Written reasons for this decision will be provided within a reasonable time hereof.

MIGRATION - mandatory cancellation of visa - whether 'another reason' for cancellation to be revoked - applicant a citizen of Eritrea - applicant has unresolved psychological trauma and substance-abuse problems - applicant guilty of serious violent offences - impediments on removal - possible indefinite conscription in Eritrean army described in DFAT report as amounting to 'enslavement' - alternative scenario of ongoing immigration detention - preferable decision on either hypothesis is revocation of visa cancellation - decision under review set aside and substituted

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth)

AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205; (2019) 168 ALD 331

Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33

Mohamedali and Minister for Immigration and Citizenship [2025] ARTA 1232

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)

1. On 4 November 2025, I delivered my decision in this matter. I now publish my statement of reasons for the decision.
2. This is an application by Mr Samer Mohamed seeking a review of a decision of the respondent's delegate's dated 11 August 2025.[1] By this decision, the delegate declined to revoke the cancellation of Mr Mohamed's visa,[2] which had taken place earlier, and mandatorily so, under s 501(3A) of the Migration Act 1958 (Cth) ('the Act') following Mr Mohamed's conviction and gaoling in respect of serious offending, which I shall describe in due course.
3. Mr Mohamed made a timely application for an internal review of the cancellation decision. The review delegate had two questions to address under s 501CA(4)(b) of the Act. The first was whether Mr Mohamed passed the so-called 'character test' as defined under s 501 of the Act. In light of his conviction and gaoling, Mr Mohamed could not pass this test and the review delegate's decision in this regard was clearly correct.[3] The second question that arose given the negative answer to the first question was whether there was 'another reason' − that is, a reason other than Mr Mohamed passing the character test − for the visa cancellation to be revoked. In this regard, the review delegate was obliged to apply Direction no. 110[4] ('the Direction') issued under s 499 of the Act.
4. Having applied the Direction, the review delegate decided that the cancellation decision should not be revoked, and the delegate formally concluded that there was not 'another reason' for the cancellation to be revoked under s 501CA(4)(b)(ii).

1. I must address the same two questions in my review. I have already indicated that the delegate decided the first question correctly. In respect of the second question, I make the following prefatory remarks.[5] In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate's decision for error but reaches the correct or preferable decision on the evidence adduced before it.[6] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the review delegate's reasons if that is the correct or preferable decision on the evidence before it. Equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the review delegate's reasons if that is the correct or preferable decision on the evidence before it.

1. I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr Mohamed's visa be revoked. I now set out the background facts and then my reasons for this conclusion.

1. Mr Mohamed was born in October 1995 and was, therefore, 30 years of age at the time of the hearing before me. He was born in Eritrea and came to Australia in 2009, aged 14. He had earlier left Eritrea aged five to six years, he said, and lived in a Sudanese camp before coming to Australia in 2009. I accept that evidence. He has a number of siblings: a twin brother and two sisters. They are living in Adelaide as is his mother. Mr Mohamed's father died when he was very young. Both his sisters are married but his brother is not. His brother lives with his mother. His sisters have a number of children.
2. Mr Mohamed gave evidence that he arrived in Australia with a maternal aunt and her husband. He lived with them for a period of years until moving into separate accommodation, at which point his older sister assumed responsibility for his care. His mother arrived at some later point. I accept this evidence.
3. Mr Mohamed attended school in Australia and completed year 11 successfully. He started but did not complete his year 12 qualification. He said he left school in 2014 or 2015, which would have made him approximately 19 years of age at that point in his life. He re-enrolled in a 'foundation course', which he described as a university preparatory course for those who have not successfully completed year 12. He said that he did not graduate from this course. He has had varied employment, but it has not proved to be a stabilising factor in his life.
4. I turn now to consider Mr Mohamed's criminal history. His criminal record was before me in evidence.[7] His first appearances in the court system took place in early 2015. On 16 February 2015 (i.e., when he was just 19 years of age), he appeared in the Adelaide Magistrates Court. A number of offences were dealt with on that occasion. It is clear that three of the four offences were not considered to be particularly serious because they did not result in a conviction,[8] and I need not deal with them further. A fourth offence dealt with on that occasion did result in a conviction, and it involved an indecent assault upon a person (basic offence). This resulted in the imposition of a good behaviour bond of 18 months secured by a sum of $200.
5. On 9 September 2019, Mr Mohamed was found to have breached bail and a sum of $500 was forfeited. On 31 October 2019, he appeared for failing to comply with a bail agreement on two occasions. This offending resulted in a conviction, but the charge was otherwise dismissed without penalty.
6. On 21 February 2020, Mr Mohamed was convicted in the Port Adelaide Magistrates Court of possessing equipment to use with a controlled drug (not being cannabis).[9] He was convicted and discharged without penalty. On 9 April 2020, Mr Mohammed was found guilty of possessing equipment to use with a controlled drug (not being cannabis) and this charge was also dismissed without penalty. On this same date, he was found guilty of a number of offences. There were two counts of property damage. There was also an offence of dishonestly taking property without consent, and five counts of failing to comply with a bail agreement. He was also found guilty of driving or using a motor vehicle without consent. An aggregate sentence of three weeks' imprisonment was imposed with a conviction, and there was also a licence disqualification of 12 months. A further charge of being an unauthorised person driving a motor vehicle was dismissed without penalty although a conviction was recorded.
7. On 14 May 2020, Mr Mohammed was convicted in the Port Adelaide Magistrates Court of an offence of giving false or misleading personal details to an officer; but he was discharged without penalty. On 9 July 2021, Mr Mohammed was convicted (but discharged without penalty) of a number of offences; namely, failing to comply with a bail agreement (five counts), possessing equipment to use with a controlled drug not being cannabis (seven counts) and a basic offence of dishonestly taking property without consent and possessing a controlled drug (not being cannabis). These offences do mark a very problematic stage in Mr Mohamed's life. Although he was discharged without penalty, he was developing substantially antisocial behaviours involving both the theft of property and the frequent misuse of an illicit drug or drugs, presumably methamphetamine.
8. I turn now to other more recent offending which has been of greater seriousness in that it has resulted in convictions and terms of imprisonment. The first series of offences in question was dealt with on 6 August 2021 in the Port Adelaide Magistrates Court. I had the sentencing remarks before me,[10] and I accept and rely upon them. I summarise the offending as follows. First, there was an offence of driving whilst under disqualification or suspension. That behaviour was described by the Court as 'contumacious' given earlier offences of a similar type.[11] The Court referred to multiple counts of theft. Three counts of theft were found to be reprehensible given the disability of the victim; and there was a further theft and assault where the applicant threatened the victim who pursued him.
9. Some of the offending appears in a newspaper report in evidence before me.[12] Mr Mohamed had grabbed $800 from an elderly man who had just withdrawn the money from an ATM. A witness who chased Mr Mohamed through the shopping centre caught up with him, and Mr Mohamed threatened to stab him. He produced a folded knife with a silver metal blade about 15 centimetres in length.[13] It would appear that one consequence of the offending was that the first victim was taken to the Royal Adelaide Hospital presenting with shock and chest pains and he subsequently required heart surgery.[14]
10. Mr Mohamed was in gaol at the time of sentencing and had been there for three months and one week. The Court sentenced him to a further two months imprisonment (after a discount was given) but he was given a suspended sentence provided he entered a 12-month good behaviour bond. Compensation of $1,550 was ordered to be paid.
11. This offending was clearly unprovoked, and it resulted in a term of imprisonment of over five months, which is a significant sentence. It had serious consequences for the victim of the theft as described in the newspaper report. I note that Mr Mohamed used a weapon to ward off a community member who was attempting legitimately to apprehend him after his cowardly robbery.
12. On 25 October 2021, Mr Mohamed appeared in the Adelaide Magistrates Court. Again, I accept and rely upon the sentencing remarks before me, which were detailed.[15] The first offences mentioned are being unlawfully on premises and damaging property (on 13 April 2021).[16] The applicant had returned to certain premises to collect his bicycle, and he kicked and bent a screen security door whilst under the influence of methamphetamine.
13. Mr Mohamed was also found guilty of attempted theft and aggravated threatening of harm, both of which offences occurred on 8 February 2021. He had entered a bottle shop. He hid a bottle of bourbon in his jacket and attempted to leave without paying for it. The store-attendant picked up a bottle and approached Mr Mohamed asking him to return the bottle of bourbon. Mr Mohamed attempted to push past the victim. He was grabbed by the attendant (which was a reasonable action given the theft taking place). Mr Mohamed then grabbed a vodka bottle and threatened the store-attendant. He then produced a knife and swung at the victim multiple times and threatened him. The knife came within a few inches of the victim's face. Another employee pressed a duress button which resulted in police attendance. The knife in question comprised what is described as a 'multi-tool' containing a bottle opener and corkscrew at one end and a small knife at the other. The Court refers to the impact on the victim.[17] The Court noted that Mr Mohamed was under the influence of methamphetamine,[18] and referred more generally to Mr Mohamed's drug problems.[19] Mr Mohamed was sentenced in total to a term of one year, one month and 26 days after a discount and after the three months and four days which he had already spent in custody. A non-parole period of six months was set.
14. Mr Mohamed committed further offences upon release. He was convicted of carrying an offensive weapon on 4 December 2023, but no further penalty was imposed. In May 2024, he was found guilty of a number of offences. He was convicted and discharged without penalty in respect of some of those offences and I need not consider those further. He was, however, found guilty of an aggravated assault with a weapon and was sentenced to seven months' imprisonment in respect of that offending. The sentencing remarks were before me and again I accept and rely upon them.[20] The Court referred to the most serious raft of offending having occurred on 29 January 2024 at a supermarket. Mr Mohamed had stolen a container of juice and then threatened the operator with a hammer when challenged. Mr Mohamed had been under the influence of drugs at the time. The Court noted that Mr Mohamed swung the hammer at the victim at least five times and then threatened him again. He was found to have a phone in his possession which he could not account for and some drug equipment.
15. On 28 March 2024, the police were summoned to the family home, which he was not permitted to visit. He smashed the bathroom window and intimidated his mother with aggressive and loud behaviour on that occasion.[21] Mr Mohamed returned there on 31 March 2024, and on 6 and 7 April 2024 as well. There were, however, no threats or violence on these latter occasions.
16. The Court referred to Mr Mohamed's drug use as a background issue.[22] A seven-month period of imprisonment was imposed after a 30 per cent discount. The persistent breaches of the family violence protection order resulted in a further three weeks' imprisonment which was reduced to two weeks on account of the guilty plea.
17. The Court noted that Mr Mohamed had been in custody since 7 April 2024 and was prepared to release him on his entering into a good behaviour bond.
18. Mr Mohamed then breached the bond and committed a number of serious offences. The Court's sentencing remarks were before me, and I rely upon them.[23] The most serious offending involved attending an 'On the Run' petrol station/convenience store. A small number of items were stolen. Mr Mohamed lifted his shirt and pulled out a knife when challenged. He lunged at the victim, who had to step back to avoid being struck. The very next day, Mr Mohamed was found in possession of that weapon. The Court decided that Mr Mohamed had shown absolutely no insight into his offending and had expressed no remorse.[24] A nexus was found between illicit use of drugs and the offending.[25]
19. In addition to this offending, Mr Mohamed had attended the family home again in breach of the intervention order. For this offending he was sentenced to two weeks' imprisonment after a discount. The total sentence imposed amounted to 19 months with a non-parole period of 13 months.
20. By way of further background, I note that Mr Mohamed had his visa revoked on an earlier occasion. The decision of the delegate, dated 6 June 2023, affirming the mandatory cancellation of the visa was set aside by this Tribunal's predecessor on 20 July 2023. This was given effect to by a consent order without a hearing or attendance by the parties.[26] Mr Mohamed was clearly on notice at this time that further offending could result in the cancellation of his visa. That is an important matter to bear in mind as further offending did occur after this time.

1. I now turn to the Direction and make the following prefatory remarks. The next four paragraphs are standard paragraphs I insert in my decisions in this area.
2. The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
3. Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
4. First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen's conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
5. Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight 'generally' to the protection of the Australian community over other primary considerations, it also provides that primary considerations should 'generally' be given greater weight over other considerations.

1. I turn now to apply the Direction. Section 8 of the Direction sets out the primary considerations the Tribunal must take into account. The first primary consideration is the protection of the Australian community from criminal or other serious conduct. By paragraph 8.1(1), when considering the protection of the Australian community, decision-makers are required to keep in mind that the safety of the community is the highest priority of the Australian Government. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they will be law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community. This principle has, self-evidently, an important role to play in the context of this case given the seriously anti-social aspects to Mr Mohamed's offending.
2. Decision-makers should also give consideration to the nature and seriousness of the non- citizen's conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: see paragraph 8.1(2). I turn first to consider the nature and seriousness of Mr Mohamed's criminal offending. In this regard, I am required to take into account a number of matters that appear in paragraphs (a) to (i) of paragraph 8.1.1(1). Mr Mohamed's offending has been violent and must be considered very serious for this reason.[27] It has also included family violence on multiple occasions at the family home. Some of attendances at the family home were not accompanied by physical violence as such but they were in breach of an intervention order and would have been confronting for Mr Mohamed's mother and other family members present. Accordingly, it is right to conclude that on balance and considered as a whole Mr Mohamed's offending must be considered to be very serious.
3. I also take into account the offences of breaching bail and bonds, and the illicit use of drugs. The latter does involve support of the drug trade as the respondent submitted.[28]
4. I have had regard to the sentences imposed by the courts.[29] There are a number of sentences which involved time to be served in custody, and the sentences have not been short. Mr Mohamed, in my opinion, can be said to have been given the benefit of some leniency in the past, but the final sentences became more serious, understandably, as the need both to punish and to deter increased.
5. I have some evidence before me on the impact of the offending on victims.[30] One set of sentencing remarks refers to the impact on the threatened bottle-shop attendant.[31] I also have a newspaper report that refers to the very serious consequences for the elderly person who was robbed.[32] That is an important aspect of this matter. Whilst Mr Mohamed cannot be said to have deliberately intended a very serious health consequence to the victim, a consequence of the type suffered was a foreseeable result of aggressive behaviour towards an elderly and vulnerable community member.
6. Mr Mohamed has frequently offended,[33] and there is now in my opinion an entrenched cycle of recourse to drugs, followed by anti-social behaviour involving stealing, followed by an unregulated and violent response to those challenging his theft. The attempt to shoplift may be said to be a relatively minor offence; but Mr Mohamed's reactions towards those challenging him were extreme. The stealing of the money from the elderly person was a very serious offence in its own right, and it involved a substantial sum.
7. There is an undoubted frequency in Mr Mohamed's offending as I have said, and I would say that there is a trend of increasing seriousness[34] because intervention orders, bonds, and bail conditions were breached and the leniency extended to Mr Mohamed on a number of occasions was ignored. There is a self-evident cumulative effect[35] of repeated offending of this type upon the community (including large amounts of court time having to be devoted to addressing his criminal behaviour).
8. Importantly, also, Mr Mohamed re-offended after having had his visa cancelled once before.[36] A consent decision was issued, as I have said, on an earlier occasion by this Tribunal's predecessor to set aside the decision. Mr Mohamed was clearly on notice that further criminal behaviour would see him both gaoled and deported.
9. I turn now to consider the risk to the Australian community. By paragraph 8.1.2(1), I am to have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated is so serious that any risk that it may be repeated may be unacceptable. This is an important principle to bear in mind when weighing Mr Mohamed's violent behaviour.
10. In assessing risk, decision-makers must have regard to, 'cumulatively', the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and the likelihood of the non-citizen engaging in that conduct. The nature of the harm to individuals or the Australian community should Mr Mohamed engage in further criminal or other serious conduct includes very serious injury. Mr Mohamed has chosen to arm himself with knives and a hammer and wielded them. It has only been because the victims of these assaults moved out of the way that serious injury was avoided. Future repetition of that behaviour may result in a very serious injury, indeed. So, I proceed on the basis that serious injury to a member of the public could well ensue from a repetition of the offending behaviour. I do not ignore either that members of the community, including store proprietors, have an interest in maintaining property rights and Mr Mohamed has on a number of occasions damaged property or stolen it. As far as the family violence is concerned, any repeat of the damage to the mother's property or aggressively yelling at her is very serious because of the highly confrontational aspect of a member of one's own family abusing an older parent in that way. Participation in the drug-trade, even as a consumer, is reprehensible, and the use of drugs by Mr Mohamed has resulted in extreme and unregulated behaviour.
11. The respondent submitted that as far as the likelihood of Mr Mohamed engaging in further criminal or other serious conduct was concerned, I should find that it was between moderate and high. I accept this submission. Mr Mohamed has, it would appear, unresolved trauma issues resulting from events in the Sudanese camp to which he alluded in his evidence and to which a psychologist has also made reference in a report.[37] These are unresolved issues,[38] and as they are unresolved, and to the extent that they continue to influence Mr Mohamed's behaviour, they heighten his risk.
12. Mr Mohamed's behaviour has been influenced by the misuse of drugs. I am not persuaded that Mr Mohamed has overcome his drug-abuse habit. He gave evidence, for example, that he wished to remove his entire family to Melbourne and start off afresh because he was afraid that he would fall back into poor company in Adelaide and recommence drug misuse and further offending. That is a concerning viewpoint for Mr Mohamed to have because it shows that he does not believe he is capable of avoiding adverse peer influences.
13. I am particularly concerned by the fact that Mr Mohamed has stood on the threshold of deportation, or at least extended immigration detention, on a prior occasion. Consent orders were entered in his favour in this Tribunal's predecessor as I have said; but even that dramatic experience did not deter him from further criminal conduct. For these reasons, I accept the respondent's submission that the risk profile is moderate to high. It follows, therefore, that I have concluded that Mr Mohamed, were he to be released to the community, would pose a real and substantial risk of resuming violent and antisocial behaviour (with a serious threat of serious injury) to the severe detriment of the community.
14. By paragraph 8.2, I must consider family violence committed by the non-citizen. Under paragraph 8.2(1), I note that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
15. The family violence in this case has consisted of unregulated behaviour in the family home. The damage of property in a female parent's home is a very serious matter. The smashing of a window and yelling are violent and aggressive acts, and they heighten considerably the victim's apprehension of violence to her person. Mr Mohamed has repeatedly attended premises when he was not permitted to do so. This is a concerning matter because he has shown himself in this area, as in other areas, to be plainly defiant of his legal obligations. It is a serious matter to ignore domestic violence prevention orders.
16. There has been some frequency in Mr Mohamed's conduct.[39] There have been repeated acts of family violence because I regard the multiple attendances at the family home as uninvited and intimidatory in nature (whether or not they were accompanied by violent threats). I do not think Mr Mohamed has achieved rehabilitation, nor do I believe he has genuine insight into his problems.[40] He said to me in evidence that his mother would not have believed that he would harm her, but that remark seemed to me to lack any insight into the plainly intimidatory and frightening effects of violence and yelling by a younger stronger male directed towards an older female parent. Mr Mohamed has reoffended in this regard despite court attendances, and so that is a further aspect that I must take into account against him.[41]
17. Under the Direction, I must consider Mr Mohamed's ties to Australia: paragraph 8.3. I agree with the respondent that some weight should be assigned to this primary consideration in Mr Mohamed's favour, but I would not attach much weight at all. Paragraph 8.3(1) provides that I must consider the impact of my decision on the non-citizen's immediate family members in Australia. There was very little evidence before me concerning that matter. I do not attribute any real weight to the impact on family members in the absence of clear information. I bear in mind that Mr Mohamed has had intervention orders taken out against him in relation to his family and that his general demeanour and threatening behaviour in the family home have been entirely objectionable and intimidatory, to say the least. The family sought police intervention, and he has caused substantial disruption to the household. One Court referred to the family 'having had enough of his behaviour quite frankly'.[42]
18. There are some other ties to the community, comprising his links to a mosque and the assistance he has rendered there, which I do regard as evidence of some pro-social choices Mr Mohamed has made. I give that some, but very limited, weight. I temper the weight that I would give to this matter because Mr Mohamed began offending soon after arriving in Australia.
19. I do not think the best interests of minor children arises in this case as a factor to weigh in Mr Mohamed's favour and it may be left to one side.[43]
20. I must have regard to the expectations of the Australian community under paragraph 8.5. Paragraph 8.5(1) provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further provides that where a non-citizen has engaged in serious conduct in breach of this expectation or there is an unacceptable risk that they may do so, the Australian community 'as a norm' expects the Government to not allow that person to remain in Australia. That is an important consideration to bear in mind in this case.
21. Paragraph 8.5(2) provides that a decision not to revoke the mandatory cancellation of a visa may be appropriate because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. This consideration applies here. Mr Mohamed has committed crimes against the elderly, and they have been acts of family violence. Moreover, I would regard the use of serious weapons in the commission of offences in the community as a gravely antisocial act that gives rise to very serious character concerns. The fact that drug misuse was involved as a causative factor only serves to heighten my concern. These expectations apply regardless of whether Mr Mohamed poses a measurable risk of causing physical harm to the Australian community;[44] but I note that I have already assessed his risk level as substantial. I apply the expectations as given in the Direction and do not qualify them by reference to the facts of this particular case.[45] This consideration counts substantially against Mr Mohamed.
22. I must have regard to 'other considerations' under section 9. Section 9 contains a non-exhaustive list of three considerations. Mr Mohamed submitted that if deported to Eritrea he would face the real risk of conscription in the Eritrean army.[46] The respondent did not dispute that this risk existed.
23. The respondent did not concede that Mr Mohamed, if he applied for a protection visa, would most likely be found to be owed non-refoulement obligations and thereby be found to be ineligible for deportation to Eritrea. It remains, therefore, a possibility that if I were to affirm the decision under review, Mr Mohamed would face potential deportation to Eritrea. Were that to eventuate, I would regard his conscription into the Eritrean army as a very serious impediment on removal.
24. I did not have before me a detailed analysis by the respondent in this regard. It would have been helpful to have had an analysis of the exact situation in Eritrea at the present time from the respondent's perspective. Although it is up to an applicant in one sense to make out his or her case before the Tribunal, there is a certain unreality in expecting a person in this applicant's position to do more than simply raise briefly what he or she understands to be the situation.[47] It would have been helpful if the respondent had made detailed submissions in respect of the situation in Eritrea to assist the Tribunal in its consideration of the applicant's claim.[48]
25. When I was preparing for this hearing, I drew to the respondent's attention a recent decision of my own in Mohamedali and Minister for Immigration and Citizenship ('Mohamedali') where I had received certain source material about the situation in Eritrea concerning compulsory conscription.[49] I invited the respondent to provide comment on that material in the absence of any material before me from the respondent. The respondent, by way of an answer to that invitation, tendered the DFAT[50] Country Information Report in respect of Eritrea (2017) ('DFAT Report').[51] In oral submissions, Mr Fursa, appearing for the respondent, accepted Mr Mohamed could face serious obstacles were he to be conscripted into the army on return to Eritrea.
26. I note Mr Mohamed is still relatively young and is apparently able-bodied. There is no reason for me to suppose that he would be deemed an unsuitable conscript. In paragraph [3.21] of the DFAT Report, it is recorded that a UN Commission of Inquiry (in its 2015 and 2016 reports) reported that the 'conditions of service faced by national service conscripts in Eritrea amounted to enslavement', a view noted to be shared by Amnesty International and Human Rights Watch. DFAT assesses[52] that almost all Eritreans are compelled to undergo some form of national service. While conditions for national service conscripts vary considerably, 'those whose services is primarily military-focused are most likely to be subject to harsh conditions and treatment which may include physical punishment'.[53]
27. I would also refer to the report to which I referred in my decision in Mohamedali and to which I drew the respondent's attention before the hearing.[54] This Human Rights Watch report, which is more recent than the DFAT Report, also raises very serious concerns about indefinite military service. It again refers to mandatory service being extended indefinitely and as a result Eritreans may 'have to subsist on paltry pay and endure arbitrary punishments'. I note as relevant background that Eritrea has not had an election since 1993 and is governed as an authoritarian state.
28. Pursuing the logical possibilities that arise from a decision by me to affirm the decision under review, I note that it may also be the case that Mr Mohamed would apply for a protection visa and be found to be owed protection obligations, but he might also be refused such a visa on character grounds.[55] The consequence for Mr Mohamed in that situation would be ongoing confinement in immigration detention until a third country were found. The period of immigration detention could not be endless because of the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs ('NZYQ').[56] Once the point had been reached that there was no real prospect of Mr Mohamed being removed to a third country within the reasonably foreseeable future, his time in detention would have to cease. At that point he would have to be released into the community. As I pointed out in Mohamedali, that period of time, while not endless, is nevertheless one that might be prolonged, and it would not have a definite end date in sight on which the applicant could count. If I regarded that hypothesis as being the more likely one arising as a consequence of a decision by me to affirm the decision under review, there would be serious questions to consider about Mr Mohamed's ongoing detention.
29. The third consequence that might arise if I affirmed the decision under review is that Mr Mohamed would apply for a protection visa and be granted one. That scenario involves no serious consequences for Mr Mohamed other than that he must remain in detention for a period of time while his application for a protection visa is considered. That may be some time, but it is unlikely to be a very long time: at least that is the assumption I am prepared to make.

1. I turn now to weighing the considerations. I commence with one very serious aspect of this matter; i.e., Mr Mohamed's repeated criminal and antisocial acts in the community. There is much in the Direction that speaks actively against his persistent criminal behaviour. Mr Mohamed's offending has involved considerable violence. It was merely good fortune that no-one was seriously injured in his violent interactions; and it is also the case that one elderly person had to undergo heart surgery as a direct result of a stress reaction to Mr Mohamed's aggression. Mr Mohamed commenced offending quite soon after his arrival in Australia. He poses at the present time a real and substantial risk of recidivism for the reasons I have explained. The 'community-expectations' consideration counts substantially against him, and there are limited ties to the Australian community.
2. Nevertheless, the application of the Direction is not a mechanical exercise. The closest attention should be given to the specific circumstances of the case.[57] The three scenarios that I indicated were possible were I to affirm the decision under review should be addressed and weighed (but obviously as mutually exclusive possibilities and not in any sense cumulatively).
3. In my view, it is reasonable to assume that as the respondent Minister was not prepared to reinstate Mr Mohamed's visa after its mandatory cancellation under the Act, there is not a high likelihood that the Minister would grant him a protection visa if he applied for one. It seems far more likely that Mr Mohamed would be denied a protection visa on character grounds than be granted one (on the assumption that he is in fact owed non-refoulement obligations).
4. This leaves the remaining two scenarios. It is not possible for me to predict which of these two is more likely to occur; but I would say that the combined likelihood of ongoing detention or deportation to Eritrea, taken together, is greater than the likelihood that Mr Mohamed would be given a protection visa on an application made by him were I to affirm the decision under review.
5. I have asked myself what my decision should be in this case if I assume that Mr Mohamed were deported to Eritrea. The consequences for him are potentially extremely severe on the evidence before me. When I consider the authoritarian nature of the Eritrean regime and the forced conscription of men into the army to further the regime's objectives, the situation is very concerning. I bear in mind that Mr Mohamed would have few, if any, contacts in Eritrea to assist him to negotiate life there with a view to evading conscription if possible. This remains a very serious factor to weigh. I must always apply the Direction to the circumstances of the individual case, as I have said. I weigh very seriously the primary considerations that count against Mr Mohamed, and I bear in mind that primary considerations should generally carry more weight than other considerations. I further bear in mind that the protection of the Australian community is generally the most important consideration. It nevertheless remains a fact that in this case the impediments on removal are potentially extremely serious, and I must weigh that matter very seriously. My view on balance is that I should not affirm the decision under review if the consequence of so doing would be to result in Mr Mohamed's deportation to Eritrea.
6. I have asked myself what my decision would be if the alternative and mutually exclusive hypothesis of ongoing detention were to eventuate if I affirmed the decision under review. This, too, is a serious matter. As I pointed out in the decision of Mohamedali,[58] the Federal Court has made it clear[59] that detention on an ongoing basis represents a very serious interference with a fundamental common-law right of personal liberty. I accept that in this case the interference with liberty could not be endless (because of the effect of the High Court's decision in NZYQ) but Mr Mohamed's detention could still be prolonged. I bear in mind that mandatory detention only ceases to be lawful once the point has been reached that there is no real prospect of a third country being found to accept a detainee in the reasonably foreseeable future. That formulation by the High Court in NZYQ of the governing limit to the lawfulness of detention does not exclude prolonged detention. Having regard to the very serious consequences for an individual of being deprived of his or her liberty on an ongoing basis in this way, I would have to weigh that consideration carefully. Here too, I would find that Mr Mohamed should be released rather than remain in detention.
7. The consequence of these conclusions is that I need not decide which of these two mutually exclusive hypotheses (namely, deportation to Eritrea or ongoing immigration detention) would be the more likely one if I affirmed the decision under review. My conclusion would be the same in either case. I reiterate that the third hypothesis I postulated (namely, that Mr Mohamed might apply for and receive a protection visa if I affirmed the decision under review) appears to me to be less likely than the combined likelihood of the other two. It follows logically that I need not consider what my decision would be under this scenario because the probability of its occurring is not greater than the combined probability of the other two scenarios (where I have concluded that I should set aside the decision under review).
8. I reach my conclusion in this case with some degree of diffidence, and I have thought carefully about the preferable outcome. Mr Mohamed poses a very real risk to the community and has been unstable for some considerable time. He has not managed to live within the family home peaceably, but to the contrary has threatened the security of his home and its occupants. He has irresponsibly and persistently misused illicit drugs, and this has heightened his risk profile. Much of his offending has involved a surprising level of violence. A shoplifter who produces a knife or a hammer and then seeks to use it when challenged is clearly in an elevated and dangerous state. In this case, that elevated state may well be explained by drug dependence; it may also be explained by untreated psychological problems. There is no doubt in my mind that Mr Mohamed does require treatment for his ongoing problems, which he has not sought out to date effectively. That is a very concerning matter because whilst he is untreated in the community, he will continue to pose a serious risk.
9. I must also weigh, however, as I have said, the very serious consequences of a decision to affirm the decision under review (namely, deportation to Eritrea or ongoing deprivation of liberty in detention as mutually exclusive hypotheses). This has been a very difficult decision, but on balance, my conclusion after a weighing of the various considerations required to be addressed under the Direction is that they do favour revocation of the cancellation decision.

1. Having reached that conclusion, I shall set aside the decision under review and substitute a decision that the cancellation of Mr Mohamed's visa be revoked. This is the decision I made and formally advised to the parties on 4 November 2025.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.

.........................[SGND]...........................

[1] The delegate's decision and reasons were before me: see Hearing Book ('HB'), 131ff.

[2] A Class AH Subclass 117 Orphan Relative (Permanent) Visa.

[3] See s 501(6)(a) and 7(c) of the Act.

[4] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024).

[5] The balance of this paragraph includes text that I routinely include in decisions I make.

[6] See, for example, Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33.

[8] Although one resulted in a good behaviour bond for 18 months.

[9] Presumably methamphetamine, on which the evidence before the Tribunal suggests he developed an ongoing dependence.

[16] HB, 252. It is not clear to me why these offences were said to be first in time since they postdate other offences.

[21] See police affidavit at HB, 409ff.

[26] HB, 121. I signed the consent order, and I raised this matter with the parties before me. No objection was taken by the respondent to my hearing Mr Mohamed's application to this Tribunal matter given my signing of the earlier consent decision.

[27] Paragraph 8.1.1(1)(a) of the Direction.

[29] Paragraph 8.1.1(1)(c) of the Direction.

[30] Paragraph 8.1.1(1)(d) of the Direction.

[33] Paragraph 8.1.1(1)(e) of the Direction.

[35] Paragraph 8.1.1(1)(f) of the Direction.

[36] Paragraph 8.1.1(1)(h) of the Direction.

[39] Paragraph 8.2(3)(a) of the Direction.

[40] Paragraph 8.2(3)(c) of the Direction.

[41] Paragraph 8.2(3)(d) of the Direction.

[43] See paragraph 8.4 of the Direction.

[44] Paragraph 8.5(3) of the Direction.

[45] Paragraph 8.5(4) of the Direction.

[46] HB, 184. See also HB 69 for his previous personal circumstances form.

[47] Cf, for example, AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205; (2019) 168 ALD 331, at [73].

[48] In pursuance of its duty under s 56 of the Administrative Review Tribunal Act 2024 (Cth) to assist the Tribunal to make the correct or preferable decision.

[49] Mohamedali and Minister for Immigration and Citizenship [2025] ARTA 1232, especially at [62] discussing a 2025 Human Rights Watch Report on Eritrea.

[50] Department of Foreign Affairs and Trade.

[54] Huma Rights Watch Report 2025 Eritrea.

[56] [2023] HCA 37; (2023) 280 CLR 137.

[57] Cf paragraph 5.1(3) of the Direction.

[58] See Mohamedali [2025] ARTA 1232 at [64].

[59] See WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463 at [123].