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Tribunal: Deputy President James Constance

The applicant was a 29 year old citizen of Somalia who held a Refugee and Humanitarian visa after he migrated to Australia as a 14 year old. The applicant’s parents were killed when he was young and he was taken to a Refugee Camp in Kenya, where he spent nine years. Since his migration to Australia he has been convicted of many criminal offences including assault, burglary and obstructing police officers. Many of the offences committed by the applicant were in part a result of his problems with drugs and alcohol. All up, the applicant was sentenced to more than three years in prison.

After the applicant’s last conviction on 2 June 2017, a delegate of the Minister for Home Affairs cancelled his visa.

The Minister for Home Affairs (or a delegate) must cancel a person’s visa if they do not pass the character test because they have a substantial criminal record and they are serving a sentence of imprisonment.[1] A person sentenced to a year or more imprisonment is classified as having a “substantial criminal record.”[2] The applicant had a “substantial criminal record” because he had been sentenced to more than a year in prison and therefore he did not pass the character test. He was serving a sentence if imprisonment and the delegate cancelled his visa.

The visa cancellation can be revoked if the decision-maker is satisfied there is a reason to do so[3] after considering a Ministerial Direction provided by the Minister of Immigration and Border Protection (now Minister for Home Affairs).[4] The Direction guides the decision-maker in determining if there is a reason to revoke the cancellation of the visa with a set of considerations that must be taken into account. These are divided into “primary” and “other” considerations.

The applicant told the AAT he had been successfully rehabilitated and he would not re-offend. He said that he had not had any alcohol or illegal drugs in a year. He also claimed that there was nothing for him in Somalia and that if returned he would die or end up in the Kakuma Refugee Camp in Kenya.

The first “primary” consideration is the protection of the Australian community. The AAT said the applicant’s conduct was extremely serious and there was a significant risk the applicant would re-offend. The AAT concluded that the need to protect the Australian community from this kind of serious misconduct weighed heavily in favour of not revoking the cancellation of the applicant’s visa.

The other relevant “primary” consideration was the expectations of the Australian community. The AAT stated that it was very difficult to assess the expectations of the Australian community in circumstances such as this. The AAT acknowledged that there would be differing views on if the applicant should be able to continue to enjoy the privilege of remaining in Australia. The AAT concluded that the Australian community would expect that the decision to cancel the applicant’s visa should not be revoked.

The “other” consideration that had the largest impact on the AAT’s decision was Australia’s international non-refoulement obligation, which is a promise not to return a person to a place where they may be persecuted.[5] The AAT discussed the application of this obligation in these circumstances compared to circumstances when a person has applied for a protection visa in Australia.[6]

The applicant said that the prospect of being deported to Somalia scared him, that it was not safe when he lived there, and that he believes that the conditions there had become worse. The AAT was satisfied that if the applicant returned to Somalia there was a significant risk that he will suffer physical and/or mental harm. This consideration weighed in favour of revoking the visa cancellation. The AAT also found that the best interests of the applicant’s nephew weighed in favour of revoking the cancellation of the applicant’s visa.

The AAT balanced the reasons for and against revoking the cancellation of the visa and decided to affirm the Department’s decision, which means the decision was not changed.

Read the full written decision on AustLII.



[1] Section 501(3A) of the Migration Act 1958 (Cth).

[2] Section 501(7)(c) of the Migration Act 1958 (Cth).

[3] Section 501CA of the Migration Act 1958 (Cth).

[6] See paragraphs 73 – 83 of the full written decision.