.

    MATERIAL BEFORE THE TRIBUNAL

35. In endeavouring to undertake the task entrusted to the Tribunal in this proceeding, I have had regard to the submissions made at and before the hearing,[43] evidence adduced at the hearing,[44] and to certain documentary material lodged with the Tribunal prior to the hearing.

    [43] In terms of submissions made before the hearing, reference is made to the Respondent’s Statement of Facts, Issues and Contentions of 19 October 2022 (R SFIC) and to the applicant’s statement of facts, issues and contentions of 7 October 2022 (A SFIC).

    [44] As for evidence adduced at the hearing, the Tribunal heard from the applicant and from a volunteer with Jesuit Social Services, Mr Middleton.

36. That documentary material included:

    (a)1719 pages of documents provided by the respondent under s 501G of the Act (which I refer to as the “G” documents and were marked as Exhibit R1);

    (b)A supplementary bundle of 698 pages of summons and other material lodged with the Tribunal by the respondent (which I refer to as the “SG” documents);[45]

    (c)A bundle of documents of 168 pages (characterised by the applicant as a tender bundle) lodged with the Tribunal by the applicant (which I refer to as the “ATB” documents”), which included:

    (i)A June 2005 report of Amnesty International entitled “The impact of indefinite detention”; and

    (ii)A May 2013 report of the Commonwealth Ombudsman addressing Suicide and Self Harm in the Immigration Detention Network (together marked as Exhibit A1);

    (d)An affidavit of Ms Clare Hughes of 28 October 2022 and annexures thereto (marked as Exhibit A2);

    (e)An individual management plan review of 25 October 2022 (marked as Exhibit A3); and

    (f)A Commonwealth Ombudsman Letter of 20 October 2022 (marked as Exhibit A4).

    [45] The applicant objected to those documents being tendered as a whole and submitted that attribution of probative value to such material was conditional upon the Tribunal first being taken to the relevant parts of that material, a submission from which the respondent did not demur.

    Does APPLICANT Pass the Character Test?

37. The character test is set out in s 501(6) of the Act. Under that section, a person is considered not to pass the test if any of a number of circumstances applies in relation to the person. One such circumstance is when the person has a substantial criminal record.[46] The applicant has such a record. As will soon be seen, he has been sentenced to a term of imprisonment of 12 months or more.[47]

    [46] Act, s 501(6)(a).

    [47] Act, s 501(7)(c).

38. Accordingly, I am not satisfied that the applicant passes the character test. Indeed, I note that the applicant concedes that he does not pass that test.[48]

    [48] A SFIC [2].

1. Given the failure to pass that test, the visa cancellation decision can only be revoked if I am satisfied that there is another reason why it should be revoked.

   Is there another reason why the cancellation decision should be revoked?

2. As is clear from my decision in this proceeding, I am not satisfied that there is such a reason.

3. In arriving at that state of non-satisfaction, I have endeavoured to comply with (and am bound by s 499 of the Act to comply with) an instrument entitled “Direction No 90 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[49]

   [49] Direction 90 imposes requirements that are a precondition for the making of a valid decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] per Colvin J. “Its role is to act as a guide to the exercise of the identified powers”: BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [22]. As guidance, it is up to the Tribunal to determine what is relevant in the circumstances of the case: see Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45]. Note that the applicant initially seemed to submit that a forerunner of Direction 90 applied, being Direction 65: see submission of 30 August 2022, G80, p.1707. In the A SFIC, however, compliance with Direction 90 was said to be required (at [21]).

4. Compliance with Direction 90 requires that I consider whether to revoke the visa cancellation decision “given the specific circumstances of the case.”[50] Direction 90 is not, however, “…an exhaustive universe; it refers to matters that a decision-maker must consider but does not confine what may be taken into account…”.[51]

   [50] Direction 90, cl 5.1(3).

   [51] Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45], citing Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [16]. See also BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [23] as to the position under Direction 90.

5. That consideration is to be undertaken informed by,[52] and in the context of a framework comprised of,[53] certain principles.

   [52] Direction 90, cl 6.

   [53] Direction 90, cl 5.2.

6. Those principles are set out in cl 5.2 of Direction 90. They are as follows:

   “5.2      Principles

   (1)      Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2)       Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (3)       The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

   (4)       Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age

   (5)       Decision-makers must take into account the primary and other considerations relevant to the individual case.  In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.”

7. I turn now to the considerations which (to the extent that they are relevant) I am required by Direction 90 to take into account in deciding whether to revoke the visa cancellation decision.[54]

   [54] Direction 90, cls 5.2, 5.2(5) and 6.

   Considerations – Overview

8. The relevant considerations are those set out in clauses 8 and 9 of Direction 90. They are divided into primary considerations and other considerations.

9. The primary considerations are protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the best interests of minor children in Australia; and expectations of the Australian community.[55] 

   [55] Direction 90, cl 8.

10. The other considerations include (but are not limited to) international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community (including strength, nature and duration of ties to Australia and impact on Australian business interests).[56]

    [56] Direction 90, cl 9(1).

11. The primary considerations are generally to be given greater weight than the other considerations;[57] and one or more primary considerations may outweigh other primary considerations.[58] 

    [57] Direction 90, cl 7(2).

    [58] Direction 90, cl 7(3).

12. While primary considerations are generally afforded more weight than the other considerations, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[59] However, in order for an “other consideration” to be afforded more weight than a primary consideration “…there must be some identified reason, in the particular circumstances, as to why it is appropriate for the particular ‘other consideration’ to be given greater weight than one or more of the three primary considerations.”[60]

    [59] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].

    [60] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [11].

13. In taking considerations into account, “appropriate weight” is to be given to information and evidence from independent and authoritative sources.[61] 

    [61] Direction 90, cl 7(1).

14. As for the considerations required to be taken into account, the applicant’s overall position is, unsurprisingly, that doing so ought to result in a decision to revoke the visa cancellation decision. This is, so it is said, because of “…the low risk that …[the applicant] poses to the Australian community, the best interests of …[the applicant’s] four Australian citizen nieces and nephews, the expectations of the Australian community that would not expect …[the applicant] to be punished administratively following his criminal sentence, the international non-refoulement obligations owed to …[the applicant], the very serious and real impediments to…[the applicant’s] removal from Australia to Somalia, the strength of …[the applicant’s] ties to Australia and that he faces the prospect of indefinite detention given that he cannot be removed from Australia…”.[62]

    Protection of the Australian community[63]

    [62] G5, p.1016 (submission of March 2022).

    [63] Direction 90, cl 8.1.

15. I turn now to the first of the primary considerations to be taken into account, the protection of the Australian community from criminal or other serious conduct.

16. This consideration is one that requires the Tribunal to keep in mind the Australian Government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens, with particular regard being required to be had to the first of the framework principles previously identified (i.e. the principle about how there is a particular expectation engendered when conferring on non-citizens the privilege of entering and remaining in Australia).[64]

    [64] Direction 90, cl 8.1(1).

17. Taking this primary consideration into account requires that regard be had to two subsidiary considerations. They are, in the circumstances, the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[65]

    Nature and seriousness of conduct[66]

    [65] Direction 90, cl 8.1(2).

    [66] Direction 90, cl 8.1.1.

18. As conceded by the applicant, he has an extensive criminal history.[67]

    [67] A SFIC [10].

19. The applicant’s offending in the roughly 10-year period prior to his incarceration in around June 2013 was prolific. In December 2014, Beale J stated that from “…nine court appearances, beginning in August 2005 when you were 21, until December 2012, you have accumulated 52 convictions… You received multiple sentences of immediate imprisonment between 2007 and 2011…”.[68]

    [68] G7, p.80

20. As for the nature of that extensive offending, it is diverse.

21. Without being exhaustive, in reverse chronological order, it included a conviction:

    (a)in December 2015, for recklessly causing injury (attracting a sentence of five months’ imprisonment);

    (b)in December 2014 for intentionally causing serious injury (attracting a sentence of six years’ imprisonment);

    (c)in December 2012, for theft, possessing housebreaking implements and entering a private place without excuse or authorisation (attracting a suspended sentence of imprisonment);

    (d)in August 2012, for theft (attracting a suspended sentence of imprisonment);

    (e)in August 2011, for failing to answer bail, using heroin, theft (x4), attempted robbery, failure to stop a vehicle after an accident (x2), criminal damage, assault and recklessly causing injury (attracting variety of sentences, including a total effective sentence of imprisonment of 14 months). The assault was said to have involved “some pushing and shoving with one of your brothers.”[69];

    (f)in November 2010, for criminal damage, theft, possessing a controlled weapon without excuse and carrying a dangerous article in a public place (attracting an aggregate suspended sentence of two months’ imprisonment, a sentence subsequently restored);

    (g)in November 2007, for breaching an intervention order (attracting a sentence of three months’ imprisonment);

    (h)also in November 2007, for armed robbery (attracting a sentence of 30 months’ imprisonment); and

    (i)in February 2007, for breaching an intervention order (x4), making a threat to kill, unlawful assault, intentionally destroying property (x2), theft and failing to answer bail (x3) (attracting an aggregate sentence of 60 days’ imprisonment partially suspended but subsequently restored). The victims of the applicant’s threat to kill and unlawful assault were the applicant’s mother and one of his brothers, offences which were associated with the intervention order breaches, being an order taken out by members of the applicant’s family preventing him from attending at the family home.[70]

    [69] G7, p.82

    [70] G7, p.81.

22. As for the seriousness of the applicant’s offending, it has been very serious, as acknowledged by the applicant.[71]

    [71] G64, p.1007.

23. As noted by the respondent, the applicant has been convicted of intentionally causing serious injury, recklessly causing injury, making a threat to kill, unlawful assault and armed robbery. This constitutes very serious offending. Indeed, the applicant was sentenced as a serious violent offender under Part 2A of Victoria’s Sentencing Act 1991 in respect of his intentionally causing serious injury conviction.[72]

    [72] G7, pp.76 and 82.

24. The seriousness of the applicant’s offending is underlined when regard is had to the two sets of sentencing remarks before me, the first relating to the applicant’s November 2007 conviction for armed robbery and the second relating to the December 2014 conviction for intentionally causing serious injury.

25. In November 2007, His Honour Judge Gullaci described events that occurred in March 2007.[73] The applicant stole alcohol from a licensed grocer. In the course of doing so, he threatened a female shop keeper and her husband with a knife. Those threats were said to have included a statement to the effect that he would kill the husband if followed.[74] 

    [73] G8.

    [74] G8, p.97.

26. In December 2014, His Honour Justice Beale described events that occurred in June 2013 when the applicant was aged 28.[75] The applicant and two others (called in these reasons H and S) injected methylamphetamine (Ice). H proceeded to abuse the applicant and argue with him about drugs. After some time, the applicant obtained two knives whereupon H hit the applicant in the head with a hammer. The applicant and H then exchanged blows. S sought to intervene but was warned off by the applicant. The applicant then stabbed H in the torso approximately three times. Then, according to His Honour:

    “[H] struggled free and ran down the driveway. You chased him. He tripped on a tree root on the nature strip and landed on the road. You walked up to [H] and stood with your legs over [H]'s torso and yelled something about drugs. [H] handed you a quantity of ice and you started to walk away. But then you turned around and stabbed [H] to the left upper thigh. [H] screamed out in pain. You came back again to [H] and stabbed him in the right leg, just above the knee. As you began to move away, [H] yelled out 'you're fucking going to jail you dog'. You then walked back to [H], who was then in the middle of the road and stabbed him twice more in the torso. The full-length of the larger knife was embedded in [H]'s stomach and the blade of the knife bent. The next stabbing went about three quarters of the way into the stomach. You then walked back towards the unit, throwing the larger knife onto the roof of your garage and hiding the smaller knife in the bushes under the clothesline. [H] stumbled across the road and collapsed. Neighbours administered first aid to him and called 000.”[76]

    [75] G7.

    [76] G7, p.78.

27. As for the impact on H of this offending, he underwent emergency surgery for several hours and was placed in an induced coma. Several days after the initial surgery, he required further surgery because of injuries to his bowel and pancreas. A forensic physician opined that H had “…sustained a combination of substantial, severe and life-threatening injuries with high risk of future impairment. There is no doubt whatsoever that these injuries would have been fatal without the extensive medical treatment….”. More specifically, H’s injuries and problems were said to include at least five stab injuries and psychiatric problems.[77]

    [77] G7, p.79.

28. A finding that the applicant’s offending has been very serious is consistent with an assessment of that offending having regard to factors to which I am required by Direction 90 to have regard. I turn now to a consideration of those factors

    Without limiting the range of conduct that may be considered very serious, the Australian Government and the Australian community view as very serious certain crimes and conduct, including violent crimes, crimes of a violent nature against women and acts of family violence[78]

    [78] Direction 90, cl 8.1.1(1)(a).

29. A finding that the applicant’s offending was very serious reflects the view which the Australian Government and the Australian community are said in Direction 90 to have. As is apparent from the description earlier of that offending, it involved crimes of violence, crimes of a violent nature against women (the shop keeper threatened with a knife in March 2007 and, possibly, the applicant’s mother in relation to the offending of which the applicant was convicted in February 2007) and acts of family violence (a point to which I will return).

    Without limiting the range of conduct that may be considered serious, the Australian government and the Australian community consider to be serious certain crimes and conduct[79]

    [79] Direction 90, cl 8.1.1(1)(b).

30. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    With the exception of certain crimes and conduct (such as crimes of a violent nature against women and acts of family violence), the sentence imposed by the courts for a crime or crimes[80]

    [80] Direction 90, cl 8.1.1(1)(c).

31. As submitted by the respondent, since his arrival in Australia in 2003, the applicant has been the subject of multiple sentences of imprisonment for terms which, in aggregate, amount to roughly 9 years (even ignoring sentences imposed in respect of offending that involved family violence and violence against women).[81]

    [81] R SFIC [31].

32. In this regard, the imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[82] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[83]

    The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness[84]

    [82] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].

    [83] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].

    [84] Direction 90, cl 8.1.1(1)(d).

33. While it has been roughly seven years since the applicant’s last serious offending, he has been in prison or detention for the last nine years. In this regard, as I see it, in the context of an overarching consideration concerned with community protection and a requirement to keep in mind a commitment to that protection, the assessment required of the Tribunal by this frequency and trend factor is one that ought to be undertaken when the subject of it was free in the community. When so assessed, I find the applicant’s offending to have been both frequent and of increasing seriousness. Indeed, in his sentencing remarks of December 2014, Beale J observed that the applicant’s offending in June 2013 involved “…  a marked escalation in violence on your part when compared with your prior convictions for violence.”[85]

    The cumulative effect of repeated offending[86]

    [85] G7, p.82.

    [86] Direction 90, cl 8.1.1(1)(e).

34. The cumulative effect of the applicant’s offending has likely been significantly adverse to his victims and to the broader community. The harm caused is touched on later when discussing the nature of the harm that would be suffered were the applicant to engage in further criminal or other serious conduct.

    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending[87]

    [87] Direction 90, cl 8.1.1(1)(f).

35. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)[88]

    [88] Direction 90, cl 8.1.1(1)(g).

1. The applicant has offended since being made aware, in writing, that his visa might be cancelled should he again offend.

2. In a February 2008 letter, the applicant was told that, while no consideration was then being given to cancelling his visa, that could change were he to be convicted of further crimes.[89] 

   [89] G9, pp.107-108.

3. In February 2012, the applicant was similarly advised of a decision not to cancel his visa on character grounds, but it was said to be a decision which “may be reconsidered if you commit further offences”.[90]

   [90] G9, pp.104-105.

4. The applicant said he did not remember either of these warning letters.[91] He did, however, sign a notice acknowledging receipt of the second letter.[92]

   [91] G64, p.1005.

   [92] G9, p.106.

5. It was submitted that these warnings should not weigh against the applicant as “…he is not aware that he was on notice” that his visa could be cancelled.[93]

   [93] G65, p.1021.

6. I do not accept that submission. The applicant’s current state of awareness about the warnings is not particularly relevant. What is relevant is whether he was aware of the warnings when he offended. In this regard, I note it was only a little over one year after his receipt of the February 2012 warning letter that the applicant engaged in his most serious offending. I infer from this that, at the time of that offending, he was aware of that warning.

   Risk to the Australian community should Applicant commit further offences or engage in other serious conduct[94]

   [94] Direction 90, cl 8.1.2.

7. I turn now to the second matter to which consideration must be given in the context of the protection of the Australian community primary consideration: the risk to the community should the applicant commit further offences or engage in other serious conduct.

8. In considering that risk in that context, under Direction 90, regard should be had to the Government’s view that the tolerance for risk of future harm becomes lower as the seriousness of potential harm increases, so that some “…conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.”[95] 

   [95] Direction 90, cl 8.1.2(1).

9. In assessing risk, I am required by Direction 90 to have regard, cumulatively, to:

   (a)the nature of harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and

   (b)the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending and evidence of rehabilitation achieved).[96]

   [96] Direction 90, cl 8.1.2(2).

10. As to the nature of harm to individuals should the applicant engage in further criminal or other serious conduct, based on his history of offending and the nature of certain of the conduct engaged in by the applicant, individuals would be likely to suffer significant harm, comprising significant physical and psychological harm, and possibly death (consequent upon the infliction or threat of violence, including violence and threats involving the use of weapons such as knives), and financial harm (by way of damage to property and theft).

11. As to the nature of harm to the Australian community should the applicant engage in further criminal or other serious conduct, again based on his history of offending, it would reflect the nature of the harm suffered by individual members of the community as a result of that conduct. Further, the community would be harmed by having to devote scarce resources to meet additional law enforcement, incarceration and healthcare costs resulting from the applicant’s conduct. Moreover, unlawful violence towards members of the community of the type engaged in by the applicant in the past engenders concerns about safety, concerns which encourage suspicion and limit social cohesion, thereby harming the community as a whole.

12. As for the likelihood of the applicant engaging in further criminal conduct, on behalf of the applicant, it was submitted that his risk of reoffending is low[97] or, as put at the hearing, nil to low.

    [97] A SFIC [7].

13. I do not accept that submission. Instead, while I am not satisfied that it is likely that the applicant would engage in further criminal conduct should he be released into the community, I find that the risk of his doing so is significant.

14. Before delving into my reasons for this finding, I mention that the mere fact that the applicant has engaged in certain conduct in the past is not probative of there being a material risk of him doing so again.[98] 

    [98] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65]: “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”

15. According to Mortimer J in Splendido,[99] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. While, in some circumstances, the past may constitute a reliable guide to the future,[100] for it to do so, more than a mere outline of past conduct needs to be shown if over-valuing personality-based explanations and under-valuing situational-based explanations for conduct are to be avoided.[101]

    [99] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.

    [100] See, for example, Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 at [26], where the Court was dealing with an applicant who “had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so.”

    [101] See Hughes v R [2017] HCA 20 at [70]-[72] per Gageler J.

16. What that “more” includes is revealed by decisions in cases such as Guo Wei Rong.[102] There it was said that:

    “The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.” 

    [102] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 574.

17. In Splendido,[103] Mortimer J stated that:

    “The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.”

    [103] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78].

18. In Hughes,[104] the High Court grappled with the application of tendency evidence in the context of an individual charged with sexual offences against minors. In that context, Nettle J (albeit in dissent) stated (at [154]) that:

    “Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence.”

    [104] Hughes v R [2017] HCA 20.

19. Hence, facts need to be identified about the applicant’s circumstances, or about the nature and circumstances of his past conduct, that rationally support the assessment of the risk of the applicant engaging in the relevant conduct. I will endeavour to do so shortly. First, however, mention should be made of other risk assessments made in relation to the applicant.

20. In December 2014, Justice Beale assessed the applicant’s prospects of rehabilitation as being bleak[105] and poor.[106] I note that the applicant did not appear to cavil with that assessment. Instead, he submits that, since it was made, he has made progress on a number of fronts and been rehabilitated.

    [105] G7, p.92. This echoed His Honour Judge Gullaci’s assessment in November 2017: G8, p.100.

    [106] G7, p.95

21. It might be said that the applicant’s submission finds support in certain of his medical records before the Tribunal. In this regard, in the context of a mental health consultation in November 2020 and in a later medical report (apparently made around November 2021), the applicant’s risk of causing harm to himself and others was said to be low.[107]

    [107] G60, p.649; G62, p.999.

22. The assessments of risk reflected in those medical records are not inconsistent with my finding that the relevant risk is significant, not low. That finding addresses the recidivism risk in the future, should the applicant be released into the community. The views expressed in the medical records relate to the then current risk, at a time when the applicant was in detention. That is a context which I consider differs materially from that in which the applicant would find himself were he to be free in the community.

23. When free in the Australian community, the applicant’s offending was frequent and, often, very serious. It was not comprised of a singular, one-off, incident. This is suggestive of the applicant having certain traits or habits that render him prone to offend.

24. While free in the community, he appeared to neither learn from nor be deterred from offending by his encounters with police and the judicial system. As noted by the respondent, he twice breached suspended sentences and failed to answer bail on several occasions. As mentioned earlier, his most serious offending occurred only a little over a year after he was warned that his visa was at risk should he re-offend. As noted by Justice Beale in 2014, the applicant had received immediate terms of imprisonment but had continued to offend upon release.[108]

    [108] G7, p.92.

25. Nevertheless, and as submitted by the applicant, I accept that he has made significant strides in terms of rehabilitation and has made progress on a number of fronts while in prison and detention.

26. The applicant has undertaken a large number of programs while incarcerated, programs directed to behavioural modification and improvement of skills.

27. In terms of behavioural modification programs, reference is made to:

    (a)in October 2015, a 44-hour program entitled “Breaking the Ice;”[109]

    (b)in July 2015, a six-hour alcohol, drugs and stress management program;[110]

    (c)in April 2016, a 40-hour open semi-intensive drug and alcohol program[111] (plus individual counselling after completion of the program);[112]

    (d)in August 2016 and February 2017, a “VACRO” relink program;[113]

    (e)in October 2016, a “thrive tribe” positive psychology workshop;[114]

    (f)in March 2017, a program run over six weeks entitled “Change on the Inside” (to which the applicant made a positive contribution[115]);[116]

    (g)in 2017, a disability and supported pathways violence intervention program (involving 64 sessions);[117]

    (h)in May 2018, a 40-hour cognitive disability intensive substance use program; and[118]

    (i)in May 2021, an anger management program.[119]

    [109] G10, p.126: a program described at G21, p.245.

    [110] G10, p.127.

    [111] G10, p.128: a program described at G10, p.131.

    [112] G10, p.131.

    [113] G10, p.129; G28, p.341.

    [114] G10, p.130.

    [115] G14, p.151.

    [116] G14, p.152.

    [117] G29, p.386.

    [118] G28, p.347.

    [119] G67, p.1598.

28. In terms of skills programs, the applicant completed:

    (a)in 2016, a work safely in the construction industry unit of study;[120]

    (b)in 2017, study modules relating to participating in a learning environment, using whole numbers and money,[121] cleaning glass surfaces, maintaining furniture and sorting waste; and[122]

    (c)in 2018, study modules relating to traffic control, writing basic workplace information, working with measurements and preparing coffee.[123]

    [120] G14, p.155.

    [121] G24, p.262.

    [122] G24, p.263.

    [123] G29, pp.359-363.

29. In addition, the applicant has engaged in counselling.

30. Reference is made, in particular, to the applicant having taken advantage of treatment made available by Foundation House, an organisation which describes itself as a specialist refugee trauma agency supporting survivors of torture and other traumatic events which, amongst other things, provides counselling services. The applicant had nine teleconference sessions with one of Foundation House’s senior practitioners as at June 2021,[124] and around another three sessions up to August 2021.[125] 

    [124] G53, p.596.

    [125] G60, p.688, where reference is made to the applicant having had around a dozen sessions.

31. Moreover, since June 2014, the applicant has engaged with the Jesuit Social Services African visitation and mentoring program.[126] This involved him participating in sessions with a mentor every six weeks or so until at least March 2017.[127]

    [126] G10, p.132.

    [127] G13, p.146.

32. On behalf of the applicant, it was submitted that his offending occurred in a context which involved him being in the grips of a substance abuse disorder and suffering from an intellectual disability, an acquired brain injury and “untreated” mental health issues.[128] Implicitly, it is suggested that this is not a context in which the applicant would find himself were he to be now released into the community. In large part, I am not satisfied that this is so.

    [128] A SFIC [7].

33. As for the applicant’s substance abuse disorder, I accept that it would appear now to be in remission. The applicant submits, and I accept, that he has not indulged in illicit substances or alcohol for at least the last six years,[129] noting the negative results from testing conducted since early 2016.[130] That is a lengthy period of abstinence. I do note, however, that the applicant has reverted to the use of illicit substances after other, albeit substantially shorter, periods of abstinence while imprisoned.[131] Moreover, the use of illicit drugs was a means by which the applicant self-medicated his PTSD, a condition which (as will soon be seen) still troubles the applicant.[132]

    [129] A SFIC [7].

    [130] See G29, p.371 [January 2016 to March 2018]; G42, p.472 [June 2018]; G29, pp.384-385 [July 2018]; G42, pp.475-476 [April 2019].

    [131] See G8, p.99 [9].

    [132] G7, p.85.

34. As for the applicant’s intellectual disability, acquired brain injury and “untreated” mental health issues, the disability and the injury would remain with the applicant on release into the community.

35. As for the “untreated” mental health issues, inherent in the applicant’s submission are propositions that:

    (a)the applicant’s mental health issues had been “untreated” when he offended;

    (b)treatment for issues of the type suffered by the applicant is available in the community;

    (c)the treatment so available is likely to address symptomology conducive to offending; and

    (d)the applicant will obtain that treatment. 

36. I am not satisfied as to the validity of several of these propositions.

37. As for the proposition that the applicant’s mental health issues had been untreated when he offended, I am not satisfied that this is the case. While I accept His Honour Judge Gullaci’s characterisation of the applicant’s PTSD condition as untreated, this would have reflected the position at the time of His Honour’s sentencing remarks in 2007.[133]

    [133] G8, p.101; G17, p.187.

38. In late 2014, Justice Beale stated that the applicant had “…been on a disability pension due to mental health issues for much of the time that you have been in Australia.”[134] During that time, in order to have qualified for a disability support pension for his mental health issues, those issues would need to have been “permanent”, that is, fully diagnosed and treated.[135] Consistent with having to meet that requirement in order to qualify for a disability pension, I note the applicant’s statement in 2013 that the mental health diagnoses which he then claimed had been made in relation to him were “made during an assessment through Centrelink.”[136]

    [134] G7, p.84.

    [135] The Social Security Act 1991 (SSA) in force in September 2003 required that to attract a disability support pension the condition had to be permanent (s194) and that in order to be permanent the condition had to have been “diagnosed, treated and stabilised”: see schedule 1B to the SSA. That would appear to have been an ongoing requirement, noting, for example, that the same applied to the SSA in force in April 2008.

    [136] G18, p.194.

39. As for the proposition that treatment for mental health issues of the type suffered by the applicant is available in the community, I accept that is so. In this regard, the applicant does receive treatment for his mental health issues while in detention[137] and, given the nature of that treatment, there is no reason to believe it is unavailable in the community.  

    [137] See, for example, the health summary reports prepared for the Commonwealth Ombudsman in July 2019 at G59, pp. 645-646; in March 2021 at G57, pp.636-640; in September 2021 at G58, pp.641-643. See also the list of various medical appointments arranged for the applicant while in detention in the period to November 2021 at G60, pp.934-975.

40. As to whether the treatment available in the community will address symptomology conducive to offending, I note that improvements in the applicant’s conduct while incarcerated coincided with him being treated for his mental health issues. While initially the applicant was classified in the prison system as being a high risk of reoffending,[138] his conduct in prison appeared to improve as from around 2016.[139] In 2017 and 2018, he received a number of awards relating to his conduct in prison.[140] In March 2019, a Forensicare nurse who had been reviewing the applicant since early 2018 stated that, upon “…summarising his notes from his initial entry into custody in 2013, the evidence shows a far different character to whom first entered.”[141]

    [138] G20, p.230.

    [139] G20, p.243, where it is said that the applicant “…is now working in nuts and bolts and is always one of the first prisoners in the unit to commence work without being told. [He]…is very respectful towards staff and inmates and is often seen trying to support and help out the more cognitively impaired prisoners in the unit. I [the writer] have praised …[him] in regards to how far he has come in regards to his improved unit behaviour.” This is not to say that no incidents occurred in or after 2016 see, for example, G27, p.331. It is, however, apparent that the number of such incidents declined dramatically: see G27, pp.273-275. Note also the various behavioural awards received from March 2017 to May 2018 while an inmate in a particular unit intended to house those with intellectual disabilities; G29, pp.357-358.

    [140] See list at G80, p.1712.

    [141] G35, p.439. At the hearing, it was contended that the applicant’s improved conduct was in part a result of the injury and resultant coma suffered by the applicant in November 2013, characterised as a life changing event. After that, however, the applicant offended, albeit that the relevant offence was described by the applicant’s counsel as context specific, and tested positive to the use of illicit substances in 2014.

41. It is submitted on behalf of the applicant that he receives inadequate medical care while in detention; “he simply does not receive appropriate treatment and support in immigration detention.”[142] In support of that submission reference was made to bundles of requests for medical assistances made by the applicant both for his physical conditions[143] and his mental health issues.[144] It is then asserted that the assistance has not been forthcoming.

    [142] G65, p.1041-somewhat confusingly, it is also submitted that certain of the applicant’s conditions, including hiss PTSD, are “being managed”-A SFIC [25]

    [143] G55, pp. 603-621

    [144] G56, pp,.622-636

1. The applicant has not identified what additional treatment and support he requires in order for his medical care to be appropriate. If care of the nature made available to him in detention is not appropriate, the issue arises as to what care he would require for his mental health issues to be treated appropriately and whether he would be able to obtain access to such care if free in the community.

2. Nevertheless, I do not accept that the applicant has not been receiving or, at least, offered, appropriate care in detention. Applicant requests for medical care do not establish a lack of care. The Commonwealth Ombudsman has been repeatedly advised that appropriate treatment for the applicant’s medical issues is available to him in detention.[145] Moreover, it is clear that extensive care has been provided to the applicant[146] and that, on occasion, the applicant has failed to avail himself of care made available to him (as outlined later).

   [145] Note statements made on behalf of the medical services provider to detainees to the effect that the applicant did not have any diagnosed conditions that could not be properly cared for “in their current situation”: -see G57, p.6740 and G58, p.643. This is echoed in advice to the Commonwealth Ombudsman in April 2022 that the applicant did “not have any medical conditions that cannot be adequately managed in held detention” and that the applicant was receiving treatment for his health concerns: -see Exhibit A3

   [146] See footnote 136

3. While appropriate care is being made available to the applicant while in detention, thereby mitigating or limiting symptomology conducive to offending, on the material before me I am not satisfied that such symptomology when in the community will be addressed by similar care.

4. While the applicant’s more recent conduct would appear to have improved substantially relative to his early conduct in prison, it is nevertheless clear that his conduct in detention has not been exemplary.

5. As noted by the respondent,[147] the applicant has been involved in a variety of incidents while in detention, characterised as eight major incidents and 42 minor ones.[148]  While some of those incidents did not appear to involve misconduct by the applicant, most did, with many incidents said to entail abusive and threatening conduct.[149]

   [147] R SFIC [40].

   [148] G47, p.491.

   [149] G47, pp.492-543.

6. Moreover, despite the care and treatment made available to him in detention, the applicant’s PTSD remains problematic.[150] In a May 2020 referral to Foundation House, the applicant’s torture and trauma symptoms were said to be causing significant functional disturbance.[151] In Foundation House’s follow up report of June 2021 the applicant was said to impress “…as suffering from persistent symptoms of depression and posttraumatic stress”[152] and to suffer “…from disabling symptoms of depression and post-traumatic stress”.[153] In February 2022, the applicant stated that he has terrible nightmares and wakes up screaming.[154] Indeed, on the applicant’s behalf, it is submitted that his mental health has continued to decline while in detention.[155]

   [150] While the focus of these comments is on the applicant’s PTSD, I note that in April 2020 and in March and May 2021 the applicant was said to be suffering from hallucinations: see G60, pp.650 and 652.

   [151] G52, p.594.

   [152] G53, p.598.

   [153] G53, p.600.

   [154] G64, p.1008.

   [155] G65, p.1021.

7. The trouble with the applicant’s PTSD remaining problematic is that, according to Justice Beale, it was “the root cause” of many of the applicant’s problems[156] (noting, for instance, that the applicant had been convicted of a number of serious offences before 2008, when he says he started using heroin and subsequently Ice).

   [156] G7, p.91.

8. Indeed, in assessing the risk of re-offending, the applicant’s PTSD, his acquired brain injury and his intellectual disability would, on the material before me, seem to be a dangerous combination. In the 2014 neuropsychologist’s report referred to earlier it was said that the applicant’s “… established history of PTSD and psychosis, specifically associated with highly traumatic personal threats, ongoing instability of mental status and cognitive vulnerabilities associated with his ABI would be expected to leave [the applicant] highly likely to react with extreme and mindless aggression in situations of high emotional arousal. His learned response from early childhood is fight or flight with extreme personal consequences either way.”[157]

   [157] G19, p.209.

9. The applicant’s explanation for the incidents in which he has been involved while in detention is, in essence, that the treatment for his mental health issues while in detention has been inadequate. He has, he said: “…had a few incidents in MITA. The situation in MITA is very bad. I am not receiving the care and support that I need for my mental health. I have asked and asked so many times to receive treatment and support but I am not receiving this. I am not receiving support for my disabilities either. In MITA, there is no separate unit or support for detainees with physical and mental disabilities; I had this support in Port Phillip prison but not here.”[158]

   [158] G64, p.1008.

10. This explanation segues into the next proposition concerning the likelihood of the applicant obtaining and maintaining treatment for his mental health issues when free in the community. As to this proposition, even if treatment is available in the community that would address symptomology conducive to offending, I am not satisfied that the applicant would be able or prepared to access that treatment.

11. In terms of the applicant being prepared to access treatment in the community, on the material before me I do not accept the applicant’s submission that, since 2015, he has taken every opportunity available to him to obtain treatment for his conditions.

12. I accept that the applicant has, on many occasions while in detention, sought medical help.[159] He has also, on many occasions, obtained medical help,[160] as well as help from counselling services (such as those provided by Foundation House and Jesuit Social Services). Nevertheless, on the material before me it is clear that the applicant has not availed himself of all mental health services available to him in detention.  For instance, in the period 1 June 2021 to 7 November 2021, the applicant had eight appointments with a psychiatrist of which he attended one, one was cancelled and the rest he did not attend.[161] He is reported as having stated, in August 2021[162] and March 2022,[163]  that he did not want to see a psychiatrist. In July 2021, the applicant’s counsellor from Foundation House noted that the applicant had “declined the last two sessions” and that she would not be making another appointment with him at that time.[164] Shortly, thereafter, Foundation House advised that its engagement with the applicant had ceased[165] (and I note that the applicant acknowledges that he is not currently receiving ongoing support from Foundation House).

    [159] G55, pp.603-622; G56, pp.623-635.

    [160] See footnote 136.

    [161] G60, pp.934-938.

    [162] G58, p.642.

    [163] G69, p.1624.

    [164] G60, p.693. I note the applicant’s evidence to the effect that he missed the relevant appointments by accident.

    [165] G60, p.688.

13. Even if I were to be satisfied that the applicant would, once free in the community, seek ongoing treatment for his mental health issues, there is nothing in the material before me to suggest that the plans he now has in place to gain access to that treatment will result in treatment being available to an extent likely to be necessary to address those issues.

14. In this regard, the focus of the applicant’s plans in terms of medical treatment for his mental health issues once released into the community is on liaising with a general practitioner to procure a mental health care plan[166] (albeit I note his evidence to the effect that he would seek to re-engage with Foundation House once free in the community). Such a plan allows, amongst other things, for the beneficiary of it to claim on Medicare the costs of sessions with a mental health professional. The number of sessions so claimable in a year is, however, limited. There is nothing before me to suggest that the number of sessions so claimable will be sufficient to allow for adequate treatment of the applicant’s issues. 

    [166] G65, p.1023. See also G64, pp.1009 at [50], 1010 at [59] and 1013 at [78].

15. On behalf of the applicant, it is submitted that he has good prospects of leading a pro-social life once free in the community.[167] In this regard, protective factors are said[168] to include:

    [167] A SFIC [9].

    [168] G65, pp.1022-1024.

    (a)having stable accommodation. On the material before the Tribunal, no specific accommodation is said to be available and no third party has undertaken to make accommodation available. Instead, it is said that the applicant is on a waiting list for accommodation. It would appear, however, that he was placed on that list when in prison, more than three years ago.[169] Nevertheless, I note the applicant’s evidence to the effect that he has been assured by Jesuit Social Services (the operator of the Brosnan centre) that accommodation will be available for him on his release into the community. In this regard, the applicant has previously resided in housing provided through the Brosnan Centre and was doing so around the time of his most serious offending.[170]

    [169] G64, p.1009.

    [170] G18, p.194

    (b)being engaged with a social worker. It is said that the applicant will have the support of LinkOut to access a social worker who will assist him in engaging with services in the community.[171] It is not clear that Link Out (being a support program for men leaving prison) still operates[172] or that it would be available to those leaving immigration detention as opposed to prison. In any event, the nature and extent of the services provided is unclear.

    (c)being engaged with a psychologist. Here it is said that the applicant will seek from a general practitioner a mental health care plan.[173]

    (d)having employment. While it is clear that the applicant would like to obtain employment when free in the community, he has no offer of employment. I note the submissions made on the applicant’s behalf in August 2022 to the effect that, due to his various disabilities, the applicant “would need to rely upon a Centrelink payment for an income”[174] and that he is likely to again qualify for a disability support pension. Inherent in the latter submission is a proposition that the applicant has a continuing inability to work (noting the applicant’s evidence to the effect that he had previously been on a disability support pension because he could not work). As I see it, unemployment is not conducive to pro-social conduct. This is especially so given the resultant potential for boredom and a lack of supervision, control and ritual[175] in the community relative to that applicable in prison and detention.   

    (e)continuing his studies. It is said that the applicant will undertake further studies to improve his English reading and writing skills and with a view to become a motor mechanic.

    (f)remaining drug and alcohol free.

    (g)being part of his soccer community. It is said that the applicant will connect with his local soccer club so that he can play sport on the weekends and become connected with a positive community of likeminded individuals.

    (h)avoiding anti-social connections. It is said that the applicant will avoid the same networks that he had years ago.

    (i)re-connecting with his family. It is said that the applicant is committed to re-building his relationship with his mother and siblings.[176] In evidence before the Tribunal, however, it was clear that this was not a matter to which the applicant was committed. In essence, his evidence was that his family wanted nothing to do with him and his intention was to respect their wishes in this regard.

    (j)practising his faith.

    (k)being a role model in his community, showing other young African men how to live a good life which is positive and crime free.

    [171] G64, p.1009 [49].

    [172] A website with information concerning the program refers to content being archived and shown only for historical purposes: see See also G64, pp.1009 at [50], 1010 at [59] and 1013 at [78].

    [174] G80, p.1715.

    [175] Noting Mr Middleton’s evidence that the applicant is a person who craves ritual.

    [176] See also G64, p.1010 [56]-[60].

16. While not included in that list of protective factors, I note:

    (a)Jesuit Social Services have expressed a commitment to provide ongoing support to the applicant under the auspices of its African visitation and mentoring program.[177] Indeed, the applicant’s current mentor under the program, Mr Middleton, intends to remain in contact with the applicant after his release into the community.[178] In this regard, as I understood Mr Middleton’s evidence, he considered that this would likely entail outings with the applicant on a roughly monthly basis.

    (b)The applicant’s submission that he is willing to engage with ongoing trauma counselling provided by Foundation House.[179] In his evidence that applicant stated that he would seek Foundation House’s counsellor’s help if he were released into the community. [180]

    (c)The applicant’s submission that he would obtain access to the National Disability Insurance Scheme.[181] In that regard, it was asserted that he would be able to obtain admission as a participant in the Scheme on release into the community.  On the material before me, that assertion was unsubstantiated. While it is clear that the applicant suffers from a number of mental health issues and an intellectual disability, this does not of itself translate into an entitlement to become a participant in the scheme.[182]

    (d)The statement in March 2022 of the Secretary of the Somali Australian Council of Victoria stated in relation to the applicant that the Council “would be happy to be part of his rehabilitation”.[183] What this means in terms of the nature and extent of support for the applicant is not identified.

    [177] G23, p.261.

    [178] G23, p.256-7.

    [179] A SFIC [9]-[33].

    [180] At the hearing, the applicant’s evidence was to the effect that he had tried to re-engage with the Foundation House counsellor but that she was not at work. He had, he said, no appointments with her and it was acknowledged that he was not currently receiving ongoing support from Foundation House.

    [181] Ibid.

    [182] For instance, for the applicant to become a participant, it might be necessary to establish that he has a substantially reduced functional capacity to undertake one or more of certain activities: see National Disability Insurance Scheme Act 2013, s 24(1)

    [183] G68, p.1599.

17. While some of these so-called protective factors are positive (such as the ongoing role Mr Middleton intends to play), I am not satisfied that they would operate to mitigate the risk of the applicant re-offending to an extent consistent with an assessment of that risk as low. Many of those factors are aspirational, reflecting the current plans and intent of the applicant. As the applicant says, he has “…a lot of plans in place to make sure that I can live in the Australian community if I can have my visa given back to me.”[184] As I see it, a person’s aspirational plans, albeit commendable, are not factors of significance in protecting the community against the risk of the person offending. This is especially so in a context where it is accepted that the applicant would require a lot of support if released into the community.  

    [184] G64, p.1013.

18. Moreover, much is revealed by what is not included in that outline of what is said on the applicant’s behalf to be protective factors.  The applicant is estranged from his family and his evidence was that he wants to stay away from his friends as they are, he says, all criminals. Apart from the roughly monthly outings with Mr Middleton, there is, in essence, no specific non-institutional support identified as being available to the applicant were he to be released into the community (albeit noting the applicant’s evidence to the effect that he would seek to re-engage with Foundation House when free in the community). This is not a context conducive to mitigation of the applicant’s risk of re-offending.

19. That risk is, however, said to be mitigated given the applicant’s remorse for, and insight into the cause of, his offending.

20. As for remorse, at the hearing of this proceeding and in material lodge prior to the hearing,[185] the applicant repeatedly expressed his remorse for his offending. I accept that he was genuine in so doing and I note that the applicant’s current mentor in the African visitation and mentoring program attests to his remorse.[186] As for insight, the applicant’s first mentor in that program suggested that the applicant had a high level of insight into his circumstances,[187] a suggestion reflected in certain of the applicant’s medical records.[188]

    [185] See, for example, G29, p.388.

    [186] G23, p.256.

    [187] G13, p.136.

    [188] See, for example, G62, p.998 where it is said that the applicant has good insight. This statement is repeated as at March 2021: G69; p.1623.

21. While I do not question the sincerity of the applicant’s remorse or the existence of his insight, they are likely only to play a positive role in changing behaviour when the behaviour is not impulsive, and the person concerned is able to think through the likely impact and consequences of behaviour. In the circumstances, they are unlikely to operate as protective factors of significance. Similarly, I do not consider the applicant’s awareness of the risk that further offending would place on his visa status to be a protective factor of significance.[189]

    [189] A SFIC [35].

22. On the material before me, when frustrated or emotionally aroused, the applicant is likely to have difficulty in reflecting on and altering his behaviour in light of likely consequences, a difficulty reflective of the applicant’s intellectual disability and mental health issues. In this regard:

    (a)in a 2011 psychologist’s report the applicant was said to be "impulsive in nature", with a "low tolerance for frustration" and a limited ability to "reflect on the impact his behaviour has on both himself and others.”[190]

    (b)in a neuropsychological report in 2011, it was observed that the applicant “…has difficulty foreseeing potential problems and how to avoid these in daily life…” so that his “…ability to truly appreciate the consequences of his actions and alter his behaviour to prevent future offending is compromised.”[191]

    (c)as mentioned earlier, in a 2014 neuropsychologist’s report, it was suggested that the applicant’s likely response in certain circumstances would be “mindless aggression”.

    (d)I note the applicant’s submission which questions his capacity to make reasonable judgments.[192]

    [190] G17, p.186.

    [191] G17, p.191.

    [192] A SFIC [82].

    Conclusion

23. I find that the protection of the Australian community consideration weighs against finding that there is another reason for revocation of the visa cancellation decision, to a significant extent.

24. As a non-citizen who has been allowed to enter and remain in Australia, the applicant’s offending reflects a failure to have met the expectation of him that he be law-abiding and not cause or threaten harm to individuals or the Australian community.

25. The attribution of significant weight to the consideration reflects the very serious nature of the applicant’s offending and the severe harm likely to flow from, and significant risk of, its repetition.

    FAMILY VIOLENCE[193]

    [193] Direction 90, cl 8.2.

1. If the applicant’s visa cancellation decision is not revoked and if, as I have concluded, refoulement is presently not reasonably practicable, then whether or not non-refoulement obligations are owed in respect of him, the applicant would remain in detention as an unlawful non-citizen[254] until he is granted a visa,[255] a court determines his detention to be unlawful[256] or removal becomes reasonably practicable. This is subject to the outcome of any potential protection visa application and to the possibility of exercise of ministerial non-compellable powers found in provisions such as s 195A of the Act.[257]

   [254] Act, s 189. As submitted by the applicant, if an application for a visa were not to be made, the applicant’s removal from Australia would be required under the Act, s 198(2B). That removal, however, would only occur when it was “reasonably practicable”.

   [255] Noting that the applicant is not barred by s 501E of the Act from applying for a protection visa.

   [256] Act, s 196(4).

   [257] Act, s 195A provides for the grant of a visa. See also Act, ss 197AC and 197AE which allow for a person to reside in a place other than an immigration detention centre by way of a “residence determination”. If a protection visa application were to be made, absent a protection finding, removal as soon as reasonably practicable would be required if the grant of the visa application was refused and the application for it finally determined: Act, s 198(6). 

2. This means that the applicant faces the prospect of remaining in detention for a significant period of time,[258] a period which will be indefinite in duration especially if, as the applicant submits is likely, protection findings are made with respect to the applicant but he is refused a protection visa.[259] The applicant remaining in detention for such a prolonged period will have adverse consequences for him (and will be expensive for the Commonwealth[260]).

   [258] See G74, p.1638 as to average processing times in respect of visa applications.

   [259] A SFIC [64].

   [260] G73, pp.1634-1635.

3. As was recently said by the Tribunal in XTLP,[261] “[i]ndefinite detention is not to be taken lightly. It is certainly a bleak prospect which cannot be easily dismissed in a compassionate society which values human rights.” Generally, in detention, the applicant would continue to be denied freedom of movement. His capacity to liaise with third parties would be constrained, as would his capacity to implement plans he might have had for his future. According to the applicant, he can do very little in detention, and has less work and educational opportunities than he had in prison.[262]

   [261] XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2357 at [109].

   [262] G64, p.1008.

4. I note the Commonwealth Ombudsman recently expressed concern “…about the serious risk prolonged detention may pose to …[the] physical and mental health…” of people in immigration detention.[263] Indeed, in a report in 2013 the Ombudsman had this to say about detention for lengthy periods:

   The international and Australian evidence demonstrates that immigration detention in a closed environment for longer than six months has a significant, negative impact on mental health[264]

   [263] Exhibit A4.

   [264] Exhibit A1 (May 2013 report of the Commonwealth Ombudsman), p.59 [7.80].

5. The ombudsman reported on:

   (a)a study which “…identified that those detained for longer periods reportedly had a significantly larger number of both mental and physical health problems.”[265]

   (b)research which suggested that “…prolonged immigration detention can both intensify existing mental disorders, such as post-traumatic stress disorder, and can itself cause a newly identified form of disorder”.[266]

   [265] Ibid at p.60 [7.82].

   [266] Ibid p.60 [7.85].

6. According to the ombudsman, the evidence “…shows that length of time in detention is directly associated, not only with poor mental health, but also with the incidence of self-harm.”[267]

   [267] Ibid, p.62 [7.94].

7. In these circumstances, I infer that prolonging the applicant’s period of detention is likely to affect adversely his mental health, and that the longer that period is the more adverse the effect is likely to be. Consistently with this, I note the applicant’s statement to the effect that in detention no one helps and that “there is nothing here”;[268] it is a place where he feels he is dying slowly.[269] While I accept that his medical conditions can be adequately managed while in detention,[270] this is not to suggest that prolonged detention will not be adverse from a medical perspective.

   [268] G53, p.599 (Foundation House report of June 2021).

   [269] G53, p.599; G64, pp.1008 and 1012.

   [270] As advised to the Commonwealth Ombudsman on several occasions, including in April 2022: A4.

8. The applicant, who has existing mental health issues, confronts a significant further period of detention in addition to the period of over three years he has already spent in detention. The impact of this on his mental health is likely to be materially adverse.[271]

   [271] The applicant also contended that his physical health was impaired by detention and reference was made to a loss of weight experienced while in detention: see G53, p.599. The Tribunal notes, however, that the applicant was consuming products in detention directed to achieving weight loss. 

9. The applicant also submits that Australia would suffer reputational damage as a result of what is said to be the applicant’s indefinite detention.[272] The basis for that submission appears to be that such detention would constitute a breach of certain international obligations, not reflected in domestic law.[273] Given that basis, I make no finding in response to that submission.

   [272] A SFIC [22f].

   [273] A SFIC [74a]-[76]-[79].

   Conclusion

10. Absent any relevant finding in response to the applicant’s representations with respect to the consideration concerning non-refoulement obligations, I attribute no weight to the consideration in deciding whether there is another reason to revoke the visa cancellation decision.

11. I do, however, attribute weight to an associated consideration concerning the impact of prolonged detention on a person suffering mental health issues who has already been in detention for over three years.

12. This associated consideration weighs in favour of me being satisfied that there is another reason to revoke the visa cancellation decision and it does so to a significant extent, given that the consequences for the applicant are likely to be materially adverse.

    EXTENT OF IMPEDIMENTS IF REMOVED[274]

    [274] Direction 90, cl. 9.2.

13. In the circumstances, Direction 90 requires that consideration be given to the extent of any impediments that the applicant may face, if removed from Australia to Somalia, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Somalia), taking into account his age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in Somalia.

14. Removal is inherent in this consideration. What I am required to take account of are impediments to be faced by the applicant “if removed to …[his] home country.” In seeking to take this consideration into account I am unable to arrive at factual findings inconsistent with doing so. While I need not take account of a consideration which is irrelevant in the circumstances, neither party has submitted that this consideration is irrelevant (and nor was its relevance an issue the applicant was asked to address).  When taking this consideration into account the likelihood of removal is irrelevant. Removal is assumed even in circumstances where removal is (as here) unlikely.

15. The applicant would, I find, face significant impediments in establishing himself and maintaining basic living standards on his return to Somalia.

16. Maintaining basic living standards in Somalia is difficult, given the circumstances of Somali citizens generally. Maintaining basic living standards in Somalia for the applicant, however, will be especially difficult.

17. As for circumstances generally in Somalia, it is clearly not an attractive place to visit or remain.  An Australian government travel advisory issued on 2 November 2022 states quite succinctly, “ [i]f you're in Somalia, leave as soon as possible. If you decide to stay despite our advice, get professional security advice. Do not travel to Somalia… Do not travel to Somalia due to armed conflict, the ongoing very high threat of terrorist attack and kidnapping, and dangerous levels of violent crime.”[275]

    [275] See Department of Foreign Affairs and Trade, “Somalia” [Web Page, updated 2 November 2022] accessed on 8 November 2022.

18. As is clear from the advisory, violence in Somalia is endemic. In 2020, “[c]lan militias and al-Shabaab continued to commit grave abuses throughout the country.”[276] Amnesty International noted in its 2019 annual report covering Somalia that Al-Shabaab “… regularly targeted civilians and civilian infrastructure, launching indiscriminate attacks.” [277]

    [276] G66, p.1361.

    [277] G66, p.1159.

19. Most people in Somalia are poor: “Four out of five people in Somalia… live below the poverty line and 5.2 million people (out of an estimated population of 15.9 million) have been described as ‘in need’ in 2020, a 19% increase compared to 2019.”[278]

    [278] G66, p.1116 (Report prepared by the UK Home Office in November 2020 entitled Country Policy and Information Note Somalia (South and Central): Security and humanitarian situation).

20. Much of the population has difficulty in maintaining basic living standards, with “3.5 million people (22% of the total population) facing food insecurity. Access to water, sanitation, and hygiene (WASH) is limited with an estimated 2.7 million people (17% of the total population) in need of these services in 2019.”[279]

    [279] G66, p.1117.

21. The health system in Somalia is inadequate. In an article published in March 2020, reference was made to a survey in which Somalia was said to have ranked 194^th out of 195 countries in terms of health security.[280]

    [280] G66, p.1281.

22. Overall, Somalia is a difficult place in which to seek to maintain basic living standards. In the 2017 DFAT Report, Somalia was said to be ranked first of 178 countries on the 2016 Fragile States Index and seventh on the 2016 Global Terrorism Index.[281]

    [281] DFAT Report at [2.25].

23. Quite apart from circumstances generally applicable to Somali citizens, there are a number of factors that are likely to make maintenance of basic living standards in Somalia especially difficult for the applicant. Indeed, I note that the Secretary of the Somali Australian Council of Victoria in a letter of March 2022 stated his belief that the applicant would die or be killed if returned to Somalia.[282]

    [282] G68, p.1599.

24. The applicant should not face difficulties by reason of his age and he should not need to confront substantial language barriers. He may, however, confront cultural barriers given that he has not lived in Somalia since he was around eight years old.

25. There is a real risk of the applicant facing difficulties because of a perception that he has been Westernised,[283] especially as he is unlikely to have family or clan support.

    [283] It was also submitted on behalf of the applicant that he would be at risk as a Westernised returnee adhering to a liberal interpretation of Islam: G65, p.1032. The Tribunal was not, however, taken to any material before it which identified the nature of the applicant’s current adherence to his religion.

26. While it might be that “…the fact that a person has been abroad, including in the West, is not in itself important when returning to an al-Shabaab area”,[284] nevertheless, “Somalis who have spent time abroad may be identifiable and face difficulty, particularly if they do not have clan support…[but] Returnees who do not have close family or clan support face particular difficulty.”[285]

    [284] G66, p.1068.

    [285] Department of Home Affairs Report of March 2022 addressing questions concerning, amongst other things, Somalia and the position of persons who return from overseas: Department of Home Affairs, “Somalia: 2020022010020 – Women – Separated Women – Divorce – State protection – Support organisations – Clan protection – People who have lived overseas” (Online Report, 3 March 2020) Accessed on 8 November 2022.

27. This is in a context where Al-Shabaab’s “…vision for Somalia is an Islamic state free from perceived foreign, or ‘infidel’, influence. In light of this, Somalis who have spent periods in western countries for education, employment or migration reasons or are employed by international organisations can be at risk of violence from al-Shabaab.”[286]

    [286] DFAT Report [3.14].

28. The applicant has tastes and habits that may attract negative attention from Al-Shabaab.[287] The Danish Immigration Service published a report in March 2017 which focussed on the security situation in South Central Somalia.[288] Amongst other things, it is suggested in that report that Al-Shabaab selects persons to target based on three criteria; links the person has, the person’s conduct in conformity with Sharia law and acts and attitudes that can raise suspicion.[289]

    [287] As indicated earlier at [214] the applicant’s concern is that Al-Shabaab “…forces will harass, threaten, torture, beat him and, ultimately, kill him.”

    [288] G66, p.1048.

    [289] G66, p.1067.

29. The difficulty from the applicant’s perspective is that:

    (a)He has no links in Somalia. A “returnee will need relatives who are not in bad standing with al-Shabaab and who can vouch for them. If returnees are related to clans or individuals that are well regarded in al-Shabaab, they are likely to be safe. If not, he/she might face at least some initial scrutiny.”[290]

    (b)He likes to play soccer, watch soccer matches, listen to music and smoke cigarettes, activities which Al-Shabaab considers to be un-Islamic.[291]

    (c)The applicant has, in the past, engaged in conduct (not necessarily willingly) that, if disclosed (noting the applicant’s statement to the effect that he would not lie about his conduct), might be seen to be un-Islamic or otherwise in disconformity with Sharia law.[292]

    [290] G66, p.1068.

    [291] Ibid. See G66, p.1366 (United States Department of State, Country Reports on Human Rights Practices for 2020, Somalia 2020 Human Rights Report): “Al-Shabaab detained persons in areas under its control in the southern and central regions. Those detained were incarcerated under inhuman conditions for relatively minor offenses, such as smoking, having illicit content on cell phones, listening to music, watching or playing soccer, wearing a brassiere, or not wearing a hijab…”.

    [292] The conduct of concern includes the applicant’s criminal offending, the use of illicit substances and alcohol, the conduct involved in a sexual assault or assaults on him and his having engaged in heterosexual sex outside of marriage.

30. In terms of his health issues, the applicant is rightly concerned that he would be unable to obtain medication or treatment for them in Somalia.[293]  As mentioned earlier, the applicant suffers from a number of mental health issues and an intellectual disability. In the result, he has trouble remembering things[294] and, indeed, in the context of discussing impediments he would face were he to be returned to Somalia, it is submitted on his behalf that

    …the medical evidence shows that due to his mental health and intellectual disability, the Applicant was not able to work, was incapable of looking after his own health and safety, incapable of making reasonable judgments and was previous a recipient of Disability Support. If he were removed to Somalia, he would not have such support and would have difficulty accessing daily medication and treatment for his disabilities.[295]

    [293] G64, p.1011 [65]-[66].

    [294] See, for example, G53, p.599.

    [295] A SFIC [82].

31. I was not taken to and unable to locate in the material before me any current medical evidence addressing the effect on the applicant’s mental health of his removal from Australia. Nevertheless, in the absence of treatment and medication one might expect a deterioration in his health, compounding his difficulties in maintaining living standards.

32. The applicant is also likely to face difficulties by reason of his intellectual disability. People with disabilities have trouble in accessing humanitarian support, water, food, sanitation services and accommodation. They face numerous barriers as a result of being socially stigmatised.

33. In this regard, people with disabilities are said (with my emphasis) to:

    (a)“have largely been left out of humanitarian activity, or face additional barriers to accessing it. Moreover, persons with disabilities face additional risks of exploitation, abuse and discrimination by other IDPs, sch [sic] as having their assistance stolen from them. People with disabilities in Somalia are often denied access to water, food, sanitation and accommodation through a lack of inclusion in the humanitarian response”;[296]

    (b)“have been identified as a particularly marginalized and at-risk group within Somali society as a result of the numerous attitudinal, environmental and institutional barriers they face”;[297] and

    (c)“face daily human rights abuses, such as unlawful killings; violence including rape and other forms of gender-based violence; forced evictions; and lack of access to health care, education, or an adequate standard of living. Children and adults with all types of disabilities were often not included in programs aimed at supporting persons in the country, including humanitarian assistance… Without a public health infrastructure, few services existed to provide support or education for persons with mental disabilities. It was common for such persons to be chained to a tree or restrained within their homes.”[298]

    [296] G66, p.1169 (UK Home Office in November 2020 entitled Country Policy and Information Note Somalia (South and Central): Security and humanitarian situation) at [6.3.1], citing a December 2019 UN OCHA report.

    [297] Ibid at 6.3.3, citing a UN report.

    [298] G66, pp.1399-1400 (United States Department of State, Country Reports on Human Rights Practices for 2020, Somalia 2020 Human Rights Report).

34. The applicant is likely to face difficulties by reason of his clan affiliation. His clan, the Rahanweyn, is one of six clans that make up most of Somali society. It is said to be “common” for it and another of the minority clans to be looked down upon by four of the other clans.[299]

    [299] G66, p.1306.  

35. This is in a context where, in most areas of Somalia,

    … the dominant clan excluded members of other groups from effective participation in governing institutions and subjected them to discrimination in employment, judicial proceedings, and access to public services. Minority groups, often lacking armed militias, continued to be disproportionately subjected to killings, torture, rape, kidnapping for ransom, and looting of land and property with impunity by faction militias and majority clan members…”.[300]

    [300] G66, p.1400 (United States Department of State, Country Reports on Human Rights Practices for 2020, Somalia 2020 Human Rights Report).

36. The applicant is likely to face difficulties by reason of his lack of connections in Somalia. He would not have the support which friends and family provide. 

37. The applicant is likely to have difficulty in obtaining employment in Somalia and, thereby, in deriving an income to support basic living standards. He has limited work experience and, while he has completed a number of courses in prison, I suspect that he does not possess significant employable skills. The Tribunal has been told that he would seek a disability support pension were he to be released into the community, a pension for which he would only qualify if he had a continuing inability to work. Indeed, I note that the applicant submits that he would be unable to work were he to be returned to Somalia.[301] 

    [301] A SFIC [82].

    Conclusion

1. I find that this consideration weighs in favour of me being satisfied that there is another reason to revoke the visa cancellation decision, to a significant extent.

   Impact on victims[302]

   [302] Direction 90, cl 9.3.

2. In the circumstances, Direction 90 requires that consideration be given to the impact of a decision to revoke the decision to cancel the applicant’s visa, or a decision to not revoke it,[303] on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the applicant has been afforded procedural fairness.

   [303] In cl 9.3 of Direction 90, the concept employed is of a “s 501CA decision”. That section in fact only provides for one decision, a decision to revoke a visa cancellation decision. In its terms, it does not encompass a decision to not revoke a visa cancellation decision. Nevertheless, that would seem to be the intent underlying use of the concept, especially in the context of cl 9.4.2 of Direction 90 where the reference to a decision under s 501CA is clearly intended to encompass a decision not to revoke a visa cancellation decision but cf CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 at [23], where the analogous provision in the predecessor of Direction 90 was construed in a way that directed consideration only to a decision to revoke a visa cancellation decision.

3. Neither party contended and nor was it apparent on the material before me that this consideration was of relevance in this proceeding.

   Conclusion

4. I attribute no weight to this consideration in deciding whether there is another reason to revoke the visa cancellation decision. 

   Links to the Australian community, including strength, nature and duration of the Applicant’s ties to Australia and the impact on Australian business interests[304]

   [304] Direction 90, cls 9.4, 9.4.1 and 9.4.2.

5. In the circumstances, Direction 90 requires that this “other consideration” be addressed by reference to two subsidiary considerations.

6. The first concerns the strength, nature and duration of ties to Australia. The second concerns the impact on Australian business interests.

   Strength, nature and duration of ties[305]

   [305] Direction 90, cl 9.4.1.

7. As to this first subsidiary consideration, in the circumstances, it requires that regard be had to:

   (a)Any impact of a decision to revoke or not revoke the visa cancellation decision on those of the applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.[306]

   (b)The strength, duration and nature of any ties that the applicant has to the Australian community, having regard to how long he has resided in Australia and the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.[307]

   [306] Direction 90, cl 9.4.1(1).

   [307] Direction 90, cl 9.4.1(2).

8. As for the impact of a decision to revoke or not revoke the visa cancellation decision on those of the applicant’s immediate family members in Australia, on the material before me and subject to one qualification, it will have no impact. As noted earlier, the applicant is estranged from his family. They have no wish to engage with him and he respects their wishes in this regard.

9. The one qualification to this is that a decision not to revoke the visa cancellation decision would make it less likely for there to be an opportunity in the future for the family and the applicant to reconcile, especially if the applicant is removed to Somalia as a result of the decision.

10. As for the strength, duration and nature of any ties that the applicant has to the Australian community, little seems to have changed since 2007 when His Honour Judge Gullaci noted that the applicant had no support in the community.[308]

    [308] G8, p.101.

11. The applicant would appear to have no ties or links to the community, with the exception of his mentor/mentee relationship with Mr Middleton. The applicant mentioned that he has friends but he has no wish to maintain an association with them.

12. It is submitted on the applicant’s behalf that he has strong ties to the Australian community, having resided in Australia since 2003. In the case of the applicant, however, his length of residence in Australia is not determinative of the nature or strength of his ties and links to the Australian community.

13. It is put on behalf of the applicant that he has more links and ties to Australia than anywhere else, and reference is made to his application for Australian citizenship in 2012.

14. While it might be the case that the applicant’s ties to the Australian community are more extensive and stronger than his ties to any other community, this consideration does not call for a relative or comparative assessment. It calls for regard to be had to the strength, duration and nature of any ties that the applicant has to the Australian community. It does not call for an assessment involving a comparison of a person’s ties to the Australian community with those the person has to another community or communities.

    Impact on Australian business interests[309]

    [309] Direction 90, cl 9.4.2.

15. As to the second subsidiary consideration, in the circumstances, it requires that consideration be given to the impact on Australian business interests of not allowing the applicant to remain in Australia.

16. Neither party contended and nor was it apparent on the material before me that this subsidiary consideration was of relevance in this proceeding.

    Conclusion

17. I find that this consideration concerning ties to the Australian community weighs in favour of me being satisfied that there is another reason to revoke the visa cancellation decision but only to a slight extent.

    CONCLUSION AS TO OTHER REASON FOR REVOCATION

18. In considering whether there is another reason for revocation of the decision to cancel the applicant’s visa, my conclusions in relation to the various considerations to which I have had regard (including those to which Direction 90 requires that I have regard) do not point in a uniform direction.

19. In particular, in the circumstances of this matter, and ignoring those considerations which I have found not to be relevant or in relation to which I have not made findings:

    (a)weighing in favour of a conclusion that there is not another reason for revocation of the visa cancellation decision are three of the primary considerations, being the considerations concerning protection of the Australian community from criminal or other serious conduct (to a significant extent), family violence (to a slight extent), and expectations of the Australian community (to a moderate extent).

    (b)weighing in favour of a conclusion that there is another reason for revocation of the visa cancellation decision are the primary consideration as to the best interests of minor children in Australia (to a slight extent), and the other considerations concerning prolonged detention (to a significant extent), impediments to be faced by the applicant should he be removed from Australia (to a significant extent) and links to the Australian community (to a slight extent).

20. Overall, I am not satisfied that there is another reason to revoke the visa cancellation decision. In this regard, the general position under Direction 90, which has the primary considerations being given greater weight than the other considerations, is not displaced in the circumstances of this proceeding. Here, we have three of the four relevant primary considerations weighing in favour of deciding that there is not another reason to revoke the visa cancellation decision.

    Decision 

21. As I stated at the beginning of these reasons, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the relevant character test or that there is another reason why the decision to cancel his visa should be revoked.

22. I am not satisfied that the applicant passes the character test.

23. I am also not satisfied that that there is another reason why the decision to cancel his visa should be revoked.

24. Accordingly, for these reasons, I affirm the decision under review. 

I certify that the preceding 287 (two hundred and eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

........................[SGD]................................................

Associate

Dated: 15 November 2022

Dates of hearing:	3 and 4 November 2022
Counsel for the Applicant:	Georgina Costello, KC
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore