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

XMBQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 853 (13 April 2021)
Division:GENERAL DIVISION
File Number: 2019/0387
Re:XMBQ
APPLICANT

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

DECISION
Tribunal:Deputy President Britten-Jones
Date:13 April 2021
Place:Melbourne

The decision of the Tribunal is to set aside the delegate’s decision of 15 January 2019 and substitute a decision that the decision of the delegate of the Minister dated 15 December 2017 is revoked.
............................[SGD]............................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION - mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – duration of ties - low risk of further offending, risk of harm, extent of impediments and non-refoulement obligations outweigh the primary considerations of the protection and expectations of the Australian community - decision set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali v Minister for Home Affairs (2020) 169 ALD 222
DFTD v Minister for Home Affairs [2020] FCAFC 207
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 144 ALD 31
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Bacon, T, ‘No Shortcuts to Negotiating with Al-Shabaab’ Lawfare (online, 22 November 2020)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
United States Department of State, ‘Somalia 2019 International Religious Freedom Report’ June 10 2020
REASONS FOR DECISION
Deputy President Britten-Jones
13 April 2021
INTRODUCTION

This hearing arises from orders made by the Federal Court on 9 December 2019 which quashed the decision of the Tribunal made on 9 April 2019 not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).
THE DECISION TO CANCEL THE VISA
On 15 December 2017, the applicant’s Class XB Subclass 200 Refugee visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Act on character grounds due to his conviction for a sexually based offence involving a child and because he was serving a sentence of imprisonment. The applicant had held that visa since 2003.
On 10 January 2018, the applicant made representations seeking revocation of the cancellation decision. Further written representations from Refugee & Immigration Legal Centre Inc were made on 11 November 2018.
On 15 January 2019, the delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4) of the Act.
On 22 January 2019, the applicant applied to the Tribunal for review of the decision to not revoke the cancellation decision.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) of the Act is outlined in s 501(6). Relevantly, s 501(6)(e) provides that a person does not pass the character test if the person has been convicted of one or more sexually based offences involving a child.
Where a visa has been cancelled under s 501(3A) of the Act, the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[1]
[1] s 501CA(4) of the Act.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Further, the applicant’s situation is affected by s 197C and s 198(2B) of the Act. Those provisions state:
197C Australia’s non‑refoulement obligations irrelevant to removal of unlawful non‑citizens under section 198
(1)       For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2)       An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
…
198 Removal from Australia of unlawful non‑citizens
(2B)    An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a)       a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and
(b)       since the delegate’s decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and
(c)       in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i)        the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii)       the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Note:    The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).
ISSUES BEFORE THE TRIBUNAL
It is conceded that the applicant does not pass the character test prescribed under s 501(6)(e) of the Act. Therefore, the applicant cannot rely on s 501CA(4)(b)(i) of the Act in order to have the mandatory visa cancellation decision revoked.
The issue for the Tribunal to determine is whether, having regard to Ministerial Direction No. 79 (Direction 79),[2] there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[3]
[2] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
[3] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345 [38].
The applicant contends for numerous reasons that the likelihood of him offending against a member of the Australian community in any manner is, for practical purposes, low. Further, the applicant contends that the cancellation decision should be revoked because he is owed non-refoulement obligations; he has had a tragic history and most difficult life circumstances; there are severe impediments if returned to his home country of Somalia including a real risk of being tortured and/or killed; he has no meaningful connections to any other country other than Australia; and there is the real possibility of life-long detention should the cancellation decision not be revoked.
The respondent conceded that, for the purposes of this application, non-refoulement obligations are owed to the applicant on the basis of the materials provided by him in this proceeding.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is ‘to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.[4]
[4] Direction 79 at 6.1.
The guiding principles in Direction 79[5] that the Tribunal must apply in determining whether to revoke a visa cancellation include:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia; bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding…
·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
·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 have to forfeit the privilege of staying in Australia.
·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 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.
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of 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.
[5] Direction 79 at 6.3
Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:
Primary considerations:
(i)Protection of the Australian community
(ii)The best interests of minor children in Australia; and
(iii)Expectations of the Australian community;
Other considerations include (but are not limited to):
(i)International non-refoulement obligations
(ii)Strength, nature and duration of ties
(iii)Impact on Australian business interests
(iv)Impact on victims; and
(v)Extent of impediments if removed.
Protection of the Australian community – 13.1 of Direction 79
When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct –13.1.1 of Direction 79
The applicant has been convicted on five separate occasions of wilful and obscene exposure in a public place, first in 2010 and then in 2011, 2014, 2015 and 2017. He was sentenced to a term of imprisonment on three of those occasions. There have been numerous convictions for being drunk in a public place. In addition, there have been serious violent offences including against police officers and emergency workers. He has breached bail conditions and contravened suspended sentence orders. The seriousness of the offending is reflected in the custodial sentences of three months, six months and one year five months. When sentencing for the most recent offences the Magistrate said:
So, you have pleaded guilty to a range of offences before the Court involving being often drunk, lashing out at police who were trying to deal with your behaviour in the streets. In one instance, you kicked a police member in the face while he was – whilst you were being put in the police van and you’ve caused a fracture to his cheekbone and I had a victim impact statement from the police officer saying that he had to take time off work and get medical treatment for that and he has had lasting effects from that in terms of the way his vision now operates. So, he has to live with that injury for the rest of his life.
The other offences involved, on two occasions, going up to women or, on one occasion, a 13-year-old girl on a tram, and another occasion, a 29 year old woman, and masturbating in front of them and, in both cases, frightening them. So, I need to send a message that your behaviour is completely inappropriate and you’ve been before the court before on these sorts of offences and you’ve been given chances on community orders and I need to send you a message that you can’t behave this way.
The crimes of a sexual nature and of violence against government representatives or officials are viewed very seriously. I also take into account that the offending from 2010 to 2017 was relatively frequent. The cumulative effect of the offending is significant.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79
In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
(b) The likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
Nature of harm if further criminal conduct
If the applicant were to engage in further similar offending, then the nature of the harm would be very serious. The crimes of a sexual nature took place in public and frightened the unsuspecting victims. In addition, violence against those persons doing a public duty is very serious.
Likelihood of further criminal or other serious conduct
The applicant contends that the applicant does not pose an unacceptable risk of re-offending. The applicant relies upon a risk assessment and psychiatric report dated 27 May 2020 from a forensic psychiatrist, Dr Zimmerman. She assessed the applicant by video conference and provided a helpful background of the applicant before expressing some expert opinions. I adopt that part of her report as follows:
Opinion
[67] [The applicant] is a 53-year-old man with an Acquired Brain Injury, a history of alcohol dependence and of post-traumatic stress disorder (PTSD). He was born in Somalia and spent ten years in Lebanon before arriving in Australia as a refugee in 2003. His visa was cancelled because of offending and he is currently appealing the Department’s decision not to overturn the mandatory cancellation.
[68] Based on the information available to me, it appears that [the applicant] suffered severe physical and psychological trauma from his childhood years into his early adulthood. He grew up in poverty where he had to leave primary school in order to support the family by washing dishes. [the applicant]’s family fled to Mogadishu after his father had spent time in prison but inter-clan violence in the capital hit the family hard. Their home was hit by a bomb, their savings robbed, [the applicant] was assaulted and his sister kidnapped and raped. His father was injured when the bomb hit the house and a brother lost a leg. The family fled to the border and [the applicant] ended up in Lebanon where he spent about ten years as a refugee. He lost track of his family, all separated in the flight from their homeland.
[69] In Lebanon [the applicant] suffered racism and was repeatedly arrested and beaten by Lebanese police because of his illegal status in the country. He reportedly spent one week in hospital after a beaten in his abdomen left him with an infection and on another occasion he sustained damage to his inner ear after a beating that left him with a hearing impairment which is evident today. Assaults by police left [the applicant] with a head injury and resultant Acquired Brain Injury. As a result of his severe physical abuse in Lebanon, [the applicant]’s case was considered urgent by the UNHCR and he was granted a refugee visa to come to Australia when he was thirty-six in 2003.
[70] Arriving in Australia, [the applicant] had little English and suffered from the impacts of his repeated beatings and head injury. Despite reported efforts, he was unable to find work and ended up homeless, often living on the streets and drinking increasingly to cope in his circumstances. As is common in homeless people living on the streets, [the applicant] was the target of violence on more than one occasion including an assault with a metal bar that led to recurrent headaches.
[71] [the applicant]’s visa was cancelled in December 2017 because of a prison sentence for masturbating in front of a child. The Department upheld the mandatory cancellation in January 2019 and this was upheld by the AAT in April 2019.
[72] [the applicant]’s history of offending in Australia was of a minor nature initially, with convictions for public drunkenness in the context of homelessness up until he had been here for six years. At this stage he received a CCO for indecent exposure and property damage and re-offended by indecent exposure again the following year in 2011. Three years later, he was charged with indecent exposure, threat to kill and assault police when he kicked out whilst he was being moved on for drunkenness. He received a suspended sentence and had to serve six months of that sentence in 2015 – his first time in custody – because of indecent exposure in front of a child. In 2017, [the applicant] was convicted of assault police, intentionally cause injury and indecent exposure in front of a child and received a base sentence of nine months, resulting in the automatic cancellation of his visa. I note that [the applicant] has also accumulated a number of breach offences in the past. I also note that [the applicant] has had no incidents while in prison or detention.
[73] [The applicant] has a clear history of increasingly heavy alcohol abuse while surviving on the streets of Melbourne. There is no evidence of illicit substance misuse. He had no prior treatment for his alcohol dependence until he came into the prison system in 2017 when he completed courses available to him. He has now been abstinent from alcohol for approximately three years because of his incarceration/detention.
[74] [The applicant] has past diagnoses of PTSD and ABI. CAT scans show evidence of frontal and temporal scarring and neuropsychological testing shows global impairment across cognitive domains, supporting the diagnosis of an Acquired Brain Injury secondary to trauma and likely exacerbated by alcohol dependence. Repeated neuropsychological testing has revealed deficits in attention, processing speed, visuospatial and visuoconstructional ability, reasoning, problem-solving, set-shifting, self-monitoring and planning as well as problems with inflexible thinking, poor judgement and impaired insight. [The applicant]’s clinical presentation to me on interview was consistent with these findings and I support a diagnosis of an ABI secondary to head trauma and alcohol misuse.
[75] [The applicant] has been noted to express high levels of agitation and distress when interacting with clinicians – such as was evident with me – but to have little insight into his emotional state when ask direct questions such as “how are you feeling?”. In view of his disorganized state and inability to shift from the themes that were preoccupying him, it was not possible to make a formal assessment of PTSD although I note that he has experienced many episodes of life-threatening violence over his life that can trigger this disorder in vulnerable individuals.
[76] [The applicant] has a past history of alcohol dependence currently in remission in the context of detention.
[77] He presented in a significantly distressed state with evidence from collateral information that he is engaging less in activities and keeping to his room more often compared with his more engaged presentation when he first came to detention. There were symptoms of an anxious and depressive nature but no evidence of a current Major Mood Disorder.

In the context of that background, Dr Zimmerman expressed her opinion that the applicant does not pose a risk of serious violence or imminent violence and that he presents a low risk of future violence or offending using a structured professional judgement instrument as a tool. With respect to sexual offending, Dr Zimmerman was of the opinion that the applicant presents a moderate risk of future sex offending and that with appropriate intervention the risk would likely reduce to low.
Dr Zimmerman identified risk management strategies which would reduce the risk of future sexual offending. She noted that in the structured environment of prison and detention where he has abstained from any alcohol, there was no evidence of inappropriate behavior. This suggested to her that, even with his acquired brain injury, he is not at risk of sexual offending in the absence of alcohol. She referred to brain injury services and a range of services that assist people with dual problems of mental illness or disability and substance misuse problems, including HiROADS and Turning Point. In her later report of 16 March 2021, Dr Zimmerman confirms that the three areas of need in terms of reducing the likelihood of further offending were homelessness, drinking and his acquired brain injury.
The applicant has indicated a desire to engage with the necessary support services. He has abstained from alcohol for the last four years and has an understanding gained from rehabilitative programs about the negative impact that alcohol has. He used to drink so as to keep himself warm when sleeping on the streets, but he never wants to drink again and is confident that he will not. He used to keep to himself and not ask others for assistance but now he has an understanding that there are people who want to help and he wants to engage with them in the future.
The applicant referred to positive support that had been provided and is being offered to him if he were to be released. He has already engaged with Jeremie Nyetam from Jesuit Social Services who wrote on 15 March 2021 that he would maintain regular contact with the applicant upon his release in order to ensure that he engages with the appropriate professionals which he listed in the areas of mental health support, alcohol abuse support and housing. Fuad Jama gave oral evidence and a statutory declaration that his organisation, BasicNeeds Australia Inc., had experience helping African refugees and that he would develop a work plan with the applicant so that he could get housing, remain sober and engage with appropriate other services. Dahir Elmi gave oral evidence and a statutory declaration that he is a Somaliland community leader who first came across the applicant when he lived on the streets in Footscray. He said that he would involve the applicant in community activities, take him to medical appointments, stay in weekly (or more) contact with him and generally do everything he can to help him.
Dr Zimmerman was asked to comment on these proposed supports, and she said in her 16 March 2021 report:
[26] The additional material provided in regards to supports is positive in terms of the hope that [the applicant] will be supported to engage and remain engaged with necessary supports. There is evidence that a drug and alcohol service are prepared to work with him they have services in a range of areas and are prepared to be flexible if he were to be homeless. His supporters indicated that they will be available to get him to appointments such as alcohol counselling, which will be vital.
[27] Housing will be crucial to [the applicant’s] success in the future. It is pleasing to note that he will be assisted in applying for public housing and assisted with emergency accommodation in the short term. I note that ARBIAS supports a large number of clients in various housing sites via each client having an NDIS package. The sites are predominantly owned by house choices Australia and Unison housing. Such supported housing options would be ideal for the applicant and it is to be hoped that an NDIS package could be arranged promptly via the GP and a mental health plan so that this could be facilitated. I note that Mr Nyetam has specifically mentioned attempting to facilitate linking the applicant in with ARBIAS.
[28] The practical support available from Mr Elmi and Mr Jama in terms of assisting him liaise with services, get to appointments and remain engaged with community will be invaluable in minimising the chance of him drifting again into an itinerant and isolated lifestyle.
I was very impressed generally with the applicant as a witness. In particular, I consider that his stated intention to engage with support services is genuine. Further, he showed through his evidence that he has a genuine insight into his offending and how he can take steps to avoid offending in the future. He has expressed appropriate remorse. I accept his evidence that he does not wish to drink alcohol in the future and this will be made easier because he has abstained from alcohol over the last four years and he is willing to engage further with alcohol counselling services. Whilst in prison he successfully completed drug and alcohol counselling and received a certificate of completion from Caraniche dated 4 January 2018. I consider it unlikely that he will fall into the homelessness again because of the support that he has been offered and his willingness to engage with that support. His mental health conditions have improved and he has responded well to treatment. I note that Dr Zimmerman is optimistic about the necessary supports being provided to him and his engagement with them. A report from Hopkins Correctional Centre dated 7 August 2018 said there had been no incidents and that he was well-behaved, compliant and polite to staff and other prisoners. I consider that it is likely that the supports being offered will be provided and accepted by the applicant and that consequently the likelihood of reoffending is low.
Risk to the Australian community
In considering the risk to the Australian community I must have regard to, cumulatively, the nature of the harm should the applicant reoffend and the likelihood of the applicant engaging in criminal or other serious conduct. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[6] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future. This is not a case of unacceptable risk because of the rehabilitative steps already taken and because of the presence of appropriate supports available to him in the community which leads to a likelihood of a low risk of reoffending.
[6] (2014) 144 ALD 31.
Conclusion as to protection of the Australian community
The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[7] The applicant has committed serious crimes as stated above but the lay and expert evidence suggests that there is only a low risk of the applicant repeating those crimes.
[7] Direction 79 at 13.1(1).
Despite the low risk of re-offending, there remains some risk, such that the protection of the Australian community is a factor that weighs moderately in favour of not revoking the cancellation decision.
Best interests of minor children – 13.2 of Direction 79
There are no minor children affected by this decision, so this factor weighs neither for nor against revocation.
Expectations of the Australian community – 13.3 of Direction 79
In YNQY v Minister for Immigration and Border Protection,[8] Mortimer J held that the expectations of the Australian community were inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in paragraph 13.3(1) rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs.[9]
[8] [2017] FCA 1466.
[9] (2019) 272 FCR 454.
In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of Direction 79 that:
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.
The Australian community expects non-citizens to obey Australian laws while in Australia. This expectation has not been met with respect to the applicant in the past. The applicant has breached the trust that the Australian community placed in him.
The applicant came to Australia as a refugee in 2003 at 36 years of age and, accordingly, has lived much of his adult life in Australia. His acquired brain injury and history of trauma mean that he has specific needs which were not provided during his time living on the streets of Melbourne. Going to prison and detention has given him the chance to be properly assessed and for him to address his issues and seek help from the community and support services. The evidence shows that the Australian community is willing to provide this support and that he is willing to engage. In these circumstances Australians would afford a higher level of tolerance with respect to his past criminal behaviour.
Taking into account the serious nature of the offending and risk of reoffending, I find that the expectations of the Australian community weigh moderately in favour of non-revocation of the cancellation decision.
Other considerations
In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79, but these are not exhaustive.[10]
[10] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409, [86].
The applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision, in addition to, and as distinct from, his underlying claimed fear of harm. I am required to give separate and meaningful consideration to each of these representations. In this case the respondent has accepted that the applicant is owed non-refoulement obligations. Further, I am not entitled to sidestep the obligation to consider the breach of Australia’s non-refoulement obligations on the basis that ‘a protection visa application might be made and that the non-refoulment obligations and consequences of non-compliance with them might be dealt with then.’[11]
[11] Ali v Minister for Home Affairs (2020) 169 ALD 222, [101] and FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124, [45].
I will consider separately the risk of harm if returned to Somalia, but I note that the risks of harm that the applicant will face if removed are also relevant to international non-refoulement obligations and the extent of impediments if removed.
Risk of Harm
There is no dispute that the country information filed indicates that the applicant may suffer harm if he were to be returned to Somalia. I consider that it is likely that the applicant would suffer harm if returned because of the current situation in Somalia which shows that the Islamist terrorist group Al-Shabaab continues to operate as a ‘powerful hybrid organisation: governing rural areas in Somalia, terrorising Somali cities… and running a massive extortion ring that keeps the group well financed.’[12] In 2019 there were over 1200 murders attributed to the group.[13] As a Christian convert with mental illness and no clan affiliations or personal connections in Somalia, the applicant will be in the highest possible category of risk if returned.
[12] Tricia Bacon, ‘No Shortcuts to Negotiating with Al-Shabaab’ Lawfare (online, 22 November 2020) referred to at [13] of Applicant’s Submissions in Reply filed 17 March 2021.
[13] United States Department of State, ‘Somalia 2019 International Religious Freedom Report’ June 10 2020, 1.
International non-refoulement obligations
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.[14]
[14] Direction 79 at 14.1(1).
The applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision. The respondent conceded that, for the purposes of this application, non-refoulement obligations are owed to the applicant on the basis of the materials provided by him in this proceeding.
I am satisfied that non-refoulement obligations are owed. I accept the claims of the applicant that he would be subjected to serious harm, including threats to his life or liberty and ill treatment, by Somali authorities, local Somali people, Al-Shabaab or other extremist groups or clan militias, because he has no ties or support in Somalia and because he has converted from Islam to Christianity and is a person with severe mental health issues and cognitive impairments.
The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was ‘another reason’ why the original decision should be revoked.[15]
[15] Ali v Minister for Immigration and Border Protection (2020) 169 ALD 222, [28].
Consequently, I consider that Australia owes the applicant non-refoulement obligations and that if he were to be returned Australia would be in breach of those obligations.
Consequences of a decision to not revoke
I now have regard to the legal consequences of a decision to not revoke the cancellation of the applicant’s visa,[16] bearing in mind my determination that the applicant is a person in respect of whom non-refoulement obligations are owed.
[16] See Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 [61].
I find that, pursuant to s 198 of the Act, the applicant will be liable to be removed from Australia as soon as it is reasonably practicable for that to occur. I take into account that if the cancellation decision were not revoked, it would be likely that the applicant would remain in detention whilst options were considered in light of Australia’s non-refoulement policy.[17] I take into account that the applicant may apply for a protection visa and that he would remain in detention whilst that application was considered. However, there is no evidence that the applicant has applied for or is considering applying for a protection visa or that the Minister is considering exercising his personal discretion in favour of the applicant under s 195A or s 417 of the Act. Further, whilst I am not obliged to speculate on what might happen next,[18] where the Minister opposes the revocation of the cancellation of the visa on character grounds, it would seem incongruous for the Minister to effectively reverse his position and grant him a protection visa or exercise a discretion in favour of the applicant.[19]
[17] See DFTD v Minister for Home Affairs [2020] FCAFC 207, [23].
[18] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [150].
[19] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [56].
The applicant contends that should the cancellation decision not be revoked, the applicant faces the real possibility of remaining in detention for the rest of his life. I reject this contention and consider that any detention would not be indefinite[20] because of the obligation to remove him as soon as reasonably practicable. The consequence of not revoking the cancellation decision is that the applicant will be removed to Somalia as soon as it is reasonably practicable, subject to any successful protection visa application.
[20] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [86] – [98].
As to whether it would be reasonably practicable for him to be removed, the respondent referred to a DFAT Country Information Report on Somalia from 2017 which referred to a policy paper on returnees to Somalia released by the Federal government of Somalia in 2015. One stated policy was that ‘at present’ returnees in need of psychological and mental health support cannot be returned to Somalia. Another policy was that Somalia will not accept the repatriation of certain categories of offenders including radicalised people, sexual predators, and certain violent criminals. There was no evidence given as to whether these policies were implemented or whether they remain current as at today. Some doubt as to whether the policies were strictly implemented was provided by Counsel for the respondent who indicated that persons with mental health issues had been returned to Somalia in the past where that person had consented. In the absence of current information and no real evidence beyond the 2017 DFAT report, I am not in a position to find that it would not be reasonably practicable to return the applicant to Somalia if the cancellation decision is not revoked. I accept the applicant’s submission that the respondent has advanced no evidence that would definitively pose a practical impediment to removal and that the Tribunal is not required to consider this a consequence of refusal to revoke the cancellation decision.
Given that the legal consequence is that the applicant would be returned to Somalia, it is my assessment that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked.
The consideration of non-refoulement obligations and risk of harm weigh heavily in favour of revoking the cancellation.
Further, the consequence of non-compliance with Australia’s treaty obligations not only impacts the applicant, it also impacts negatively upon Australia’s reputation and standing in the global community.[21] I consider that this adds further weight in favour of revoking the cancellation decision.
[21] See Ali v Minister for Home Affairs (2020) 169 ALD 222, 252, [91].
I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including deprivation of his freedom, violence, a deterioration in his mental health condition and a lack of support if he were to return to Somalia.
Strength, nature and duration of ties
In making my decision, Direction 79 requires that I consider the following factors:
(a) how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and
(b) 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.
The applicant arrived in Australia in 2003 aged 36 years old. He has no family here and has had limited employment. For many of the 18 years he has been here, he was destitute, alone and living on the street. Consequently, he has formed very few ties with people in Australia except for those who have in recent times offered their support, such as Jeremie Nyetam from Jesuit Social Services and the Somali community leader, Dahir Elmi. It could not be said that the applicant has made positive contributions to the Australian community, but he has lived here for nearly two decades and has more connections here than any other country including his homeland of Somalia. This factor weighs in favour of revocation, but I give it limited weight.
Impact on Australian business interests

No evidence or argument was advanced with respect to any impact on Australian business interests. Consequently, this consideration neither weighs for nor against revocation of the cancellation decision.
Impact on victims
There was no evidence in relation to the impact on the victims of a decision to not revoke. Consequently, this consideration neither weighs for nor against revocation of the cancellation decision.
Extent of impediments if removed to home country
Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to his home country of Somalia in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The applicant’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The applicant fled persecution in Somalia as a young man in about 1992 and he has not returned. Violence had broken out in Somalia and many members of his family were killed. He went to Lebanon as an illegal immigrant where he suffered numerous beatings including to the head which resulted in his acquired brain injury. He suffers cognitive deficits and PTSD from the trauma he witnessed. His mental health condition was readily apparent when he gave evidence because he often found it difficult to find the right word and there were large gaps in his oral testimony when he tried to express his feelings through actions. In Somalia the conditions are horrific for persons with mental disabilities or illnesses. They are chained like prisoners and given no treatment.
The applicant has turned to Christianity since he left Somalia. During the hearing he clasped his rosary beads and other religious material including depictions of Jesus, Mary and other saints. He thanked God and raised his eyes to heaven on numerous occasions. There is no doubt he would be persecuted in Somalia for his strongly held beliefs, both by government forces and Islamic terrorist organisations such as Al-Shabaab.
Returning him to Somalia would be like sending a lamb to the slaughter. The extent of impediments that he would face upon return are extreme and could well result in his death.
This is a factor which weighs strongly in favour of revoking the cancellation decision.
Conclusion as to whether there is another reason to revoke the original decision
The primary considerations relating to the protection of the Australian community and the expectations of the Australian community weigh moderately in favour of not revoking the cancellation decision. The other considerations of risk of harm, non-refoulement, strength of ties and extent of impediments weigh heavily in favour of revocation. Primary considerations should generally be given greater weight than the other considerations, but the use of the word ‘generally’ in paragraph 8(4) of Direction 79 means that that is not always the case. Further, whilst community expectations may weigh against revocation, the community expects that it will be necessary in every case to assess the circumstances particular to the applicant in question in order to reach an evaluative assessment of whether it is appropriate to not revoke the cancellation decision. Direction 79 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.[22]
[22] FYBR v Minister for Home Affairs (2019) 272 FCR 454, [97] per Stewart J; see also [73] per Charlesworth J.
I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations to determine whether there is another reason to revoke the cancellation decision.
I have reached the conclusion that the other considerations of risk of harm, non-refoulement obligations and extent of impediments outweigh the primary considerations of the protection and expectations of the Australian community. Less weight can be given to the protection and expectations of the Australian community because of my finding that there is a low risk of reoffending. That finding is supported by the very strong evidence that the applicant is sufficiently rehabilitated and has the necessary supports in place so as to reduce the likelihood of further reoffending. The applicant committed his offending as a homeless person with mental health issues and alcohol addiction. His circumstances have now changed such that he has abstained from alcohol for four years, received treatment for his mental health issues and has received support from community leaders, providers of social services and medical providers. The overwhelming evidence indicates that these supports will continue to be provided and that the applicant will engage with them.
The low risk of reoffending in terms of protection and expectations of the Australian community must be weighed against the catastrophic consequences to the applicant if he is returned to Somalia. As I have previously stated, he would be like a lamb to the slaughter in Somalia. The country information with respect to Somalia is not in dispute nor is there a dispute that the applicant is owed non-refoulement obligations. These are factors that weigh heavily in favour of revoking the cancellation decision.
The applicant has lived in Australia for nearly two decades and has received very little support. I consider that with the support that is now available it is likely that he will not reoffend such that the risk to the Australian community of allowing him to remain in Australia is low.
Consequently, I am satisfied that there is another reason why the cancellation decision should be revoked.
The decision of the Tribunal is to set aside the delegate’s decision of 15 January 2019 and substitute a decision that the cancellation decision is revoked.

I certify that the preceding 71 (seventy -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

..............................[SGD]..........................................
Associate
Dated: 13 April 2021

Dates of hearing: 22 & 23 March 2021, 1 April 2021

Counsel for the Applicant: A. McCowan & T. Skvortsova

Solicitors for the Applicant: Refugee Legal

Advocate for the Respondent: J. Liang

Solicitors for the Respondent: Clayton Utz

[2021] AATA 853

13 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Dates of hearing:	22 & 23 March 2021, 1 April 2021
Counsel for the Applicant:	A. McCowan & T. Skvortsova
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	J. Liang
Solicitors for the Respondent:	Clayton Utz