1. The Applicant gave evidence and answered questions by the Minister. His Wife, Ms D, also gave evidence in support of his position, by telephone. The Applicant was only challenged as to some specific parts of his evidence by the Minister. Ms D's evidence was unchallenged. Unless otherwise stated, I have accepted their evidence on the basis that I have found no reason to doubt its authenticity.
2. In deciding the application, I have also considered:

(a) a Hearing Bundle labelled HB comprised of pages 1-822 filed with the Tribunal on 7 January 2026 (Exhibit 1), which includes the parties' written submissions as set out in the Applicant's statements and the Minister's primary and further Statements of Facts, Issues and Contentions ('SOFIC'); > > (b) A bundle of certificates relating to courses completed by the Applicant whilst he has been incarcerated that was tendered at the hearing by the Minister (Exhibit 2). > > (c) The parties' oral closing submissions.

3. I will refer to the evidence and submissions, to the extent necessary to expose my reasoning, below.

Applicant's personal circumstances, offending history, and the evidence regarding a risk of recidivism

1. The following is taken largely from the SOFIC submitted by the Minister,[8] together with the evidence relied upon by the Applicant, and a 'Pathways' report completed in respect of the Applicant whilst incarcerated in 2012.[9]
2. Whilst the Applicant provided little by way of direct evidence as to his history and personal circumstances, I have done my best to piece the other relevant information together from the documentary material.
3. The Applicant is a 35-year-old citizen of Somalia.
4. His mother is reported to have died when he was between one and three years old. He was then looked after by his grandmother, who was 'good to him and let him do what he wanted.' However, she died when he was 7 years of age and his maternal aunt, Ms A, became his guardian. He was then cared for and raised by Ms A. The Applicant now refers to Ms A as his mother.
5. Due to the ongoing war in Somalia, Ms A and her family left Somalia with the Applicant when the Applicant was 26 days old and then lived in a refugee camp in Kenya for about 18 years.
6. The Applicant reports witnessing numerous murders and stabbings in Kenya and is traumatised by it. He reported that he attended school until Year 7, however he was expelled after assaulting the Principal. He stated that he then lived with a gang who sold drugs for a living and an older peer (who he called a brother), looked after him.
7. He reports that, aged about 9 or 10, he saw a man murdered by a crowd with rocks for stealing.
8. The Applicant reported that his father visited him in 2004, and tried to 'lay down the law'. However, he stated that it was too late by then and he did not accept him as an authority figure.
9. Together, Ms A, her children, and the Applicant, first arrived in Australia in 2009 through the humanitarian visa stream.
10. The Applicant reports that Ms A used to physically and verbally abuse him. He claimed that she had very strict rules and that she began accusing him of using drugs because he had friends who were drug users. He stated that he took drugs and weapons home one day and she told him to leave.
11. He obtained work as a kitchen hand between 2010-2013[10], noting he was incarcerated for part of 2012.
12. The Pathways report recorded, but the Applicant now denies, that, prior to 2012, he used illicit substances including cannabis; the latter of which he stated that he continued to smoke in order to 'forget traumatic memories.' It also reports that he admitted to some alcohol use but, although he admitted that he had been drinking prior to the offences that led to his imprisonment at that time, he denied that his alcohol use was problematic for him.
13. At some time prior to December 2013[11], the Applicant formed a relationship with Ms M, who is the mother of his two older children; Mstr. F (born in 2014) and Mstr. Z (born in 2015).
14. Mstr. F was first taken into the protection of the Department for Child Protection and Family Support (Department) on 28 October 2014.
15. Mstr. Z was likewise taken into protection shortly after his birth.
16. Those two children were placed by the Department with Ms A in June 2015.[12]
17. The Applicant and Ms M subsequently separated.
18. Around 2016[13], the Applicant formed a relationship with Ms D, and they subsequently married.
19. In February 2019, the Applicant and Ms M consented to a permanent (until 18 years old) protection order in respect of Mstr. F and Mstr. Z. They remained placed with Ms A.
20. Between 2017 and 2020, the Applicant worked as a labourer, predominantly in bricklaying.[14]
21. The Applicant and Ms D have one surviving child, Mstr. H, born in 2021.
22. The Applicant has four adult 'sisters' (Ms A's daughters), as well as five adult 'brothers' (Ms A's sons) and 10 nephews and nieces under the age of 18 who live in Australia.[15] It appears that all of them have a right to live here indefinitely.
23. The Applicant says that he has no surviving family in Somalia.

Criminal offending and other relevant conduct

1. I have set out the Applicant's criminal and traffic history, in full, at Annexure A. However, as it is lengthy, by way of summary:

(a) Between November 2010 and February 2012, the Applicant was issued a total of 12 fines for a range of traffic offences, breach of bail, stealing, providing false details, and carrying an article with intent to cause fear. > > (b) On 6 March 2012, the Applicant was sentenced to 12 months imprisonment for aggravated robbery and three months imprisonment for stealing, with both sentences served cumulatively from 12 January 2012. > > (c) Between April 2012 and October 2014, the Applicant was issued a total of 22 fines for a range of different offences including traffic offences, possession of prohibited drugs, breach of restraining order, contravention of domestic violence orders, possession of stolen property, disorderly behaviour in public, and possession of an unlicensed firearm or ammunition. > > (d) On 15 December 2014, the Applicant received a 7-month suspended imprisonment order for common assault on Ms M in circumstances of aggravation and two breaches of police orders. > > (e) On 18 June 2015, the Applicant received a 12-month suspended imprisonment order for breaching the previous suspended imprisonment order on account of being charged with threats to injure and failure to obey an order given by an officer. The Applicant was also placed on an intensive supervision order for one year. > > (f) Between July 2015 to June 2022, the Applicant was issued with another 14 fines for similar conduct to that which led to his previous fines. > > (g) On 22 July 2022, the Applicant was convicted on two counts of breaching family violence restraining orders. He was sentenced to four months imprisonment. > > (h) On 6 October 2023, the Applicant was convicted of three counts of sexual penetration without consent and criminal damage or destruction of property, both in connection with the same event. The Applicant received terms of imprisonment of five years, five years, and two years respectively for the sexual penetration without consent convictions, and a fine of $1,500 for the criminal damage offence. The Applicant was ordered to serve partially concurrent sentences with a total effective term of seven years imprisonment.

2. He is first eligible for parole in 2028.
3. In evidence before me, the Applicant routinely denied, or seriously minimised, his involvement in any aspects of his offending recorded in his convictions that he was taken to in questioning by the Minister.
4. When referred to his offending history, he said it was mostly 'just' for driving and stealing.
5. In relation to his several unlicenced driving offences, he repeatedly asserted that because he had an 'African licence', and because he had 'passed the test in Australia' but had 'not paid the fee', he thought he was entitled to drive in Australia. It was only when he was repeatedly pressed about the fact that he had been both charged and convicted several times for unlicenced driving that he acknowledged wrongdoing in that respect, and that he 'should have learned from the first time'. When the Minister pointed out to the Applicant that he reoffended in this regard shortly after having been imprisoned for unlicenced driving, he said he 'had a job and needed to drive.'
6. Without minimising some of the other offences, it is appropriate to give some substance and context to the Applicant's more serious offending, as recorded in the relevant police records.
7. The Applicant was taken to various entries in respect of his prior convictions by the Minister and afforded the opportunity to comment on them. Where I refer to the specific conduct alleged, and the Applicant was asked questions about it, I will record his response.
8. Firstly:

At about 4.15am on Sunday the 13th of February 2011 the victim was walking across the footbridge from Roe Street in Northbridge to the Perth Entertainment Centre in Wellington Street. The victim was talking to a friend on his iPhone 4. > > [The Applicant] was walking in the opposite direction on the footbridge with two other males. As the victim passed [the Applicant] one of the group said, "Nice phone, give us the phone." On[e] of his co-offenders grabbed the victim around the neck from behind in a "rear naked choke" and [the Applicant] snatched the victim's phone from his hand. As the co-offender choked the victim to the ground [the Applicant] and the other male searched [through the] complainant's pockets removing his wallet and other property. The victim was subsequently choked into unconsciousness. As he awoke the victim saw [the Applicant] and his co-offenders standing over him. One of the group threw the victim's wallet at him before the three began walking away. The victim called after them, "Give my shit back." [The Applicant] and his two co-offenders walked back towards the victim yelling, "If you want your shit back we'll fuck you up." Two other males came to the assistance of the victim and [the Applicant] and his co-offenders walked towards Wellington Street. A short time later, police apprehended [the Applicant] and his two co-offenders. [The Applicant] was searched and the victim's iPhone 4 was located in the front of his underpants. [The Applicant] was arrested and conveyed [to] the Perth City Detectives Office where he took part in an electronic Record of Interview. [The Applicant] denied the offence and said that he had bought the phone from an unknown person in Northbridge for $25.00. The two males with [the Applicant] during this incident were juveniles. One has also been charged with Aggravated Robbery. Inquiries are continuing relating to the other offender. The victim's iPhone 4 and wallet were recovered and have been returned to the victim. Approximately $100 stolen from the victim's wallet was not recovered.

9. The Applicant told me, in respect of this incident, that he did nothing wrong. He was present at the time with 'a group of boys and drunk' but he played no part in the alleged offending, and he had been given the telephone.
10. The Applicant was subsequently recorded as having offended against Ms M. The police evidence records that, on 15 December 2014, the Applicant was convicted of common assault in circumstances of aggravation and two counts of breaching a Police Order. The Applicant had been personally served with a violence restraining order (VRO) on 25 October 2014, with the protected person being Ms M. That order prevented the Applicant, for a period of 72 hours, from, relevantly, coming within 100m of Ms M or where she lives. The Applicant attended a residence Ms M was at on 27 October 2014, in breach of that order. They argued, and the Applicant hit Ms M with a bottle to the upper left side of her head which caused her pain, discomfort, swelling, and a minor abrasion.[16]
11. In evidence before me, the Applicant denied that offending. He denied any assault. He said Ms M came to the house he was living in, which appears to be inconsistent with the record that '[t]he victim was present and the accused started arguing with her after she made a comment about the phone' and '[h]e was allowed entry by the occupier (not the victim) and spoke to the occupants in the front room about buying a phone.'
12. He said that he and Ms M started arguing out the front of the house and the police came and 'took him in'. When referred to the record that he told the police that 'he wasn't there', he said that was because he left and didn't assault Ms M.
13. Later:

...on the 30th of December 2014, the [Applicant] was issued with a Move On Order (304928) causing him to be bound by the conditions of; to be beyond 100 meters from until11:00 am on Wednesday the 31st of December 2014. > > At 10:47 am on Tuesday the 30th December 2014, Police attended as a result of a disturbance complaint. Police located the [Applicant] and issued him with a move on order. > > The [Applicant] had consumed alcohol and acted in an aggressive manner towards occupants living at the address and Police. > > After being given ample time to leave the area or be taken to a train station by police the [Applicant] refused to leave the address stipulated in the move on order. > > The [Applicant] stated that unless police took him to Balga he would return to the address as soon as police leave.

14. The Applicant acknowledged this conduct, but said the house he was prevented from attending was where he was living and, I infer, that he was left with no other option. The Applicant did not meaningfully engage with the fact that he breached an enforceable order.
15. Further:

On 17 March 2015, the [Applicant] entered the Michael Hill jeweller at the Mirrabooka Square Shopping Centre and was captured on CCTV. The [Applicant] proceeded to the counter area where he observed two rings that were not secured and positioned next to the cash register. > > The [Applicant] unlawfully and without consent selected the items, taking them into his possession. The [Applicant] walked out of the store, making no attempt to pay for the items. > > The [Applicant] was later detained by Mirrabooka Square Shopping Centre security still in possession of the stolen rings. > > Police attended and arrested the [Applicant], conveying him to the Morley Police Station where he participated in an Electronic Record of Interview admitting the offence. > > The [Applicant] was refused bail with the present charge preferred. > > Explanation: "I thought they were fake and wouldn't be missed".

16. Despite the apparent evidentiary strength of this offence being recorded on CCTV, his admissions, and subsequent guilty plea to the offending, the Applicant's evidence to me was that he committed no offence. 'The jewellery was on [his] finger but [he] didn't [take it].' He pleaded guilty to protect his partner, who was responsible for the offence and he didn't want her to go to jail. The Applicant was on bail at the time.
17. On 26 October 2016, the Applicant was convicted of the offence of aggravated burglary in respect of an incident on 21 April 2016. The police statement of facts records that:[17]

The accused opened an insecure (sic) sliding security door at the rear of the house gaining access to the premises. > > Once inside the accused went into the dining area where he located and stole an Apple iPad belonging to the victim, from on the dining room table. > > At that time, having observed the accused's actions within the dining room, the victim screamed, unlocked and opened the front door and shouted to the accused to get out of the house. > > As the accused ran out the front door past the victim, he was seen to drop a cigarette butt on the door sill. > > The cigarette butt was forensically examined and the accused's DNA was positively identified.

18. The Applicant told me that his knowledge of this matter was that the police found a cigarette butt with three people's DNA on it and 'tried to charge' him. He was 'in the car' but the police said they would 'drop the charge if he pled guilty so he pled guilty.' He didn't enter the house or steal the iPad.
19. Later[18]:

On 31 December 2017, the [Applicant] and a friend (the complainant) were engaged in a heated argument over family issues. During this argument, the [Applicant] punched a large hole in the wall. The Police were contacted, and the [Applicant] was witnessed shouting at the complainant 3 times, "I'm gonna burn down this house with you in it, you cunt, I promise." He was convicted of Made threat/s to destroy, damage, endanger or harm property and Criminal Damage or Destruction of Property, and fined a total of $1,300.00.

20. The Applicant could recall that this related to his brother. He denied making any threats.
21. On 19 December 2021 at approximately 12:35am:[19]

... the [Applicant] jumped the side fence into the rear garden of the residence of the mother and father of his current partner [Ms D]. He approached the laundry door that was unlocked and entered the rear of the property. He proceeded to walk into the loungeroom whilst making noise, and the parents woke in a panic to find the [Applicant] standing in the living room. The [Applicant] was intoxicated and shouting 'I have come to get my son'.

22. He was convicted of 'without lawful excuse trespassed on a place' and fined $750.
23. On 5 February 2022, the Applicant was issued with a Family VRO (FVRO) with the protected persons identified as Ms D's parents. He was not permitted to enter or remain upon their premises or contact them for a period of 2 years. The applicant breached this FVRO on 26 June 2022, when he parked in the driveway of the residence and remained until police came. He was convicted and fined $500.
24. Two days later, he again breached the FVRO twice, by attending the property and then calling the victims. He was sentenced to a total of seven months imprisonment.
25. In respect of the final offending that included the counts of sexual penetration without consent in 2022 ('the sexual assault offences'), the Statements of Material Facts sets out, in part, that:

The complainant in this matter is 17 years of age... > > The suspect is 31 years old... > > The complainant attended the address to have drinks with several girlfriends. > > Once at the address the complainant observed four males standing outside. The complainant had never met the males before. One of the males was the [Applicant]. > > The complainant, the [Applicant] and three other males entered the address. > > Once inside the unit the [Applicant], complainant and others commenced drinking alcohol. The complainant also smoked cannabis and later in the night became heavily intoxicated. As a result, the complainant went and laid down on a bed. > > Sometime after in the early hours of Tuesday 25 May 2021, the complainant began to feel unwell. She walked out to the balcony and began vomiting. > > As the complainant was doing this the [Applicant] approached her and commenced putting his arm around her. The complainant felt uncomfortable with this and asked him to leave her alone. > > Later in the morning everyone went to bed. The complainant was left outside as she was still unwell. The [Applicant] approached the complainant and tried to comfort her, whilst doing this witness observed the [Applicant] with his arm around the complainant. [Redacted] told the [Applicant] to leave the complainant alone as she was uncomfortable with the way he was touching her. [Redacted] went back to bed leaving the complainant outside with the [Applicant]. > > The [Applicant] then ushered the complainant into the unit and laid her down on the couch. The [Applicant] laid on the couch next to the complainant and commenced touching her body all over. The complainant was still clothed, however the [Applicant] touched her breasts and vagina on the outside of her clothing. > > The complainant said to the [Applicant], "stop". The complainant said this on multiple occasions, however the [Applicant] ignored her and continued touching her. > > The [Applicant] then removed his penis from his clothing. He proceeded to place his erect penis between the complainant thighs. At the same time, he removed the complainant's pants, pulling her pants and knickers down her legs exposing her vagina. > > The complainant attempted to push the [Applicant] away, however was unable to due to her level of intoxication and the fact that she was unwell. > > The [Applicant] commenced touching the complainant on her breast and vagina. As he was doing this he was kissing her on the neck and ears. The complainant was crying at the time and was unable to stop the [Applicant]. > > The complainant rolled onto her side in an attempt to stop the [Applicant] from assaulting her. The [Applicant] laid behind the complainant and inserted his erect penis into her vagina. The complainant said to the [Applicant], "No, I want you to stop!". > > The complainant tied to push the [Applicant] away, she lifted her body slightly causing the [Applicant's] penis to fall out of her vagina.

The [Applicant] again inserted a finger into the complainant's vagina. As he did this the [Applicant] licked the complainant's neck and ears.

The [Applicant] removed his finger from the complainant's vagina and inserted it into the complainant's anus. The complainant continued to cry and said to the [Applicant], 'Fuck off and leave me alone'.

28. The sentencing Judge indicated they were not convinced that the Applicant was remorseful for his actions, even after having entered a guilty plea. The Judge recorded that the Applicant had not demonstrated any insight or remorse for his conduct against the victim. The only concession by the sentencing Judge was that the Applicant had spared the victim the trauma of a trial and so, whilst the sentencing judge had the ability to afford a 25 per cent concession (or discount) on sentence for a guilty plea, the Applicant's sentence was only reduced by 10 per cent.
29. Further, the sentencing Judge observed that 'I cannot describe [the Applicant] as having a low risk of reoffending'.
30. In respect of the sexual assault offences, on day one of the hearing the Applicant denied any recollection, or real understanding of the offending, and blamed his lawyer in those proceedings for telling him to plead guilty. After the overnight adjournment, the Applicant could recall, having spoken to a friend overnight, that he was lying beside the complainant in the morning when someone else came out of a room and started laughing at them. The Applicant put that, and apparent embarrassment on the complainant's behalf, forward as the basis for the complainant making what he clearly maintained were false complaints.
31. Whilst the Applicant expressed sympathy for the complainant, and said he wished he could apologise, I was left without any understanding of what he felt that sympathy about, given his stated position that he did nothing wrong.
32. Several adverse incidents have been reported against the Applicant during his most recent time in prison. He was reported for stealing, and 'dismissed from education' as a result.[20] He was warned for 'arguing with [an] officer'. He was also found on two occasions with medication not issued to him, which has led to further charges.[21]
33. However, whilst in prison, the Applicant has completed several courses aimed at his rehabilitation.
34. In addition to the Pathways course he undertook in 2012, which comprised 100 hours of contact, the Applicant has completed:[22]

(a) A Community Transitions voluntary Family Domestic Violence and Community Transitions Drug and Alcohol Readiness Group program in 2022; > > (b) A one-day social and emotional wellbeing workshop in 2024; > > (c) A 'reset drug and alcohol brief intervention program' in 2024; > > (d) A 'basic workshop' in 'peaceful pathways to conflict resolution' in 2025; and > > (e) The 'advanced workshop' to that course in 2025.

35. The Applicant says that, from those courses, he has come to appreciate that alcohol use is a primary driving factor when he offends and he has now stopped drinking alcohol. He now understands that he needs to unburden himself to others, for example through counselling, and stop and think when he feels under pressure, instead of reacting.
36. In questioning by the Minister, the Applicant acknowledged that he is in good health and has the skills and experience to obtain work in Somalia but says it would be difficult to do so.
37. Primarily, he says he would be killed if he returns to Somalia and says that is what happened to several members of his family. He did not elaborate on that evidence.
38. Ms D's evidence is that she considers the Applicant to be a respectable man and a wonderful father. He has been a support to her financially and in other ways. She describes him as 'generous, kind, and as having a big heart'. Ms D describes Mstr. H as loving the Applicant 'unconditionally' and that the two have a 'special bond'.
39. Ms D says it would cause a lot of pain and heartbreak for her, Mstr. H, and the Applicant's other children if he is removed.
40. She says that she currently has '100% care' of Mstr. H with the support of her own parents. If allowed to remain in Australia, Ms D says the Applicant would live with her and help to provide care to Mstr. H.
41. I infer that Ms D will not relocate to Somalia with Mstr. H if the Applicant is removed there.
42. The Applicant provided signed statements from two other witnesses in support of his application.
43. The first is Ms D's mother, who, in a brief statement, says she supports the Applicant remaining in Australia so that he can 'continue to be a family' with her daughter and Mstr. H.
44. The other is a letter from the Applicant's former employer in bricklaying, Mr NA, who says that he and the Applicant are 'basically family'. He has worked with the Applicant since 2017 and finds him hard working and dedicated. If the Applicant is allowed to remain in Australia, Mr NA will 'support him [in] every way possible especially when it comes down to a job, his spot is always open with bricklaying and I have a job for him if everything goes well.'
45. The Applicant told me he would work in bricklaying after his imprisonment, possibly with Mr NA who now has his own business. The Applicant said he might, otherwise, start his own business or seek employment in the mining industry.
46. There is no current and probative expert evidence in respect of the Applicant's level of rehabilitation and risk of further offending.
47. Notably, there is also no evidence from any of the Applicant's other family members who are in Australia.

1. It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is 'another reason' why the mandatory visa cancellation should be revoked. The task of identifying 'another reason' was explained by the Full Court of the Australian Federal Court in Viane v Minister for Immigration and Border Protection:__[23]

There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision 'should be' revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.

2. There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (albeit in the context of Ministerial Directions preceding Direction no. 110).[24] The Full Court of the Federal Court considered the operation of Direction No. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[25] While the Court was considering Direction No 90, I am satisfied that its observations apply equally to Direction no. 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction no. 110) against each other and undertake an evaluation of whether there was 'another reason' why the cancellation should be revoked.[26]

The Migration Act

1. Under s 501(3A), the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
2. Additionally, under s 501(3A), the person must be 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.
3. It is not in dispute, and I have found that those conditions were met here.
4. If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the cancellation decision.[27] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is 'another reason' why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is another reason why the cancellation decision should be revoked.[28]

1. The Minister, and therefore the Tribunal on review, is required to form a state of satisfaction as to whether there is 'another reason' why the Cancellation Decision should be revoked, reasonably and on a correct understanding of the law.[29] By the operation of s 499(2A), in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to

s 499(1). 2. On 7 June 2024, the Minister made Direction no. 110 under s 499, which commenced operation on 21 June 2024. That is the Direction that must be applied.[30] 3. An objective of Direction no. 110 is to guide decision-makers in exercising powers under

ss 501 or 501CA.[31] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction no. 110 where relevant to the decision.[32] However, the Direction does not authorise or require the Tribunal to ignore other relevant evidence or factors that may lead the Tribunal to a state of satisfaction that there is another reason to revoke the cancellation decision. 4. Whilst the primary and other considerations in Direction no. 110 are mandatory considerations they are 'not an exhaustive universe' of considerations.'[33] Put another way, while Ministerial directions may serve a purpose of consistency of decision-making, the Minister cannot, by such a direction, dictate what must be the outcome before the Tribunal undertaking its review on the merits of a particular decision.[34] Similarly, there is no presumption that, because a person fails the character test, it means that they must not be allowed a visa.[35] 5. Paragraph 5.2 of Direction no. 110 contains several principles that must inform my application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision. Those principles are: 1. Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non‑citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. 2. The safety of the Australian Community is the highest priority of the Australian Government. 3. Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. 4. The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community. 5. Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. 6. With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. 7. Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non‑citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. 8. The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community. 6. Informed by the principles set out in paragraph 5.2 of Direction no. 110, I must take into account the primary considerations and the other listed considerations, where they are relevant, having regard to the specific circumstances of the case. I must also consider the Applicant's other clearly articulated submissions based on established facts that may properly bear on my decision. 7. The primary considerations are set out in paragraph 8 of the Direction. They are:

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

(b) whether the conduct engaged in constituted family violence;

(c) the strength, nature and duration of ties to Australia;

(d) the best interests of minor children in Australia; and

(e) expectations of the Australian community.

1. The 'other considerations' that I must properly consider, insofar as they are relevant to the matter, include (but are not limited to):[36]

1. Further guidance as to how I am to apply the considerations in Direction no. 110 can be found in paragraph 7, which provides:
   1. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
   2. The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
   3. One or more primary considerations may outweigh other primary considerations.
2. However, as regards paragraph 7(2), in FHHM v Minister for Immigration,[37] the Full Federal Court considered its precursor in Direction 79, which also stated that primary considerations should generally be given greater weight than other considerations. O'Callaghan and Colvin JJ, with Derrington J in agreement, referred with approval to remarks made by Colvin J in Suleiman,[38] and stated at [34] that

...particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations...

3. It is not sufficient for the Tribunal to weigh each of the considerations in Direction no. 110 separately and then aggregate each of the individual assessments by some form of tabulation or calculation. The Tribunal must undertake a process of weighing and balancing, by which it evaluates the different relevant considerations in relation to each other in a balancing exercise in order to reach the ultimate conclusion required by s 501CA(4) of the Act.[39]
4. The discretion conferred by s 501CA(4) is to be exercised subject to the Act and to the self-evident Australian community protective purpose of the discretion. However, by virtue of the section conferring a discretion, it necessarily follows that Parliament has accepted that this purpose is not necessarily served in a given case by a refusal to grant a visa to a person who does not pass the character test.[40] Punishment of the Applicant for the conduct or offences relevant to the decision plays no part in the Tribunal's evaluation. That is a role that is 'exclusively judicial in nature'.[41] However, the process by which the Applicant's visa was cancelled, and whereby that cancellation may not be revoked, is not itself punitive in nature.

1. The first primary consideration, paragraph 8.1(1), directs my attention to the protection of the Australian community. It requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and, to that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
2. I must 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 are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[42]
3. Paragraph 8.1(2) then provides that I must also consider 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.

1. I dealt with the Applicant's most significant alleged offending conduct above and have taken into account the nature of his other offending conduct as reflected in Annexure A.
2. I then need to consider the Applicant's denials of his involvement in the offending shown in his conviction record, as described in the relevant police and court records, and as referred to above. The evidence needs to be carefully scrutinised, not least due to the serious consequences for the Applicant of findings that he engaged in the offending conduct.
3. Because the Applicant's denials were not in respect of the conviction that allowed the cancellation of his Visa, I am not precluded from considering them.[43] Instead, '[t]he essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on the person seeking to challenge the facts upon which the conviction is necessarily based.'[44] I also accept that the heavy onus an applicant faces in challenging the facts on which a conviction is based will be more easily met where the applicant pleads guilty to an offence.[45]
4. However, I am not satisfied that the Applicant has met that onus, however relaxed where he entered pleas of guilty to the charges, simply by raising his bare denials for the first time (in these proceedings) during questioning by the Minister.
5. Without purporting to be prescriptive or exhaustive, such denials are more likely to be found credible where there are some factor or factors that support them, which may include:

(a) a reasonable attempt to put another party, who is clearly relying on the convictions as part of their case, on notice of the denials (or that they are maintained if they were raised prior to the conviction) and why they are made; > > (b) some attempt at providing corroborating or independent evidence, or an explanation of attempts to do so and why they have failed; or > > (c) where a plea of guilty was entered, some plausible explanation of circumstances that vitiated the Applicant's plea, in conjunction with the denial of the offending.

6. No such factors, or other probative factors that I can identify, exist here.
7. Furthermore, when evaluating evidence, a trier of fact is entitled to consider its inherent plausibility. It should never be thought that the criminal justice system is infallible, but, in my view, the inherent plausibility of a person having been wrongly convicted, or convicted based on incorrect facts, decreases where the allegation is made about several offences, and more so where the allegation is made in respect of almost all prior convictions a person is taken to in evidence.
8. The Applicant also routinely denied or deflected personal responsibility for other conduct when taken to it in evidence, despite extensive documentary evidence contrary to his position that he was referred to. For example, he attempted to lay responsibility for his two older children being taken into care on Ms M, and alleged it was due to her drug taking. That was despite the well documented evidence that it was concerns about his propensity for violence and Ms M's young age that led to them being taken into care.
9. When pressed, and referred to the documentary evidence, the Applicant acknowledged that neither he nor Ms M were using drugs at that time. The problem, he then said, was that he was drunk and Ms M wanted a drink and that was why arguments would start. He then said that made it 'half' his fault' and 'half' Ms M's fault. He ultimately conceded, in a manner I found unconvincing as to his true acceptance, that it was his fault.
10. Similarly, when asked about records of the Department that he had failed to attend some contact visits with Mstrs. F and H, the Applicant's immediate response was that this only occurred because he was 'locked up', however, that was inconsistent with his arrest and detention history, and the contemporaneous note maintained by the Department[46] that he was 'not able to provide a reasonable explanation for not appearing or notifying [case manager] otherwise' at the time.
11. I formed the view that the Applicant has a tendency to deny and deflect personal responsibility for matters that might be adverse to his interests without first taking the time to consider the question or even contemplate the extent of the other evidence that might make his denials implausible, and regularly untenable.
12. Whilst I accept that a finding that a witness lacks credibility in respect of one aspect of their evidence does not mean they universally lack credit, there is nothing before me that would allow me to differentiate between the Applicant's denials such as to find that they were justified in some respects, but not in others.
13. In summary, I found each of the Applicant's denials in respect of his offending conduct, given in the manner that they were, inherently implausible and ultimately unpersuasive. I am satisfied that the conviction records and statements of material facts are the best evidence of what occurred, and I have formed a state of reasonable satisfaction that they reflect the true position.
14. I proceed on the basis that the Applicant committed the offences reflected in his conviction history as described in the related documents.
15. Direction no. 110 requires me to take into account a range of factors, including certain conduct which is specifically categorised in paragraph 8.1.1(1), and thereby deemed to be regarded by Australia's Government and community as 'very serious' or 'serious'. Paragraph 8.1.1(1) indicates that both violent and/or sexual crimes, and crimes of a violent or sexual nature against women (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed by the Government and community as being considered very serious.
16. The Applicant's criminal conduct, insofar as it relates to the assault on Ms M, and the sexual assault offences is patently very serious. This is reinforced by the respective sentences imposed, noting that incarceration is a penalty of last resort.
17. I am satisfied that the sexual assault conduct, in particular, should be viewed as falling in the highest range of seriousness. It was described by the sentencing Judge as 'vile'. I respectfully think that description apt. It also has a significant impact on the victim, who described its impact on her in a victim impact statement:[47]

[...] I get flashbacks and have panic attacks, or just people simply saying certain words or happen to look like [the Applicant] and I freak out. It is definitely not easy but I understand hurt people, hurt people. > > Unfortunately, with having this strong willed mindset it has its flaws. I am constantly mentally exhausted from holding up a hard front and having to be independent and strong all the time on my own. My biggest fear is losing control or having to rely on anyone for help. Always feeling embarrassed about what he did to me. I internalise a lot of my worries and find it difficult to communicate, therefore shutting down when I get overwhelmed, almost like my body is numb from any type of emotion. My skin continuously breaks out with acne because my body can't handle all of the stress I feel. Although I always stand up for what's right, I am terrified of confrontation and any sort of violence. I find it hard to trust the people closest to me and am often sad from loneliness and overthinking of people's views on me. I am impatient and frequently find myself getting worked up and angry over small things. I find it hard to get comfortable while being intimate with partners yet crave love and affection. I wear my heart on my sleeve and move quickly with partners but am so scared of committing to someone. I get flashbacks of the incident when I finally try and relax and end up in tears or having a panic attack; but that is just what you have to deal with, along with knowing you have just become another tally on the rape victim statistic.

18. Whilst much of the Applicant's other offending is less serious taken in isolation, he has a very significant history of persistent offending that demonstrates an unwillingness to abide by the law and to learn from past punishment. The Applicant's other offending can also be properly described as frequent and, given the particularly very serious nature of the sexual assault offences, it was, overall, of increasing seriousness. The cumulative effect of such a significant pattern of offending impacts not only the individuals affected by each offence, but it places a strain on already burdened policing, judicial, and prison systems.
19. I take into account the admittedly less serious penalties that much of the offending attracted and the fact that the Applicant was not warned about the consequences of his offending on his migration status. He has not provided false or misleading information to the Department charged with administering the migration system.
20. Taken cumulatively, I consider the Applicant's other offending conduct to be serious.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

1. I must then consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction no. 110 states, in part:

1. In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should 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. 2. In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and > > (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: > > > (i) information and evidence on the risk of the non‑citizen re-offending; and > > > > (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). ...

2. There is no statutory constraint on the way that I assess that risk other than that there must be a rational and probative basis for my assessment.[48]

1. I am required to have regard to paragraph 8.1.2(1) and have done so.
2. Given the extent and breadth of the Applicant's offending, it is difficult to assign an individual description to the nature of the harm it represents
3. If one looks at the nature of harm arising from, for example, the Applicant's theft from Michael Hill Jewellers, the harm is of a less serious, but not unimportant, economic nature. It was occasioned to a single, and relatively large business.
4. Moving to the harm caused by the sexual assault offending, the victim impact statement provides clear evidence that such may cause very serious psychological harm.
5. So, taken individually, the nature of the harm to individuals or to the Australian community should the Applicant re-offend is variable, and ranges from relatively minor economic harm to individuals or businesses, to very serious psychological harm from the sexual assault offences and potentially catastrophic physical harm, albeit thankfully not yet manifested, insofar as the Applicant's driving under the influence of alcohol is concerned.
6. Furthermore, in addition to the individual harm caused by each offence the Applicant commits, there is the cumulative economic harm caused to the general public through the drain on police, health, and justice resources caused by the Applicant's repeated offending.
7. The Minister contends that harm should be broadly described as 'significant'.
8. The Applicant did not contend otherwise.
9. I agree that there is a risk of significant economic, psychological, and physical harm if the Applicant re-offends.

Likelihood of the non-citizen engaging in further criminal or serious conduct

1. In respect of paragraph 8.1.2(2)(b), the Applicant submits that he poses no risk at all of reoffending or engaging in other serious conduct.
2. Whilst in prison, he says he has abstained from alcohol which he now recognises as the primary cause of his offending. He also points to his completion of the rehabilitation courses that I have referred to above, and to the support of Ms D and other members of his family in Australia.
3. The Minister refers to the sentencing Judge's comment that they could not describe the Applicant as having a low risk of reoffending, a view that the Minister contends is appropriate given the Applicant's tendency for recidivism.
4. The Minister also points out that there is no psychological opinion providing any professional risk assessment of the Applicant's likelihood of reoffending.
5. The Minister submits that the Applicant continuously exhibits a clear disregard for the orders that have been imposed by previous sentencing judges. There is a notable escalation in the severity of the offences, after having been charged with a range of driving offences within his first few years in Australia, to being charged with assaults, aggravated robbery and burglary, weapon possession, and his most recent convictions for sexual penetration without consent. The Minister posits that the Applicant's offending is varied but consistent in frequency and he has clearly not been deterred by his previous periods of incarceration.
6. The Minister also contends that the Applicant's illicit substance abuse issues have not been tested outside of a controlled environment such as prison or detention, regardless of his claims to have remained sober whilst in prison. Concern as to this issue is reinforced by his charges for possession in prison of Buprenorphine and Naloxone in 2025.
7. The Minister contends that where the Applicant has failed to implement rehabilitation programs in the past and has not addressed his underlying substance issues, there remains a very real and unacceptable risk that the Applicant will continue to reoffend.
8. As a result, the Minister contends that this is a case where the risk of harm is so serious that any risk of reoffending is unacceptable.
9. Whilst the Applicant's more recent completion of courses is admirable, and represents a genuine attempt at rehabilitation, I accept that his completion of the more substantial Pathways program in 2012 appears to have had little to no impact on his criminogenic needs. As a result, I derive little comfort from the mere completion of those shorter courses, where I have no independent evidence as to the insight and advantage the Applicant has gained from them and where the Applicant was unable to articulate what he has learnt at anything more than the most superficial level.
10. The Applicant's ability to abstain from alcohol in the community is untested and he has provided no meaningful indication that he acknowledges that it may be tested on his release, or that he has developed ongoing strategies that he can rely on in that respect.
11. The Applicant's inability to accept responsibility for much of his offending indicates that he has little insight into the harm it has caused, and, despite his large family group, I have no evidence from any of them beyond Ms D as to any level of extra support that they may be available and willing to provide the Applicant that was not available to him when he last offended.
12. Taking those issues into account, I am satisfied that there is a high likelihood of the Applicant reoffending in the nature of his driving offences, property offences, and breaches of applicable restraining orders. Given the one-off nature of the sexual offences, despite the Applicant's long history of other offending, I am satisfied the likelihood that will be repeated is much lower and properly described as low to moderate. However, the nature of the direct harm such offending would involve makes that risk unacceptable.
13. Overall, I assess this primary consideration as weighing very heavily against revocation of the Cancellation Decision.

1. Under paragraph 8.2 of Direction no. 110, I must have regard to family violence perpetrated by the Applicant when deciding whether to revoke the Cancellation Decision.
2. Paragraph 8.2(1) of the direction informs me that '[t]he 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...'.
3. As can be seen from this statement, whilst the first primary consideration was addressed to the Applicant's past conduct, present circumstances, and likely future conduct, this primary consideration is focused on the views or policies of the Australian Government, informed by any family violence engaged in by the non-citizen.
4. The material before me contained several allegations the Applicant having potentially engaged in acts of domestic violence as defined in Direction no.110. However, as the majority of them were not the subject of independent verification or criminal charges, the Minister submits they should not be considered to rise to the level of information or evidence from independent or authoritative sources and so should be disregarded in considering this primary consideration. I will proceed on that basis.
5. However, the Minister does rely on the Applicant's conviction for assaulting Ms M by striking her with a bottle to the side of the head in respect of this primary consideration.
6. Firstly, I am satisfied from reviewing the material as a whole that Ms M was, at the relevant time, one of the 'members of the [Applicant's] family' for the purposes of cl 4(1) of the Direction because, at one time, she had an 'intimate personal relationship with the Applicant.'
7. It is then necessary to consider whether the conduct constituted 'family violence' as defined in Direction no. 110.
8. Clearly, it was an assault, which falls within the inclusive definition of conduct that might constitute family violence.
9. However, there is no direct evidence before me that it coerced or controlled Ms M or that it caused her to be fearful, which are also defined elements of family violence for the purpose of the Direction. The available direct evidence, which I accept, is that it caused her to suffer pain and discomfort along with swelling and a small cut that did not require medical treatment.
10. There is currently a divergence of judicial opinion as to whether the reference to 'coerces or controls a member of the person's family (the family member) or causes the family member to be fearful' in the definition of family violence for the purpose of the Direction is inclusive or exclusive.[49]
11. However, this is not the occasion to delve into that issue because I am satisfied that there is an available inference that the Applicant's conduct of hitting Ms M in the face with a bottle such as to cause pain and discomfort along with swelling and a small cut would cause her to be fearful of him.
12. Taken with the evidence that the conduct occurred in breach of an existing 72-hour police order that the Applicant not be within 100 meters of Ms D, due to another alleged domestic violence incident,[50] I am satisfied that I should draw that inference.
13. The Australian Government's concerns are stated to be 'proportionate' to the seriousness of the family violence engaged in (cl 8.2(1)). Whilst this was an isolated act, it is also a very serious one and one committed in breach of the very type of order designed to protect the welfare of domestic violence victims.
14. I acknowledge that the Applicant has completed some rehabilitative courses that may have served to reduce the risk of further such offending, however his denials of the offending mean I can have no comfort that he has any real insight into the effect it has had on Ms D.
15. There is no evidence that he was warned about the effect of his conduct on his immigration status.
16. I accept the Minister's submission that the Government's 'serious concerns' are engaged to a considerable degree in this matter.
17. I assess this primary consideration as weighing heavily against revocation.

The strength, nature and duration of ties to Australia

1. Paragraph 8.3 of Direction no. 110 provides that:

1. Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. 2. Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: > > > (i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and > > > > (ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community > > (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.

2. I have no direct evidence as to the effect the Applicant's removal from Australia would have on members of his family living in Australia, other than in respect of Ms D and Mstrs. F and Z and H.
3. Despite the Applicant's evidence that he maintains contact with and a connection to Ms A, his sisters and brothers, and their children, he did not directly address how they would be impacted by his removal. None of them have visited him in prison for about a year, despite the prison's reasonably close proximity to where they live. However, the Applicant's evidence as to the ongoing relationship, and of his involvement in their lives prior to his incarceration permits an inference, that I will draw in his favour, that they would all be negatively impacted by his removal.
4. Similarly, I accept from Mr NA's reference to the Applicant as being like 'family' that he would also be negatively affected.
5. Plainly, Ms D and the Applicant's three children would be negatively impacted by his removal and the loss of their ability to maintain an in-person relationship with him, and the potential that he may find it more difficult to provide financial support from Somalia.
6. In the circumstances, I assess the Applicant's relationship with all of those people to be strong, close, and enduring. Other than in respect of Ms A, there is little to suggest that the Applicant has strong social ties to other people in the community with a right to live here permanently.
7. Whilst the Applicant did not come to this country as a child, he was very young, and he has lived here for many years; basically his entire adult life.
8. Against that, he commenced offending within two years after his arrival and there have been relatively few periods where the Applicant has contributed positively to the community by not offending. He has been incarcerated or detained for six of the seventeen years he has lived here. He does have a history of employment.
9. The Minister submits this consideration should be given only minor weight in favour of revoking the Cancellation Decision.
10. However, I find that this primary consideration, including the impact of a decision on the Applicant's immediate family and the strength, nature and duration of the Applicant's other ties to Australia, weighs heavily in favour of revocation of the Cancellation Decision.

Best interests of minor children in Australia affected by the decision

1. Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. As there are several relevant minor children involved in this application, I am required to give their interests separate consideration to the extent that their interests may differ.
2. Clause 8.4(4) of the Direction outlines the factors that I must consider when determining the best interests of a child affected by the decision.
3. I have identified as the children affected by the decision the Applicant's children, nieces, and nephews.
4. Mstr. H is now 4 years old. He was about one year old when the Applicant went to prison. He speaks regularly to the Applicant by 'Webex' but has not had face to face visits, which the Applicant is yet to arrange. The Applicant says that he has 'put in the forms' to be allowed to do so. Whatever Mstr. H. wants, the Applicant arranges for Ms D to buy, using monies he had saved prior to his incarceration. Mstr. H sends the Applicant drawings. He was very young when the Applicant was incarcerated but I accept Ms D's evidence that he and the Applicant have a special bond, which is parental in nature. Ms D currently fulfils a parental role for Mstr. H. Given the nature of that bond; I accept that the Applicant may play a positive parental role for Mstr. H in the future, notwithstanding the risk of him reoffending. He has, however, been impacted by the Applicant's offending conduct in that he has been kept apart from the Applicant and lost the ability to have personal, face to face contact with his father. I assess that as likely having some negative, but not significant impact on Mstr. H. As the youngest of the Applicant's children, and where their ability to spend time together was prevented from a young age and will be restricted until the Applicant's release, I assess that it would be very difficult for Mstr. H to form and maintain a normal parental attachment with the Applicant if the Applicant is removed, despite the availability of electronic communication in those circumstances.
5. I have little information on which to differentiate the interests of Mstrs. Z and K.
6. The Applicant says that before he was incarcerated, he would visit them at Ms A's house after work. He celebrated their birthdays and school holidays. Mstr. F goes to a Muslim school. The Applicant describes Mstr. Z as a similar child but perhaps kinder and more thoughtful than Mstr. F.[51] The Applicant calls them each Saturday and Sunday. They have visited twice but he doesn't want them to see him in prison and so the Applicant does not allow them to have face to face visits. The Applicant acknowledges they are being well looked after by Ms A, who, along with one of her daughters, plays a parental role for them. However, despite that, and despite records indicating that the Applicant may have been less than diligent in supervising Mstr. F when he was a baby and attending supervised contact visits, the Applicant has a parental role for those children and the evidence indicates that they both have a strong, close, and enduring relationship with him.
7. It is apparent that the Applicant is content that the relationship these children have with him can be maintained through electronic means, given his choice not to prioritise face to face contact, and so I surmise that they would be less impacted than Mstr Z by the Applicant's removal, but I have no doubt that they would nevertheless be impacted by reduction in the strength of the relationship they could maintain with the Applicant if he is removed.
8. They have, of course, also been negatively impacted by the Applicant's offending conduct in that they have been kept apart from the Applicant and lost the ability to have personal, face to face contact with him. The Applicant's evidence is that he would seek to have these children returned to his care on his release from prison and I am satisfied that he would play a positive parental role in any event.
9. All of the Applicant's children have many years to go before they turn 18 and so they would be deprived of his care for many years if he is removed.
10. On the evidence before me, I cannot identify any material difference in the way the Applicant's nieces and nephews will be affected by the decision or in their respective interests. The Applicant's evidence was that they all live in the same house with one of his sisters. Each has someone other than the Applicant playing a parental role and none of them have had face to face contact with the Applicant for about a year. The Applicant's evidence was that he speaks to them when contacting his sisters by 'Webex' to maintain contact with Mstrs. Z and K, and that he used to be very involved in their lives before his incarceration. He says they look up to him and would be distraught if he was not around. Despite his non-parental role for these children, I am satisfied that the Applicant has a close, strong, and enduring bond with them, that is not ideally maintained by electronic communication.
11. I accept, as a general proposition, that having family ties close at hand is a positive thing. I therefore accept that the Applicant's minor relations will benefit from having him in their lives, and that it is in their interests to develop and maintain cultural and family ties with the Applicant as they grow up in Australia.
12. I am not satisfied that the evidence of alleged neglect of Mstr F is sufficient for me to make a finding that this occurred. In my view, paragraphs 8.4(4)(g) and (h) of Direction no. 110 have no application.
13. The views of the children, so far as they can be ascertained, appear to be clearly in favour of them having close contact with, and support from, the Applicant. I give this weight to that extent, despite their young ages.
14. I am satisfied that it is in the best interests of each of the identified children that the Cancellation Decision be revoked.
15. Both parties accept, and I am satisfied, that this consideration must be given weight in favour of revoking the Cancellation Decision. The Minister submits I should only give it modest weight.
16. Cumulatively, this primary consideration weighs very heavily in favour of revocation.

1. The fifth primary consideration requires me to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that, where a non-citizen has engaged in serious conduct in breach of this expectation or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
2. Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
3. It also notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen's visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)-(f). Those particularised types of harm generally reflect the types of conduct identified in paragraph 8.1.1 as conduct which is considered 'very seriously' or as 'serious'.
4. The Applicant has transgressed both of the stated norms in paragraph 8.5 of Direction no. 110. He has done so repeatedly, frequently, and in a very serious manner by committing an act of domestic violence and other serious crimes against a woman. The norms 'apply regardless of whether the [Applicant] poses a [measurable] risk of causing physical harm to the Australian community'.[52]
5. Whilst there is a deemed expectation in favour of the Visa remaining cancelled, I must, nonetheless, consider what weight to give to that expectation in the Applicant's particular circumstances.[53]
6. In that respect I will approach this in the manner described by Justice Horan in RCLN v Minister for Immigration, Citizenship and Multicultural Affairs[54] at [50]-[59].
7. I have found that the Applicant poses an unacceptable risk of reoffending in a very serious way, and that there is a high likelihood that he will reoffend in other ways.
8. The Minister contends that this primary consideration weighs significantly against revocation.
9. The Applicant did not directly address this consideration, despite being given the opportunity to do so. However, it is reasonable to infer from the Applicant's other evidence and representations that he takes the position that, because of his long ties to Australia, low risk of reoffending, and the best interests of his children and other family remaining in Australia, the weight that might otherwise be given to this consideration should be moderated.
10. The Applicant has engaged in conduct in breach of community expectations. Given his extensive criminal history, the lack of independent evidence as to his rehabilitation or as to the rehabilitative effects of the courses he has undertaken, and the relatively limited level of community support that appears to be available to him, I consider that the risk of him engaging in such conduct in the future is at a level properly described as unacceptable.
11. In weighing this consideration, I am also guided by the principles in paragraph 5.2 of Direction no. 110. Paragraph 5.2(2) states that the safety of the Australian community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to paragraph 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
12. I am satisfied, given the seriousness of the relevant conduct and the Applicant's extensive and largely unbroken pattern of re-offending when in the community, that this consideration weighs significantly against revoking the Cancellation Decision.

1. In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

(a) legal consequences of the decision; > > (b) extent of impediments if removed; > > (c) impact on Australian business interests.

Legal consequences of decision under section 501 or 501CA

1. I must consider the legal consequences of the Cancellation Decision on the Applicant, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.[55] The Applicant claims that, if removed to Somalia he would be killed. He says that this happened to several members of his family there, including his mother. However, as I stated above, the Applicant is not the subject of a protection finding. Nor has he applied for a protection visa. On the authority of Plaintiff M1/2021 v Minister for Home Affairs[56], the Minister submits that any consideration of whether the Applicant is owed non-refoulement obligations can and, in the circumstances of this case, should be deferred because he is eligible to apply for a Protection Visa. I agree that such a complex assessment is best considered in a process focused on establishing facts about the relevant country of reference and assessing whether protection obligations are owed under the eligibility criteria at s 36. I will defer any assessment in that regard and proceed on that basis, but still take into account the uncertainty and distress that faces the Applicant in being removed to a country that has been known for a violent history and where he has lost members of his family to violence.
2. In the absence of a protection finding, there are a range of legal consequences for the Applicant of a decision not to revoke the Cancellation Decision, which include:

(a) the likelihood of him remaining in detention after his incarceration ends, pending his removal to Somalia;[57] > > (b) refusal of any other visa applications he has made and cancellation of other visas he may hold;[58] > > (c) a prohibition on the Applicant applying for other visas whilst in the migration zone, except for a protection visa or a bridging (removal pending) visa);[59] and > > (d) periods of exclusion and special return criteria may apply.[60]

3. Generally, if the Applicant's visa remains cancelled, he remains an unlawful non-citizen.[61] Under s 189, the Applicant must remain detained after his incarceration ends and be removed as soon as reasonably practicable under s 198.[62] On that basis, and in the absence of a protection finding, his ongoing detention should be short-lived if the Cancellation Decision is not revoked, and this does not weigh heavily in favour of revocation.
4. The legal consequences I have described follow as a matter of statutory construction, and it may be said that Parliament intended them to follow for so long as the person has the status of an unlawful non-citizen. However,

Parliament must also be understood to have intended that a cancellation decision mandated under s 501(3A) may be revoked under s 501CA(4) of the Act, resulting in the person's visa being restored. In that event, the adverse consequences described above will not befall them.[63]

5. Further. I note that it is the 'practical realities' in 'human terms' of the legal consequences that are important, rather than the legal consequences in the abstract.[64] I proceed on that basis.
6. I accept the Minister's submission that the removal and visa limitations which result from a decision not to revoke the Cancellation Decision are an intended consequence of the operation of s 501.
7. However, for the Applicant it would mean leaving all of his surviving family of birth, his wife and his three children, and returning to a country that has never, in a practical sense, been his home and that has a troubled history. He would have no realistic prospects of return to Australia to maintain his relationships. He has no network of supports in Somalia. Nor does he have contacts that could assist him to obtain housing or work.
8. Taking those factors as they pertain to the Applicant personally into account, I reject the Minister's submission that this factor should be given only modest weight. I will give this consideration moderate weight in favour of revoking the Cancellation Decision.

1. Paragraph 9.2 of Direction no. 110 provides that taking into account the matters identified in paragraphs 9.2(1)(a)-(c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under paragraphs 9.2(1)(a)-(c) are:

(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 the Applicant in their country.

2. The Minister submits that the Applicant is 35 years old and in apparently good health. The Minister contends that the Applicant will be able to establish himself and maintain basic living standards, noting he is relatively young, has a history of working and transferrable skills, and there are no substantial language or cultural barriers. Whilst a psychological report dated 20 October 2017 discussed the likelihood of the Applicant suffering from post-traumatic stress disorder from witnessing traumatic events in his early childhood, no such diagnosis has been made.
3. While accepting that the Applicant may face some impediments in permanently returning to Somalia, the Minister submits that they are not insurmountable, and that the weight the Tribunal should give this factor should not be allowed to outweigh factors in favour of not revoking the Cancellation Decision.
4. The Applicant did not make substantial submissions to the contrary, but I am nonetheless satisfied that, given his lack of any practical experience in living in Somalia and his lack of family and other ties there, the Applicant would face significant impediments in re-establishing and maintaining himself if removed.
5. I will attribute this consideration with moderate weight in favour of revocation of the Cancellation Decision in the Applicant's circumstances.

1. Paragraph 9.3 of Direction no. 110 requires the Tribunal to consider this issue, where relevant.
2. The Applicant notes that he has a history of work in Australia. He intends to return to bricklaying and hopes to start his own business or find work in mining if allowed to remain in Australia after his incarceration ends. Mr NA has now started his own business and has offered the Applicant employment as a bricklayer.
3. The Minister submits that neutral weight should be attributed to this consideration, given that there does not appear to be any impact on Australian business interests and the Applicant's 'employment link' does not fall outside the naturally contemplated consequences of the application of a revocation decision.
4. I note that:

...the consequence that an employer will lose the ability to engage the non-citizen if removed is something which will arise in a substantial majority of cases. Leaving to one side the expressly excepted circumstances of a person who was critically involved in the delivery of a major project or important service in Australia, the loss of the employment services of the non-citizen can usually be remediated by the engagement of another employee. In the context of determining whether that non-citizen should be granted a visa or have a cancellation decision revoked, the loss of their services could hardly be regarded as significant...[65]

5. In the absence of recent employment of the Applicant, evidence that his employment service is otherwise unable to be easily replaced, or evidence that he has engaged in business, I assess this consideration as neutral. It weighs neither in favour of, nor against revoking the Cancellation Decision.

1. The Applicant does not pass the character test under s 501 of the Act.
2. I have then weighed and balanced the relevant considerations in this matter as part of a single evaluation, to determine their relative significance and decide whether I am ultimately satisfied that there is 'another reason' why the Cancellation Decision should be revoked.
3. I have considered that paragraph 7(2) of the Direction states that the primary consideration in paragraph 8.1 (protection of the Australian community) is 'generally to be given greater weight than other primary considerations', and that, otherwise, the relevant 'primary considerations should generally be given greater weight than the [relevant] other considerations.' This is consistent with the principle at paragraph 5.2(2), that 'the safety of the Australian community is the highest priority of the Australian government.' However, this does not mean that the other considerations are secondary to the primary considerations, or that they should always be given less weight.[66] I have found no reason not to follow those qualified directions in this matter.
4. It was necessary, for transparency and due to the need to set this statement of reasons out sequentially to make it more accessible, to deal with each of the mandatory and other listed and otherwise relevant considerations in turn. However, I have considered whether there is another reason why the Cancellation Decision should be revoked in a holistic manner, having regard to all of the relevant considerations (viewed in the manner that paragraph 7 of the Direction says the listed relevant considerations are to be taken into account and weighed, and noting the import of paragraph 5.2).
5. I will not repeat the mandatory and other considerations and describing the weight and effect I am satisfied they should each be given in my assessment.
6. Having weighed the considerations in favour of the revocation of the Cancellation Decision and the considerations against revocation in that manner, I am satisfied that the considerations weighing against revocation, being the primary considerations of the protection of the Australian community, family violence committed by the non-citizen, and the expectations of the Australian community outweigh the considerations in favour of revocation, being the primary considerations of the strength, nature and duration of the Applicant's ties to Australia and the impact on minor children; together with, and the other considerations of the legal consequences of the decision and the extent of impediments if the Applicant is removed.
7. In summary, having regard to all of the mandatory and otherwise permissible considerations, I am not satisfied that there is 'another reason' why the Cancellation Decision should be revoked. The correct and preferable decision is to affirm the decision under review.

1. The Tribunal affirms the decision under review.

I certify that the preceding 230 (two hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Suthers

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

Ms M Scott for the Australian Government Solicitor

ANNEXURE A - TABLE OF THE APPLICANT'S OFFENDING

Carried (possessed) an article with intent to cause fear that someone

Driver to ensure passenger 16 years or more wears seatbelt

Common assault in circumstances of aggravation or racial aggravation

Person who breaches CRO or community order without reasonable excuse

Made threat/s to destroy, damage, endanger or harm property

No authority to drive - never held Aust lic & is disqualified

No authority to drive - never held Aust lic & is disqualified

Breach family violence restraining order (FVRO) or violence restraining order

Mdl disq s16/18: 3 months concurrent

Failed to comply with a requirement made by a police officer

[1] See Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 at [41], [48].

[3] Within the required 28 days of being notified of the cancellation: Migration Regulations 1994 (Cth) ('Regulations'), r 2.52(2)(b).

[4] Regulations 2.52(3) to 2.52(6).

[15] The Applicant's oral evidence indicated a larger family network in Australia than that disclosed in his Statement of Personal Circumstances but was not challenged.

[21] HB 509; In respect of one such occasion the Applicant said he found the medication whilst cleaning.

[23] [2018] FCAFC 116; (2018) 162 ALD 13, [64] (Colvin J).

[24] See, for example Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 ('Suleiman'), Minister for Home Affairs v HSKJ [2015] FCA 150; (2018) 266 FCR 591.

[25] [2023] FCAFC 138 ('CRNL').

[28] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121, 136 [66].

[29] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990, [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456, [119] (Halley J).

[33] Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104, [45].

[34] Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94; (2023) 412 ALR 502, [26] ('Kumar').

[37] [2022] FCAFC 19.

[39] CRNL, [28], [34]-[35], [37]-[38].

[41] Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, [27] (Brennan, Deane and Dawson JJ).

[43] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 ('HZCP-FC').

[44] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, unchanged by HZCP-FC.

[45] Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; 106 FCR 313, [43].

[48] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] (Moshinsky J); Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] (Kenny J).

[49] See Pickford v Pickford [2024] FedCFamC1A 249; (2024) 70 Fam LR 85, [41]-[44] (Aldridge and Carew JJ) (McClelland DCJ agreeing at [3]), [109] (Austin and Williams JJ in the minority); Cowgill v Minister for Immigration and Multicultural Affairs [2025] FCA 704, [52] (Vandongen J); MVPF v Minister for Immigration and Citizenship [2025] FCA 1263, [27]-[33] (Downes J); GNHW v Minister for Immigration and Citizenship (No 2) [2025] FCA 1578, [33]-[40] (Logan J).

[53] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, [100], [108]-[109].

[54] RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876.

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

[57] The Act, ss 189, 196, 198; noting the Applicant would not be removed whilst a valid protection visa application was being determined: Direction No. 110 paragraph 9.1(2).

[60] The Act, s 503, special return criteria (SRC) 5001.

[62] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313, [112]-[122] followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant's detention had at all times been lawful.

[63] Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143.

[64] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003, [5] (Feutrill J), cited in CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192, [60].

[65] Luckman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 851, [34].