Visa cancellation involving sexually based offence involving a child

Facts

He obtained his permanent visa in 2003. His criminal records ranged from 2010-2017 resulting in various terms of imprisonments involving violent and sexual conduct. His criminal conducts included being drunk in a public place, possession of drug, serious violence offences against police offers and emergency workers, breach of bail conditions, contravention of suspended sentence orders. Most recently, his sexually based offence involving a child involved two occasions of him going in front of 2 females and masturbating in front of them. 

On 15 December 2017, XMBQ’s subclass 200 permanent visa was cancelled whilst he was serving a term of imprisonment for the conviction of a sexually based offence involving a child. 

On first instance, the Tribunal had actually affirmed the decision to cancel his visa in April 2019 for the sexually based offences against a child and serving a term of imprisonment. XMBQ had successfully appealed this to the Federal Court of Australia where there was a direction for the Tribunal to reconsider the decision as it had failed to give meaningful consideration to the risk of harm to the applicant in Somalia when considering whether there is ‘another reason’ the decision should be revoked. This followed the decision of Minister for Home Affairs v Omar.

Tribunal’s Findings when remitted

The crimes of sexual and violent nature are viewed very seriously and his offending had a cumulative effect which were relatively frequent. The Tribunal accepted a forensic psychiatrist’s evidence that there was a moderate risk of offending which could be reduced to low if appropriate intervention and support was provided to XMBQ. 

Surprisingly, in considering what would be the expectations of the Australian community, the Tribunal found that the Australian community would afford a higher level of tolerance with respect to his past criminal behaviour and be willing to provide community and support services because he had arrived in Australia as a refugee at the age of 36 years and had acquired brain injury and trauma issues which he was not equipped to properly address at the time. 

The Tribunal then placed emphasis on the consideration of the harm he would suffer if returned to his home country (which was separate to a consideration of Australia’s non-refoulement obligations). The risk XMBQ would suffer could be summarised as follows:

• There is still the Islamic terrorist group, Al Shabaab, which continues to operate in Somalia. 
• As a Christian convert with mental illness and no clan affiliations or personal connections in Somalia, he presented a high risk of harm if he returned to Somalia. 
• It is accepted that Australia owes XMBQ a non-refoulement obligation. 
• If the visa cancellation were not revoked, then the legal consequence would be to remove him from Australia. The Tribunal takes into account that he would remain in detention whilst options were considered in light of the non-refoulement obligations and that it would seem inconsistent for the Minister to exercise any discretion in granting a further protection visa to him if he had earlier decided to cancel his visa. Therefore, it was concluded that the applicant had a real risk of suffering significant harm if the cancellation was not revoked. 

In weighing all of these factors, the Tribunal placed heavy weight on the risk of harm he would suffer and Australia’s non-refoulement obligations which had outweighed al of the other considerations which were against the revocation. 

XMBQ was therefore given a visa back despite his sexually based offence against a child, and other violent and sexual crimes. 

You may wish to find out more on our page relating to visa cancellation and refusals. 

Otherwise, if your visa has been cancelled, please email us immediately on [email protected].