XMBQ and Minister for Home Affairs (Migration)

[2019] AATA 785

XMBQ and Minister for Home Affairs (Migration) [2019] AATA 785 (9 April 2019)

Division:GENERAL DIVISION

File Number(s):      2019/0387

Re:XMBQ

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member

Date: 9 April 2019

Place:Melbourne

The Tribunal affirms the decision under review.

.........................[sgd]...............................................

The Hon. Matthew Groom, Senior Member

Catchwords

MIGRATION – mandatory cancellation under s 501(3A) of the Migration Act – applicant convicted of sexually based offences involving a child – applicant has a substantial criminal record – applicant fails character test – whether another reason why the mandatory cancellation should be revoked – Direction 79 – nature and seriousness of the offending – risk of reoffending linked to risk of relapse into alcohol dependency – concerns about protection of the Australian community – expectations of the Australian community – international non-refoulement obligations – applicant liable to be repatriated to Somalia – applicant faces significant impediments if removed – acquired brain injury – mental health conditions – overall balance weighs in favour of revocation – decision affirmed

Legislation

Migration Act 1958 (Cth)

Cases

BHKM v Minister for Immigration and Border Protection (Migration) [2018] AATA 3

DMH16 vMinister for Immigration and Border Protection (2017) 253 FCR 576; [2017] FCA 448
MLQP and Minister for Home Affairs (Migration) [2018] AATA 4123
PRHR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2782
QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855
Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No. 79 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Department of Foreign Affairs and Trade – DFAT Country Information Report Somalia – 13 June 2017

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

9 April 2019

INTRODUCTION

1. This is an expedited review of a decision made by a delegate of the respondent under s 501CA(4) of the Migration Act 1958 (the “Act”) not to revoke a mandatory cancellation of the applicant’s Class XB Subclass 200 Refugee visa (the “visa”).

2. The hearing in this matter was conducted on 27 and 28 March 2019. The applicant was represented by Mr Virajith Hewaarachchi of Refugee Legal and the respondent was represented by Ms Phoebe Richards of Clayton Utz.

3. In reaching its decision, the Tribunal has carefully considered the oral testimony of the applicant, an acquaintance of the applicant, Mr M, as well as all of the documentary evidence before it.

   BACKGROUND

   General background

4. The applicant is a 52-year-old man from Somalia. He left Somali in 1992 and lived in Lebanon for approximately 10 years. He was granted a Class XB Subclass 200 Refugee visa on 30 September 2003 and arrived in Australia in January 2004.

   Criminal history

5. The applicant’s offending history is summarised as follows:[1]

   [1]  Respondent’s amended Statement of Facts, Issues and Contentions.

   
   
   

Court Date	Offence	Sentence
17 May 2004 o	Before [City 1] Magistrates Court charged with: ·     [Vagrant] behave in an indecent manner	No conviction recorded. Recognizance $100 & to be of good behaviour for 6 months.
15 December 2008	Before [City 2] Magistrates Court charged with: ·      Drunk in a public place	Convicted and discharged
3 April 2009	Before [City 2] Magistrates Court charged with: ·      Drunk in a public place	Convicted and discharged
8 April 2010	Before [City 3] Magistrates Court charged with: ·     Drunk in a public place	Convicted and discharged
5 May 2010	Before [City 3] Magistrates Court charged with: ·     Wilful and obscene exposure in public (4 charges) ·     Drunk in a public place ·     Fail to answer bail (3 charges) ·     Behave in an indecent manner in a public place (2 charges) ·     Throw missile ·     Injure/danger/damage property ·     Deal with property the suspected proceeds of crime	Convicted and a community based order for 24 months
14 January 2011	Before [City 3] Magistrates Court charged with: ·     Wilful and obscene exposure in public (2 charges) ·     Indecent assault ·     Fail to answer bail	Convicted and community based order for 15 months
		7 May 2014	Before [City 3] Magistrates Court charged with: ·     Failure to comply with CBO (2 charges) ·     Fail to answer bail ·     Wilful and obscene exposure in public (2 charges) ·     Make threat to kill ·     Criminal damage (intent to damage/destroy) ·     Unlawful assault ·     Assault police (2 charges) ·     Fail to answer bail (3 charges)	·     Proven ·     Aggregate 3 months imprisonment. Sentence suspended for 12 months. ·     Aggregate 3 months imprisonment. Sentence suspended for 12 months. ·     Aggregate 3 months imprisonment. Sentence suspended for 12 months. ·     Aggregate 6 months imprisonment. Concurrent. Sentence suspended for 12 months. ·     Time served in custody, 22 days, recognised as a period of imprisonment already served under this sentence.
2 December 2015	Before [City 3] Magistrates Court charged with: ·     Contravene suspended sentence order ·     Indecent act in the presence of a child under 16 ·     Fail to answer bail ·     Assault police officer ·     Resist police officer ·     State false name when requested ·     Possess dangerous article in a public place ·     Drunk in a public place	·     Proven ·     Suspended sentence wholly restored. The restored term to be served is 6 months ·     6 months imprisonment. Concurrent ·     Fined $800 ·     Drunk in a public place – proven and dismissed under s 76 of the Sentencing Act
22 June 2017	Before [City 3] Magistrates Court charged with: ·     Assault police officer ·     Assault emergency worker on duty ·     Indecent act in the presence of a child under 16 ·     Intentionally cause injury ·     Commit indictable offence whilst on bail ·     Unlawful assault ·     Wilful and obscene exposure in public ·     Drunk in a public place (3 charges) ·     Possess cannabis (2 charges)	·     1 month imprisonment. Cumulative ·     2 months imprisonment. Period to be served concurrently is 1 month ·     9 months imprisonment. Base sentence ·     6 months imprisonment. Period to be served part concurrently is 2 months ·     1 month imprisonment. Concurrent ·     3 months imprisonment. Period to be served part concurrently is 1 month ·     On drunk in a public place – convicted and discharged ·     On possess cannabis – convicted and discharged

Cancellation decision

1. On 15 December 2017 the applicant’s visa was cancelled under s 501(3A) of the Act on the basis that he did not pass the character test under s 501(6)(e) as a result of having being convicted of a sexually based offence involving a child. The delegate was also satisfied that at the time of the decision the applicant was serving a sentence of imprisonment, on a full time basis, in a custodial institution for an offence against a law of the Commonwealth, or State or Territory of Australia.

2. The applicant was issued with a letter from the respondent inviting him to make submissions in relation to the cancellation decision. The applicant subsequently made representations under s 501CA(4)(a) of the Act seeking a revocation of the decision.

3. On 15 January 2019 a delegate of the Minister decided not to revoke the visa cancellation decision. The applicant subsequently sought a merits review of that decision, which is the subject of the application currently before the Tribunal.

   ISSUE

4. There was no issue between the parties that the applicant had made representations within the 28 days of being notified of his visa cancellation. Nor is there any dispute that the applicant does not pass the character test both under s 501(6)(e) as a result of having being convicted of a sexually based offence involving a child and also under

   
   

   s 501(6)(a) as a result of having a substantial criminal record. The Tribunal is satisfied on each of these points.

5. Therefore, the issue before the Tribunal is whether there is ‘another reason’ to revoke the cancellation decision having regard to all relevant considerations, including those set out in Part C of Direction No. 79 made under s 499 of the Act on 20 December 2018 (“Direction 79”). Direction 79 came into effect on 28 February 2019.

   CONTENTIONS AND CONSIDERATION

6. The Preamble to Direction 79 specifies a number of principles which provide a framework within which decision-makers should approach their specific task:

   (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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

   (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

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

   (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

   (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

7. In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of Direction 79 provides that the following are primary considerations:

   a) Protection of the Australian community from criminal or other serious conduct;

   b) The best interests of minor children in Australia;

   c) Expectations of the Australian community.

8. Direction 79 sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations. However, it is now well established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[2]

   Primary Considerations

   [2] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303

   The protection of the Australian community from criminal or other serious conduct

9. Paragraph 13.1(1) of Direction 79 states:

   When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

10. Paragraph 13.1(2) of Direction 79 states that decision-makers should also give consideration to:

    a) The nature and seriousness of the non-citizen’s conduct to date; and

    b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

11. The Tribunal notes that the Direction specifically states in the Principles at paragraph 6.3(3) that:

    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.

12. Moreover, at paragraph 13.1.1(1) the Direction states that:

    In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

    a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

13. The applicant’s offences include multiple offences of indecent behaviour including “behave in an indecent manner”, “wilful and obscene exposure” (multiple charges), “behave in an indecent manner in a public place” (multiple charges), “indecent assault”, and an “indecent act in the presence of a child under 16” (multiple charges).

14. Having considered all of the evidence, the Tribunal is satisfied that the applicant’s offences involving indecency include offending that must be considered very serious. This is re-enforced by the significant term of imprisonment that was imposed on the applicant for his most recent offence of “indecent act in the presence of a child under 16”. It is further reinforced by the comments of the Sentencing Magistrate who noted that the victims included a 29-year-old woman and a 13-year-old girl.

15. The applicant’s offending has also involved a number of assaults including against an emergency worker and on more than one occasion a police officer. In his most recent offending the Sentencing Magistrate noted in their sentencing remarks that one of the assaults against a police officer had resulted in a fracturing of the police officer’s cheekbone which is likely to have an impact on his vision for the rest of his life.

16. As noted earlier in these reasons, in considering the nature and seriousness of the applicant’s criminal offending, Direction 79 requires the Tribunal to have regard to the principle that violent crimes are to be viewed very seriously. The Direction also requires the Tribunal to have regard to the principle that:

    …crimes committed against vulnerable members of the community (such as the elderly or the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

17. The Tribunal is satisfied that police officers and emergency workers should be considered “government representatives or officials” for the purpose of the Direction.

18. Having considered all of the evidence, the Tribunal is satisfied that the applicant’s assault offences include offending that must be considered very serious.

19. The applicant has also committed a number of other offences that could be said to involve an element of violence including intentionally cause injury, unlawful assault and criminal damage (intent to damage/destroy). Again, the Tribunal is satisfied that these types of offences are serious.

20. In considering the nature and seriousness of the applicant’s offending Direction 79 requires the Tribunal to have regard to the frequency of the offending, whether there is any trend of increasing seriousness and the cumulative effect of repeated offending.

21. The Tribunal is satisfied that the applicant has a very significant criminal record that does involve a trend of increasing seriousness and is mindful of the cumulative effect of his repeated offending. The applicant’s earlier offending was substantially limited to public drunkenness with some incidents involving wilful exposure. His more recent offending involved a serious assault on a police officer and serious acts of indecency including in the presence of a 13-year-old child. This conclusion is further supported by the sentencing remarks for the applicant’s most recent offences, where the Sentencing Magistrate noted on more than one occasion in her remarks that the applicant had engaged in repeat offending.

22. At various times through his oral evidence the applicant sought to present his heavy drinking, mental health, difficult personal circumstances and acquired brain injury as important context in properly understanding his offending. The Tribunal accepts that the applicant has for the majority of his time living in Australia been a homeless man with a serious alcohol dependency who in most cases if not all cases was intoxicated at the time of his offending. The Tribunal also accepts that the applicant has an acquired brain injury as a result of serious assaults against him both in Lebanon prior to his arrival in Australia and also further assaults in Australia which have caused significant trauma for the applicant. The Tribunal also accepts that the applicant’s acquired brain injury is associated with a significant level of cognitive impairment. There is also medical evidence that the applicant suffers post-traumatic stress disorder.

23. The Tribunal accepts that these facts are relevant context in properly understanding the applicant’s conduct. There is no doubt that the applicant has suffered significant trauma and deals with very difficult personal circumstances and health challenges. However the Tribunal notes that the Courts have not accepted these factors as an excuse for the applicant’s offending. Similarly, the Tribunal is not satisfied that these factors can take away from the serious nature of the offending. Notwithstanding these factors, the applicant has been convicted of very serious offences which have no doubt had a very significant impact on his victims.

24. The Tribunal acknowledges that for the purposes of this decision it cannot contradict or go behind a conviction and examine the facts upon which it is based. That, of course is not to say that an applicant cannot present to the Tribunal matters that give context to a conviction. However, the Tribunal accepts the applicant’s criminal record as an accurate record of his offending and there is no question in the mind of the Tribunal that the record includes criminal offending of a very serious nature.

25. Having determined that the applicant’s offending is very serious, the Tribunal must then make an assessment of the risk of the applicant reoffending and the nature of the harm the community could potentially be exposed to should he reoffend.

26. A number of contentions were put to the Tribunal on behalf of the applicant to support a conclusion that the risk of the applicant reoffending was low. They may be summarised as follows:

    (a)the applicant is remorseful and has developed insight into his offending;

    (b)the applicant’s mental health conditions have improved and are now being well managed as a result of receiving treatment that he is responsive to;

    (c)the applicant has a strong desire to continue treatment for his conditions and secure a better life for himself;

    (d)as a result of his time in prison and detention, the applicant has now had a prolonged period of abstinence from alcohol and also the opportunity for treatment for his conditions and the benefit of good sleep and three meals a day;

    (e)the applicant now understands the consequences of not taking his medication and of alcohol consumption;

    (f)the applicant is now 52 years of age and therefore at a lower risk of offending;

    (g)the applicant has been of good behaviour during his time in prison and at various detention centres;

    (h)the applicant has developed a strong connection to Christianity and a desire to adhere to a strict moral code consistent with his religious beliefs;

    (i)if the applicant is released into the community he will be able to access various support programs, support services and case work services suitable for a person with his complex needs, and the applicant has a desire to engage with such services;

    (j)during his time in custody the applicant has completed a number of drug and alcohol programs such as VACRO ReLink and other self-improvement programs; and

    (k)the applicant has been offered real and meaningful support on his release from members of the Somali community.

1. The respondent put a number of contentions to the Tribunal to support a conclusion that the risk of the applicant reoffending was moderate to high. Those contentions can be summarised as follows:

   (a)the applicant’s criminal history is serious and has involved a consistent disregard for Australian laws;

   (b)despite being given the opportunity of multiple non-custodial sentences in respect of his early offending, he continued to reoffend;

   (c)the offences the applicant has been found guilty of have displayed a rapid escalation of seriousness, culminating in two offences of “indecent act in the presence of a child under 16”, among other serious offences;

   (d)The applicant has previously been given the benefit of support programs and services and despite the availability of such services has relapsed back into alcohol dependency and offending; and

   (e)the applicant’s past offending is the best and perhaps only real indicator of the kind of conduct he may engage in in the future.

2. Further, the respondent submitted that the seriousness of the applicant’s past offending is an important consideration in assessing the extent of harm posed when considering the risk of recidivism. In that context the respondent contended that given the serious nature of the applicant’s prior offending, the nature of the harm to individuals of the Australian community should the applicant engage in further similar conduct is plainly serious and includes the risk of serious injury and physical harm, psychological injury, damage to property and financial loss. Against that backdrop the respondent contended that the risk of harm to the Australian community was unacceptable.

3. In his oral evidence the applicant demonstrated to the Tribunal a basic level of understanding of the personal circumstances that led to his severe alcohol dependency. He told the Tribunal that while he had previously been in the habit of drinking beer and wine on a regular basis, in around 2009 he began to drink far more heavily including substantially larger quantities of wine and also Jim Beam. He stated that the reason for his more intense drinking was that it helped him sleep and made him feel warm in winter when it was cold at night. He told the Tribunal that he had always slept on the streets and that the only time he has slept on a bed and had regular meals has been while in custody or immigration detention.

4. When pressed on what he thought about his offending, the applicant acknowledged that it was “very bad” and in his written statement described his offending as “awful” stating that “there is no excuse”. However in giving his oral testimony, the applicant appeared reluctant to talk in any detail about the offences and was quick to deflect personal responsibility telling the Tribunal that “it was my sickness and I was drunk. I didn’t know what I was doing”. While in his written statement the applicant did acknowledge that his offences included masturbating in public, the Tribunal considers that in his oral testimony, the applicant sought to downplay the true nature of some of his indecency offences telling the Tribunal that he had developed a skin allergy as a result of not showering frequently, that he didn’t know what he was doing and that he had not intended to offend anyone.

5. The Tribunal accepts that the applicant’s memory of his offending is very likely to be impacted by both his intoxication at the time of his offending and also his acquired brain injury. His capacity to address questions may also have been impacted by his associated cognitive impairment although the applicant did appear to clearly understand the questions being put to him. Notwithstanding these considerations, having listened to the applicant’s evidence very carefully the Tribunal was left with the impression that the applicant was reluctant to genuinely confront the true nature of his offending. The Tribunal certainly rejects any suggestion that at least the more serious of his indecent offending was not of an overt sexual nature. His more recent indecent offences clearly did have a sexual element and were no doubt highly offensive and frightening for his victims, particularly his child victims.

6. For these reasons the Tribunal is satisfied that the applicant demonstrated only a limited degree of remorse and insight into his offending. The Tribunal draws this conclusion while acknowledging the fact that the applicant has undertaken a number of drug and alcohol programs during his time in custody to increase his understanding of alcohol dependency and its relevance to his offending.

7. The Tribunal accepts that during his time in custody the applicant has an established a reputation for good behaviour.

8. The Tribunal makes no particular observation regarding the applicant’s conversion to Christianity other than to say that it accepts it as genuine.

9. Having considered all of the evidence the Tribunal is satisfied that the risk of the applicant reoffending is inextricably linked to the risk of him returning to a state of homelessness and relapsing back into alcohol dependency. In assessing this risk the Tribunal notes the following:

   (a)The applicant is a 52-year-old man who on his own evidence has suffered from serious alcohol dependency for a significant portion of his adult life and who has struggled to function in the community at even a basic level. For most of the time he has lived in Australia he has been homeless, unable to undertake any substantive work of any kind and unable to source proper food on a regular basis. He also continues to suffer the effects of acquired brain injury, has impaired cognitive functioning and suffers from mental health conditions. The challenges the applicant will face if released back into the community are very significant. Having considered all of the evidence, including hearing from the applicant himself, the Tribunal is not satisfied that the applicant has a sufficient understanding of the challenges he will face upon his release to have any level of confidence he will be able to meet those challenges and be able to manage his personal circumstances effectively.

   (b)The Tribunal acknowledges that the applicant has had the benefit of a significant period of abstinence from alcohol while in custody and during that time he has taken advantage of the opportunity presented to him to adhere to medication prescriptions, get treatment for his conditions, get better sleep and eat three meals a day which collectively has had a significant positive impact on his overall health, including his mental health. However, while the applicant has had the benefit of a significant period of abstinence from alcohol during his time in custody, his capacity to maintain that abstinence has not been tested in the community. It is important to note in this context that the applicant has had a previous period of abstinence while in custody and  yet following his release, the applicant relapsed back into serious alcohol abuse.

   (c)The applicant does not have the benefit of family or close friend support networks that could potentially provide the type of support that would assist him in maximising his prospects of avoiding relapse. This is a particularly important factor given the applicant’s broader personal circumstances. While there was evidence of some support on offer from an acquaintance, Mr M, having heard from Mr M directly the Tribunal was left with the distinct impression that the support being offered, while generous, was more in the form of an offer to facilitate social engagement within the wider Somali community rather than a personal commitment on the part of Mr M to do what was necessary to ensure that the applicant avoided relapse. Moreover, while there were a number of other references from Mr M, the representative for the applicant and also the applicant himself of support being available from another acquaintance, Mr A, as well as members of the broader Somali community, there was no direct evidence from either Mr A or any members of the community in relation to the extent of such support.

   (d)The Tribunal acknowledges that there are various support groups and services that would be available to assist the applicant in managing his challenges on release and avoiding a relapse back into alcohol dependency. However, the Tribunal remains concerned that the likelihood of the applicant taking up and maintaining the benefit of such support groups and services is very much linked to the extent of the applicant’s immediate personal support networks which the Tribunal considers to be limited.

   (e)While acknowledging that the applicant has undertaken steps to develop insight into his offending, the Tribunal was left with the distinct impression that the applicant’s level of insight remains limited. At various points in his evidence the applicant told the Tribunal that he believed there was no risk of him returning to alcohol dependency. He told the Tribunal that he did not like alcohol anymore and that the thought of it made him feel physically sick. The Tribunal was particularly concerned about the failure of the applicant to describe in a realistic way the extent of the challenges he would face in adjusting to life back in the community and in avoiding a return to homelessness and a relapse back into alcohol dependency.  

   (f)The applicant has previously been incarcerated and notwithstanding the availability of support groups and services has once again returned to the streets and relapsed back into alcohol dependency and reoffended. The Tribunal acknowledges that on previous occasions there may have been a more limited awareness amongst such support services and the wider Somali community regarding the applicant’s complex health needs, however, again the Tribunal is concerned that the prospect of the applicant taking up and maintaining the support offered by such services is dependent to some degree on the existence of other close personal supports and that for the reasons already stated, the Tribunal considers those closer personal supports to be limited.

10. For these reasons, notwithstanding the applicant’s age and his stated determination to avoid alcohol, to not reoffend to avoid a risk of future deportation and to not let people down, the Tribunal cannot be satisfied that the risk of the applicant returning to a state of homelessness and relapsing back into alcohol dependency is minimal or trivial. To the contrary, having considered all of the evidence including having heard the applicant’s oral testimony, the Tribunal is satisfied that the risk of him relapsing is significant and that were he to relapse into alcohol dependency, his risk of reoffending is high. The Tribunal is satisfied that the applicant’s risk of reoffending is sufficient to raise very serious concerns about the safety of the Australian community. Should he reoffend, based on his past conduct and all of the evidence before it, the Tribunal is satisfied that it is likely that the types of offending behaviours the applicant has previously engaged in would be repeated. This has the potential to cause very significant harm to members of the Australian community including women and children, and also police officers, emergency workers and members of the broader public. The Tribunal is satisfied that this represents an unacceptable risk of harm to the Australian community.

11. For these reasons, the protection of the Australian community weighs very heavily in favour of not revoking the mandatory cancellation of the visa.

    The best interests of minor children in Australia

12. There was no evidence before the Tribunal of any minor children in Australia relevant to this aspect of the Tribunal’s consideration. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.

    Expectations of the Australian community

13. Paragraph 13.3(1) of Direction 79 provides:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision‑makers should have due regard to the Government’s views in this respect.

14. The Tribunal acknowledges the Federal Court decision in YNQY v Minister for Immigration and Border Protection[3], which held that this consideration is inextricably linked to the other primary considerations regarding the protection of the Australian community.

    [3] [2017] FCA 1466

15. The Tribunal accepts that in light of the findings above relating to a significant risk of reoffending and an unacceptable risk of future harm, the Australian community would expect that the mandatory cancellation of the applicant’s visa not be revoked.

16. The Australian community has a low tolerance for the type of offending perpetrated by the applicant. That is particularly true of sexual offences involving women and children and also violent offences involving emergency workers and police officers. Given the nature and seriousness of the applicant’s offending, the Australian community would expect that this would weigh heavily in favour of not revoking the mandatory cancellation of the visa.

17. The Australian community would expect that consideration be given to the difficult personal circumstances experienced by the applicant over the course of his life including his alcohol dependency, homelessness, mental health conditions, acquired brain injury and cognitive impairment.

18. The Australian community would also expect a decision-maker to have regard to the potential risks and impediments to the applicant should he be forcibly returned to Somalia. They would also expect a decision-maker to recognise the consequence of a decision not to revoke the mandatory cancellation of the applicant’s visa in light of Australia’s international obligations of protection towards him.

19. However, the Tribunal is satisfied that the nature and seriousness of the applicant’s offending, the significant risk of him reoffending and the unacceptable risk of harm that could be caused to the community is such that despite these issues, the Australian community would expect that the mandatory cancellation of the applicant’s visa not be revoked.

20. For these reasons, the expectations of the Australian community weighs heavily in favour of not revoking the mandatory cancellation of the visa.

    Other Considerations

    Non-refoulement obligations

1. The Direction relevantly states at paragraph 14.1:

   (1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

   (2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

   (3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa,  or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled) .

   (4) Where a non-citizen makes claims which may give rise to international non‑refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

   (5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).

   (6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

2. There is no dispute between the parties on the existence of international non-refoulement obligations in respect of the applicant. The Tribunal accepts the parties’ contention in this respect. In doing so the Tribunal accepts that there is a real risk the applicant would suffer serious harm if he were to be forcibly returned to Somalia particularly having regard to his:

   (a)conversion to Christianity;

   (b)acquired brain injury, associated cognitive impairment and mental health conditions;

   (c)absence of clan ties; and

   (d)the length of time he has lived in a Western country.

3. Both parties also conceded that the mere existence of international non-refoulement obligations did not, as a matter of law, preclude the Tribunal from affirming the decision but rather it was a matter of weighing the various considerations in accordance with the Direction. Again, the Tribunal accepts this position.

4. The parties did differ in their contentions on exactly how the Tribunal should apply Direction 79 in light of the Federal Court’s interpretation of s 197C of the Act as outlined in DMH16 vMinister for Immigration and Border Protection[4] (“DHM16”).

   [4] (2017) 253 FCR 576; [2017] FCA 448.

5. It was acknowledged by both parties that s 499 of the Act requires the Tribunal apply the Direction only so far as it is consistent with the Act.[5]

   [5] Section 499(1) and (2) of the Act.

6. The respondent submitted Direction 79 should be applied either by substituting ‘will’ for ‘might’ in paragraph 14.1(2) or, alternatively, excluding the final sentence of paragraph 14.1(2) and also excluding the final sentence of paragraph 14.1(6) on the basis that the offending sentences were statements inconsistent with the Act and therefore beyond power.. The respondent contends that the remainder of paragraph 14.1 of Direction 79 is consistent with the Act, within power and should be applied.

7. The representative for the applicant argued that the Tribunal did not have the power to rewrite the Direction but acknowledged that it should not apply the Direction to the extent inconsistent with the Act. The representative for the applicant did concede at the hearing however, that the Tribunal had the power to affirm the decision under review but not because of the Direction, but rather because that power existed under the Act itself. In making the concession, the applicant’s representative emphasised that notwithstanding the legal power to affirm the decision, the applicant’s position was that great weight should be given to the international non-refoulement consideration because of the extreme consequences that could flow to the applicant if he were to be returned to Somalia.

1. Having considered the submissions, the Tribunal accepts that paragraph 14.1 of Direction 79 should be applied by the Tribunal by excluding the final sentence of paragraph 14.1(2) and also excluding the final sentence of paragraph 14.1(6) for the reasons put by the respondent. The Tribunal notes the consistency of this approach with that taken previously by this Tribunal in applying DMH16 in the context of the previous Direction 65 including in PRHR and Minister for Immigration and Border Protection (Migration)[6], BHKM v Minister for Immigration and Border Protection (Migration)[7] and QKVH and Minister for Home Affairs (Migration)[8].

   [6] [2017] AATA 2782

   [7] [2018] AATA 3.

   [8] [2018] AATA 1855.

2. No evidence was submitted to the Tribunal to the effect that there was an impediment that would mean it was presently not reasonably practicable to repatriate the applicant to Somalia should the mandatory cancellation decision not be revoked.

3. This presents a set of circumstances that are similar to those previously considered by this Tribunal in MLQP and Minister for Home Affairs (Migration)[9]. That matter involved the potential return of an Afghani national who was owed international non-refoulement obligations and where there was no evidence before the Tribunal of an impediment that would render it not reasonably practicable to repatriate. As this Tribunal noted in MLQP and Minister for Home Affairs[10]:

   Therefore, in considering this matter the Tribunal must assume that if it were to affirm the decision to refuse the applicant’s visa, the applicant would be forcibly repatriated back to Afghanistan subject only to the Minister exercising a non-compellable discretionary power under the Act. Australia’s non-refoulement obligations would be irrelevant to the duty to remove the applicant under the Act.[11] The respondent confirmed the Government’s stated policy position of ensuring that its protection obligations are met. It is through the exercise of the Minister’s discretion that the Government is able to achieve that policy outcome. However, it would be inappropriate for this Tribunal to make any assumption about the future exercise of the Minister’s non-compellable discretion notwithstanding the existence of such a policy. Certainly no evidence was presented to the Tribunal about the likely future exercise of the discretion.

   [9] [2018] AATA 4123

   [10] Ibid at [97]

   [11] Section 197C of the Act and DMH16, op cit.

4. The Tribunal adopts the same reasoning in the present matter. If the mandatory cancellation decision is not revoked then it must be assumed that the applicant would be liable to be forcibly repatriated back to Somalia as soon as reasonably practicable. While it remains the stated policy position of the Australian Government that it will ensure its protection obligations are met and there remains a Ministerial discretion which could enable the achievement of this outcome, it would be inappropriate for the Tribunal to make an assumption about the future exercise of such a non-compellable discretion.    Therefore, in the present circumstances, the Tribunal must give consideration to the fact that the legal consequence of a decision not to revoke the mandatory cancellation decision would be that the applicant is liable to be forcibly repatriated back to Somalia as soon as reasonably practicable in breach of Australia’s international protection obligations. This must weigh very heavily in favour of revocation of the mandatory cancellation decision.

5. For these reasons, the non-refoulement consideration weighs heavily in favour of revocation of the mandatory cancellation of the applicant’s visa.

   Strength, nature and duration of ties

6. The applicant has no family in Australia.

7. There was very little evidence of the strength, nature and duration of ties to the Australian community. While the applicant has lived in Australia since 2004 there is no evidence he has ever undertaken substantive work or otherwise engaged in a substantive way in the life of the community. The evidence was that for the majority of his time in Australia the applicant has been a homeless alcoholic living on the streets.

8. For these reasons, the Tribunal gives this consideration limited weight.

   Impact on Australian business interests

9. There is no evidence that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.

   Impact on victims

10. There was no evidence before the Tribunal of the impact revocation of the cancellation of the applicant’s visa would have on victims of his past offending. The Tribunal therefore places limited weight on this consideration.

    Extent of impediments if removed

11. There was evidence before the Tribunal of significant impediments that the applicant is likely to face if he is returned to Somalia as well as serious threats to his personal safety.

12. The Tribunal accepts that given the applicant’s extended absence from the country, his age, religion, health concerns including his acquired brain injury, slurred speech, cognitive impairment and mental health conditions, the difficulties he may face in seeking to avoid relapse into alcohol dependency, the absence of close family or clan ties, and the political unrest and absence of reliable health and social services in Somalia, would together make a return to Somalia extremely challenging for the applicant.

13. The Tribunal notes in particular the evidence of absence of clan ties and acknowledges the 2017 DFAT Country Information Report on Somalia (the “Country Report”) which states that:

    Leadership, security, governance, the justice system and access to credit, jobs and resources all revolve around clan affiliations.

14. With respect to the availability of health services in Somalia and in particular for the mentally ill, the Country Report states that:

    In practice, there is no functioning national health system and access to healthcare services is severely limited.

15. The Tribunal accepts that for these reasons there is a real risk of serious harm to the applicant should he be forcibly returned to Somalia which could potentially extend to torture or a risk to his life.

16. For these reasons the Tribunal finds that this consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.

    Other

17. Having reviewed the material before it, the Tribunal is satisfied that there are no other considerations relevant to deciding whether or not to revoke the mandatory cancellation of the applicant’s visa.

    CONCLUSION

18. The Tribunal is satisfied that the applicant does not pass the character test set out in s 501(6) of the Act. Therefore, the Tribunal is required to exercise the discretion in s 501(1) of the Act in accordance with Direction 79 – Part C. The Tribunal has carefully assessed each of the considerations of Direction 79 as set out above.

19. The Tribunal recognises the serious nature of the applicant’s prior offending. The Tribunal acknowledges that there remains a significant and unacceptable risk of future harm to the Australian community should the applicant be released back into the community. However, this needs to be weighed alongside all of the other relevant considerations including the expectations of the Australian community, the existence of international non-refoulement obligations and the legal consequences of a decision to affirm, and also the significant threats and challenges the applicant is likely to face were he to return to Somalia.

20. During the hearing the representative for the applicant submitted that in weighing the relevant considerations in this matter, careful regard should be had to the Australian Government’s stated policy position of no forcible return in breach of its international non-refoulement obligations. He submitted that in exercising discretionary decision-making, the Tribunal should be minded to do so in a manner that is consistent with the dictates of good government and in the national interest. The applicant’s legal representative argued that the legal consequence of affirming the decision under review would be that the applicant is liable to be returned to Somalia in breach of Australia’s international non-refoulement obligations and that to do so would be inconsistent with good government and against the national interest. Further, he argued that in light of the legal consequence that would flow from a decision to affirm, the only decision that could ensure consistency with the Australian Government’s stated policy position and be consistent with good government and the national interest is to revoke the mandatory cancellation of the applicant’s visa.

21. While acknowledging the point made by the applicant’s representative, the Tribunal does not accept that a revocation of the mandatory cancellation is the only decision consistent with good government and the national interest. A decision that facilitates the Australian Government’s policy commitment to the protection of the Australian community from unacceptable harm is also consistent with good government and the national interest. There is no avoiding the task before the Tribunal in applying the Direction, and that is to weigh the relevant considerations and to make a judgment about what it considers the correct or preferable decision to be. Having done so very carefully and having regard to the unacceptable risk of harm to the Australian community, the Tribunal is satisfied that in all of the circumstances of this case, the correct or preferable decision is to not revoke the mandatory cancellation of the applicant’s visa.

    DECISION

22. The Tribunal affirms decision under review.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of The Hon Matthew Groom, Senior Member

.....................[sgd]..................................

Associate

Dated: 9 April 2019

Date of hearing:	27 & 28 March 2019
Advocate for the Applicant:	Mr Virajith Hewaarachchi
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	Ms Phoebe Richards
Solicitors for the Respondent:	Clayton Utz