CLKQ and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 231

CLKQ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 231 (6 March 2025)
Applicant/s:  CLKQ
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/10740

Tribunal:General Member J Papalia
Place:Perth
Date of decision: 6 March 2025

Date of written reasons: 20 March 2025
Decision:The Tribunal affirms the reviewable decision.

Statement made on 20 March 2025 at 4:10pm
........................................................................
General Member
CATCHWORDS
MIGRATION – visa cancellation – resident return visa – Mandatory cancellation under s 501(3A) of Migration Act 1958 – Where Applicant does not pass the character test –– Sexual penetration of a de facto child – whether there is another reason to revoke cancellation – consideration of Direction no. 110 – protection of Australian community –family violence – strength, nature and duration of ties to Australia –best interests of minor children in Australia – expectations of the Australian community –legal consequences of decision – extent of impediments if removed – delay on the part of the delegate – Applicant is a 45 year old citizen of PNG –– Reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 13, 14, 15, 36, 36(2)(a), 36(2)(aa), 36A(2), 46(1)(d), 189(1), 196(1)(a), 196(1)(c), 196(4), 196(5), 197C(2), 197C(3), 198, 198(1), 198(5A), 501, 501(3A), 501(6), 501(6)(a), 501(6)(e)(i), 501(7)(c), 501C(6), 501C(7), 501CA(3)(a), 501CA(4), 501CA(4)(a), 501CA(4)(b)(i), 501E, 501F, 503
Sentence Administration Act 2003 (WA) s 5A
High Risk Serious Offenders Act 2020 (WA) s 7(1)
Restraining Orders Act 1997 (WA)
Administrative Review Tribunal Act 2024 (Cth) ss 9, 54, 56(1)(a), 105
Criminal Code (WA) s 329(2)
CASES
Re ZNKS and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4223
Musgrave v State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17
R v Keogh (No 2) [2015] SASC 180; (2015) 255 A Crim R 546
Re Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256
State of Western Australia v Rayapen [2023] WASCA 55
State of Western Australia v Hansen (No 2) [2025] WASC 4
Re MBBG and Minister for Immigration and Multicultural Affairs [2025] ARTA 53
NT87/1652-56 and Commissioner of Taxation [1987] AATA 356; (1987) 87 ATC 1075
Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594
Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080
Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Re Graham Driver and Clare Ellen Moore and Minister for Immigration and Ethnic Affairs [1982] AATA 87
Mickelberg v Director of Perth Mint [1986] WAR 365 at 371
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121
Bennett v State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Re Kevin and Minister for Capital Territory (1979) 37 FLR 1; (1979) 2 ALD 238
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424
Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 866
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Stoneley and Minister for Immigration and Multicultural Affairs [2025] FCA 143
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005
ASF17 v Commonwealth of Australia [2024] HCA 19; (2024) 98 ALJR 782
Minister for Immigration and Multicultural Affairs v Abdi [1999] FCA 299; (1999) 87 FCR 280
Re 2003875 (Refugee) [2021] AATA 3222
BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1207
CRNL v Minister for Immigration, Citizenship and MulticulturalAffairs [2023] FCAFC 138
VZWF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1160
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – 1, 5.1(4), 5.2, 5.2(1), 5.2(2), 5.2(3), 5.2(4), 5.2(7), 5.2(8), 6, 7, 7(2), 8(1), 8.1, 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1(2), 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.2(1), 8.3(2)(a), 8.4(4), 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(4), 9.1(2), 9.1.2(2), 9.2(1), 9.3(1)
Migration Regulations 1994 (Cth) reg 2.52(2)(b), 5001, 5002
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – 8.3(4)(a)(i)
J Kostos and C Flynn, 'Father Absence Exploring the Experiences of Young People in Regional Western Australia' (2012) 37(4) Children Australia Journal
Statement of Reasons
The decision in this matter was made and provided to the parties on 6 March 2025 with a note that written reasons would be provided within a reasonable time.[1] These are those written reasons.
THE APPLICATION
[1] See Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 at [41], [48].

The Applicant seeks review of a decision not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return (permanent) visa (resident visa).[2] For the following reasons, the Tribunal has determined that the correct decision is to affirm the reviewable decision. In other words, the Tribunal has found that the resident visa should not be restored to the Applicant.
[2] Exhibit 1, G4, p 35.
BACKGROUND
The Applicant is a 45-year-old national of Papua New Guinea (PNG).[3] He first arrived in Australia as an adult on 18 July 2007 and as the holder of a temporary work (skilled) visa.[4]
[3] Exhibit 1, G24, p 232.
[4] Exhibit 1, G30, p 341.
In January 2010, the Applicant obtained permanent residency in Australia.[5] However, he regularly returned to PNG on an almost yearly basis until 2019.[6]
[5] Ibid.
[6] Exhibit 1, G30, pp 340 – 341.
In May 2019, Queensland Police were notified of concerns held that the Applicant may have sexually abused his then 17-year-old step-daughter. This prompted an investigation in both Queensland and Western Australia because the victim reported historical sexual abuse committed in this State between 4 March 2014 and 6 May 2016 and when the victim was under 16 years of age.
On 18 June 2021, the Applicant was convicted following a trial before Sharp DCJ and a jury in the South Hedland District Court of three counts of sexual penetration of a de facto child under the age of 16 and between 4 March 2014 and 6 May 2016, contrary to s 329(2) of the Criminal Code (WA).[7]
[7] Exhibit 1, T21, pp 1019-1020.
On 30 July 2021, the Applicant was sentenced by the District Court to a total effective sentence of 4 years 2 months’ imprisonment.[8]
[8] Exhibit 1, T20-T21, pp 1018-1020.
On 2 September 2021, the Applicant’s resident visa was mandatorily cancelled by a delegate of the Respondent (Minister) under s 501(3A) of the Migration Act 1958 (Migration Act) (the cancellation decision).[9]
[9] See Exhibit 1, G31, pp 336-342.
The Applicant was notified of the cancellation decision by hand and invited to make representations to the Minister requesting revocation of this decision. He requested revocation on 29 September 2021 (with a written request dated 16 September 2021) and submitted a personal circumstances form, submissions, and evidence in support.
On 13 December 2024, the Minister’s delegate refused to revoke the cancellation of the resident visa under s 501CA(4) of the Migration Act (the reviewable decision).[10]
[10] Exhibit 1, G4, p 35.
The Applicant was notified of the reviewable decision three days later, by email to his then authorised representative.[11] He sought review of that decision before the Tribunal by application dated 20 December 2024.[12]
[11] Exhibit 1, G3, pp 20 - 33.
[12] Exhibit 1, G2, pp 10-19.
LEGAL FRAMEWORK
The question for determination by the Tribunal is whether the decision not to revoke the mandatory cancellation of the Applicant’s resident visa is the correct or preferable decision on the material before the Tribunal.[13]
[13] Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’) ss 9, 54, 56(1)(a); See also Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, [140]-[143].
Section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i)the Applicant passes the character test (as defined by s 501); or
(ii)there is another reason why the mandatory cancellation should be revoked.
In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 (‘M1/2021’), the majority of the High Court described s 501CA(4) as conferring ‘a wide discretionary power’ to revoke a mandatory cancellation, if the decision-maker (whether the Minister, their delegate or the Tribunal on review of a delegate’s decision) is satisfied that there is ‘another reason’ why the cancellation should be revoked.[14] The majority held in the same paragraph that the assessment of whether there was, in fact, ‘another reason’ was to be undertaken by reference to the representations made by the Applicant.[15]
[14] M1/2021, [22].
[15] M1/2021, [22]. See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398, [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594, [6].
In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must comply with Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction)[16] given by the Minister under s 499(1) of the Migration Act.[17] Informed by the principles set out in cl 5.2 of the Direction, the Tribunal must take into account the factors identified in cls 8 and 9 of the Direction (to the extent relevant in the particular case) in deciding the application.[18]
[16] Direction cl 1.
[17] Direction cl 5.1(4); Migration Act s 499(2A).
[18] Direction cl 6.
THE HEARING AND THE EVIDENCE
The Applicant appeared in-person before the Tribunal over two days on 24 and 25 February 2025. The Applicant was self-represented and assisted by an interpreter in the Tok Pisin and English languages. The Minister was represented by Ms Gutmann of MinterEllison.
The following documents were marked as exhibits:
(a)Hearing Bundle, including the parties’ respective Statements of Facts, Issues and Contentions (SFICs) and supporting documentary material (Exhibit 1); and
(b)Department of Foreign Affairs and Trade, Country Information Report for Papua New Guinea dated September 2022 (DFAT Report) (Exhibit 2)
At the hearing, the Applicant was advised, in simple terms, of his right to invoke the privilege against self-incrimination prior to his giving evidence.[19] He was also provided an opportunity to respond to matters put to him and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under the Direction.
[19] See Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080, [64]-[65].
The Tribunal took oral evidence from the Applicant and his wife. The Applicant’s two sons, CK and SK, and two friends/former colleagues, DA and LJ, were not required for cross-examination. Their written statements (contained within Exhibit 1) were admitted on that unchallenged basis.
CONSIDERATION
Representations in accordance with invitation
Regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) (Regulations) prescribes that any such representations seeking revocation must be made to the Minister within 28 days after the person is given notice of the mandatory cancellation under s 501CA(3)(a) of the Migration Act.
As discussed at paragraph [8] above, the Applicant made representations seeking revocation of the Cancellation Decision within that timeframe on 29 September 2021.[20]
[20] See Exhibit 1, G5, p 36 [3]; HB1, pp 69-89.
Accordingly, the Tribunal is satisfied that the Applicant made representations in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act.
Character test
The Tribunal must decide whether the Applicant passes the character test as defined by
[21] See Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652, [40]. See also Direction, cl 5.1(3) and Annexure A.
[22] See Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666, [63].
s 501 of the Migration Act.[21] Failure to pass the character test arises as a matter of law.[22]
Section 501(6) of the Migration Act sets out that ‘a person does not pass the character test if…
(a) the person has a substantial criminal record (as defined by subsection (7))’ (emphasis in original).
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such offence, even if the person was discharged without conviction;
The term “substantial criminal record”, includes when ‘the person has been sentenced to a term of imprisonment of 12 months or more’.[23]
[23] Migration Act s 501(7)(c).
The Applicant was convicted by the District Court of Western Australia on 18 June 2021 of three counts of sexual penetration of a de facto child under the age of 16.[24] He was subsequently sentenced for that offending on 30 July 2021 to terms of imprisonment on each count that exceeded 12 months’ duration.
[24] Exhibit 1, HB3, pp 1019-1020.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test for the purposes of s 501CA(4)(b)(i) of the Migration Act based on the circumstances set out in both ss 501(6)(a) and 501(6)(e)(i).
Is there ‘another reason’?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the representations made by the Applicant, and to any relevant primary and other considerations contained within the Direction, there is ‘another reason’ why the Cancellation Decision should be revoked.
Further guidance as to how the Tribunal is to apply the considerations in the Direction to this question can be found in cl 7, which provides that:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2The 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.
3One or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
The Tribunal is required to consider whether the Australian community requires protection from harm said to have arisen from the criminal activity or other serious conduct engaged in by the Applicant to date and from any risk of such harm arising in the future.[25] This is a two-stage process, requiring consideration of both the nature and seriousness of conduct to date and the risk to the community if further offences are committed or the applicant engages in other serious conduct.[26] In addressing this overall question, the Tribunal is directed to ‘keep in mind that the safety of the Australian community is the highest priority of the Australian Government’ and to 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.[27]
[25] See Direction, cls 8(1) and 8.1.
[26] Direction, cl 8.1(2).
[27] Direction, cl 8.1(1).
Nature and seriousness of the conduct to date
The Applicant’s criminal history is comprised of the three charges set out on the indictment presented in the South Hedland District Court and for which judgments of conviction were entered by Sharp DCJ in June 2021. The Tribunal will deal with the essential facts of those convictions shortly.
The Applicant otherwise faces prosecution in Queensland stemming from events said to have occurred between 2017 and 2019.[28] At the time of the hearing before the Tribunal, an arrest warrant had been issued by the Pine Rivers Magistrate Court and the Applicant was expected to be extradited to Queensland following resolution of these proceedings.[29] There was insufficient evidence before the Tribunal for it to pass judgment on the pending charges. Moreover, the Applicant is entitled to the presumption of innocence and the matter is in the hands of the court such that it would not be appropriate for the Tribunal to do so in any event.[30]
[28] See Exhibit 1, S8, pp 410-419; HB6, pp 1051-1152.
[29] See Exhibit 1, HB6, p 1218 [3].
[30] See Re Graham Driver and Clare Ellen Moore and Minister for Immigration and Ethnic Affairs [1982] AATA 87, p 29 per Justice Toohey, Deputy President.
The Applicant accepted that his convictions for child sexual abuse are extremely serious in nature.[31] He, however, maintains that he is innocent of those crimes.[32]
[31] ASFIC, [22].
[32] ASFIC, [23].
The Minister, consistent with the guidance in cls 8.1.1(1)(a)(i) to (iii) of the Direction, contended that the Tribunal should find that child sexual offending is viewed very seriously by the Australian Government and the Australian community.[33]
[33] Closing submissions.
The Tribunal is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence are necessarily based.[34]
[34] Mickelberg v Director of Perth Mint [1986] WAR 365 at 371 (Burt CJ), 374 (Smith J) and 382 (Kennedy J); Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 (Ali) at [41].
Where the conviction and sentence are the foundation of the exercise of the power vested in the Minister by ss 501(3A) and 501CA(4) of the Migration Act, the Tribunal, when reviewing the Minister’s decision, may not impugn or ‘go behind’ either the conviction or sentence.[35]
[35] Ali (2000) 106 FCR 313 at [42]; HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121 (HZCP) at [63], [68], [71], [76]-[79] (McKerracher J), with whom Colvin J agreed at [179]; see also [181]-[196]).

It has long been held that weight to be given to any convictions which may be proved in subsequent civil proceedings is a matter for the administrative decision-maker.[36] However, the Tribunal cannot accept the Applicant’s contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying his conviction or sentence.[37] Moreover, the Applicant cannot advance a factual position that undermines the relevant sentence which gave rise to his visa being cancelled as ‘another reason’ why that cancellation should be revoked.[38]
[36] See Mickelberg v Director of Perth Mint [1986] WAR 365 at 383-385.
[37] See Ali (2000) 106 FCR 313 at [43]-[44]; HZCP (2019) 273 FCR 121 at [191].
[38] See HZCP (2019) 273 FCR 121 at [195].
For these reasons, the Tribunal rejects the Applicant’s evidence to the Tribunal that he did not engage in the sexual offending in Western Australia for which he has been convicted.
The record of the trial before the District Court provides the only reliable guide to the facts established by these convictions.[39] The indictment related to events between March 2014 and May 2016, when the Applicant’s step-daughter was between 12 and 14 years of age. The trial centred upon whether the State could prove beyond reasonable doubt that the Applicant had sexually penetrated this child on at least three occasions during that period.[40] Specifically, the State case was that counts 1 and 2 were representative of a course of conduct that were said to have occurred on several occasions.[41] Count 3 stood alone and was said to have been the last time that the alleged sexual penetration had occurred.[42]
[39] See Bennett v State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419 at [67] (Martin CJ, Mazza JA agreeing at [139]).
[40] See Exhibit 1, HB3, p 921.
[41] See Exhibit 1, HB3, p 1008.
[42] See Exhibit 1, HB3, pp 1008-1009.
The victim and the Applicant both gave evidence during the trial. The jury were directed by the trial judge to scrutinise the victim’s evidence carefully and that they could only give verdicts of guilty on any of the charges if they were satisfied beyond reasonable doubt of the truthfulness, accuracy and reliability of her evidence.[43]
[43]See Exhibit 1, HB3, p 922.
In support of the victim’s credibility, the State asked the jury to infer that the Applicant had made an admission to unlawful sexual conduct at a family meeting in May 2019.[44] It also led evidence, from the victim, to the effect that the Applicant had been spying on her and filming her when she was getting dressed, and engaged in other uncharged acts of sexual touching, which was said to demonstrate that he had a sexual interest in the victim and that he might act on that sexual interest if and when the opportunity arose.[45] However, the jury was directed by the trial judge that it could not use the victim’s evidence about the spying and other uncharged acts in deciding whether the State had proved the charges on the indictment.[46] That is, they could not reason, if they accepted the victim’s evidence in these respects, that because the Applicant had touched her on other occasions he therefore committed the alleged acts or that because he had touched her previously that he is the type of person that was likely to have committed the charges.
[44] See Exhibit 1, HB3, pp 876-878, 916, 942.
[45] See Exhibit 1, HB3, pp 926-928, 957.
[46] See Exhibit 1, HB3, p 959.
The Applicant denied all of the allegations, including that he had a sexual interest in his step-daughter. The defence case theory was that the victim was lying and that her lies were motivated by resentment towards her step-father derived from witnessing physical altercations between the Applicant and her mother in the family home; an admission made by the Applicant that he struck the child to the face in 2019 when she first brought allegations of this kind; and mental health issues.[47] So far as the “admission” at the family meeting in 2019 was concerned, it was put by the defence that this was only an admission to “abuse of a violent kind” (that is, the admitted slap to the face[48]), rather than an admission of sexual abuse.[49]
[47] See Exhibit 1, HB3, pp 619-623, 931, 934.
[48] See also Exhibit 1, HB1, p 271 [7].
[49] See Exhibit 1, HB3, p 936.
Following the jury verdicts, Sharp DCJ made the following factual findings on 30 July 2021:
Turning to the facts of the offending, after trial and based on the verdict of the jury, it is my finding that the relevant facts are all of the offending occurred on an unknown date between 4 March 2014 and 6 May 2016 at [town], and that you knew that the victim was your de facto child and that she was under the age of 16.
Specifically, in relation to count 1, the victim was in the lounge room watching television. While seated on the sofa you sat in front of her on the floor [and sexually penetrated her].
In relation to count 2, on a later date from count 1, you called the victim to come into your bedroom. When she entered the bedroom you got up and locked the door behind her. The victim was lying on the bed and you lay down next to her. At the time, the victim was wearing leggings and a school skirt – shirt. While lying next to her you put your hand down her pants and pulled her leggings off. You then [sexually penetrated her].
And, in relation to count 3, the victim said incidentally that this was the last time you touched her sexually, the victim went to your room. She was lying on the bed. She was on her back and you began kissing her legs and opening them. You then [sexually penetrated her].
The trial judge observed that the seriousness of the offending was reflected by the statutory maximum penalty of 20 years’ imprisonment and that the major sentencing considerations were general and personal deterrence.[50]
[50] Exhibit 1, HB3, pp 1012-1013.
Regarding aggravating factors, his Honour found that the offending was made more serious because it was a continuing course of conduct over a span of six to twelve months and because of the significant breach of trust arising from the parental relationship and because the victim was 12 years old.[51]
[51] Exhibit 1, HB3, p 1013.
The trial judge remarked:
And the offending ceased to occur, not because you stopped, but rather because she took steps to make sure that you didn’t have the opportunity to continue. I’m of the view that this offending is in the middle range of the scale of offending of this type.
…
[The Applicant], sexual offending involving children is considered to be incredibly serious because of the destructive effects of such offending on the child, whether or not the offending is accompanied with violence. The need to protect children from this sort of behaviour is paramount and also the need to deter others from behaving in this way.
The Applicant contended that his offending was not frequent or increasing in seriousness and that there was no evidence he, in fact, targeted children.[52] He pointed out that he had complied with his bail obligations and will the prison and immigration detention disciplinary regimes.[53] He also contended that his offending was not violent but accepted that it could be considered violent given that it involved sexual penetration.[54]
Overall finding – nature and seriousness of conduct to date
[52] ASFIC, [37]-[39].
[53] ASFIC, [39].
[54] ASFIC, [44].
The Tribunal finds the offending to be very serious. It was frequent between March 2014 and May 2016. It ceased because the victim took steps to prevent opportunities for it to occur from arising. It was inferred by the District Court that the offending would have had a significant impact on the victim and her development. The Tribunal unquestionably accepts this to have been the case. The objective seriousness of this course of conduct is also reflected by the sentences of immediate imprisonment imposed by the trial judge.
The Tribunal finds that that the Applicant’s conduct caused very serious harm to the victim and that this is harm to which the Government is committed to protecting against.
The fact that the Applicant was not warned about the consequences of such conduct for his migration status, or that he has otherwise been a law-abiding resident, is of no moment.
Risk to the Australian community should the Applicant engage in further conduct
The Tribunal is required to have regard to the future risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in such conduct.[55]
[55] Direction, cls 8.1.2(2)(a)-(b).
In making this risk assessment, the Tribunal is directed:
to have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases [and that] some conduct and the harm that would be cause, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
There is no statutory constraint on the way that risk is assessed by the Tribunal other than that there must be a rational and probative basis for the assessment.[56]
Nature of harm
[56] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41].
The Applicant accepted that “if [he] were to engage in conduct similar to that described in the conviction, it would be considered serious. [and indicated that he] fully acknowledge[d] the gravity of such actions.”[57]
[57] ASFIC, [30].
The Minister sought to embrace Senior Member Nikolic’s findings in Re ZNKS and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4223 at [46] to the effect that the harm arising from child sexual abuse “can be serious and long term” and that the nature of harm caused to the victim(s), or their families, is “potentially devastating”.[58]
[58] RSFIC, [30].
The Applicant has previously engaged in contact sexual offending against his teenage step-daughter. The Tribunal has already referred to the facts of that offending. This, without doubt, caused harm to the victim.
The Applicant is no longer able to repeat that conduct with the same victim. However, the Tribunal finds that repetition of such conduct against other minor children may cause similar harm (leaving to one side questions of opportunity and likelihood of repetition).
As this Tribunal has previously noted in this context and with reference to the Court of Appeal’s observations in Musgrave v State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17 at [7] per Quinlan CJ and [281]-[283] per Pritchard JA (original emphasis and citations removed):
[7] … Other than in the pages of the Criminal Code, sexual offences do not exist in the abstract. They are always, and in every case, a violation by one (or more than one) human being of another human being. And the impacts of such violations have on each individual victim are as many and varied as the individual experiences of victims themselves. To suggest that “all things being equal” one form of violation is inherently more serious than the other is incoherent because, when it comes to such matters, “all things are never equal”.
…
[281] …The criminality which is prohibited by the offence of sexual penetration without consent in s 325(1) of the Criminal Code is the exercise of dominion over another person by violating that person’s bodily integrity – an integral aspect of their human dignity – by the penetration of a part of their body (or by the manipulation of a part of their body so as to penetrate a part of the offender’s body) without their consent to that conduct. Conduct of that kind involves an abject disregard by the offender for the victim’s dignity as a human being, and for their autonomy and bodily integrity. From that perspective, it is not surprising that s 325 of the Criminal Code does not draw a distinction between the kinds of penetration (defined in s 319(1)) which may constitute a contravention of the section.
[282] The purpose behind the introduction, into the Criminal Code, of the category of sexual offences known as sexual penetration without consent was to equate conduct which had previously been treated as an indecent assault, with sexual intercourse. That much was made clear by the Minister, in her second reading speech on the introduction of the bill which amended the Criminal Code to include s 324F (the precursor to the definition of the phrase ‘to sexually penetrate’ in s 319(1)) in 1985. In her second reading speech on the introduction of that legislation, the Minister said:
A wider definition of "sexual penetration", modelled on New South Wales legislation, replaces the existing "carnal knowledge" definition for sexual assaults. Sexual penetration will include penetration of the vagina of any person or anus of any person by any part of the body of another person or an object manipulated by another person except where carried out for proper medical purposes and will also include activity generally described as fellatio or cunnilingus. This has the effect that the most serious forms of indecent assault are to be equated in seriousness with the more recognised forms of sexual intercourse or penetration.
[283] Nothing in the definition in s 319(1) or in s 325 of the Criminal Code suggests that any particular form of sexual penetration is, of itself, more serious than another. Consequently, a court should not commence its assessment of the seriousness of an offence of sexual penetration by making a judgment as to whether the sexual penetration in the case at hand is inherently more or less serious than any other form of sexual penetration. That is not to suggest, of course, that all offences of sexual penetration without consent will be equally serious. Rather, the seriousness of a particular offence will fall to be assessed by reference to all of the circumstances of the case, including the circumstances of the offender, any mitigating circumstances and any aggravating circumstances (including, but not limited to, any risk of pregnancy or contraction of an STI, whether fore was used, whether the victim suffered physical injury, any psychological effects suffered by the victim as disclosed in a victim impact statement, and so on).
The Tribunal otherwise respectfully endorses Sharp DCJ’s remarks to the effect that child sexual abuse notoriously has destructive effects on the child regardless of whether the offending is accompanied by violence.
Likelihood of re-offending
The Applicant contended that he would “never engage in any conduct that could harm others” and that he had “successfully completed psychological assessments, anger management courses, domestic violence awareness training, and substance abuse rehabilitation” to ensure that he was equipped with the skills to ensure this.[59] He claimed the risk that he posed to the Australian community was “minimal”.[60]
[59] ASFIC, [20(b)].
[60] ASFIC, [21].
The Minister contended that the Applicant’s risk remained the same as it was when he committed the indictable offences and that this was an unacceptable risk.[61] Relevantly, it was accepted that there had been some participation in courses, but it was noted that this was not ongoing.
[61] Closing submissions.
It was submitted by the Minister in closing submissions that the Tribunal should be cautious in accepting the Applicant’s evidence because:
(a)the Applicant’s oral evidence to the Tribunal was made with the assistance of speaking notes. At times, this oral evidence was verbatim of what was contained in the Applicant’s SFIC, which was prepared with the assistance of his wife. When the Applicant attempted to answer questions without such assistance, he appeared to struggle.
(b)So far as the Applicant’s wife was concerned, her evidence sought to downplay the Applicant’s responsibility for the sexual offending and for domestic violence committed against her (discussed further in the context of family violence below).
The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate.[62] The procedural flexibility accorded to the Tribunal does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide.[63]
[62] ART Act, s 52.
[63] See Re Kevin and Minister for Capital Territory (1979) 37 FLR 1; (1979) 2 ALD 238, 242-3 [12]; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, 257.
In R v Keogh (No 2) [2015] SASC 180; (2015) 255 A Crim R 546, Justice Blue summarised the relevant principles concerning when a witness may be permitted to revive or refresh their memory in court from a documentary record (including notes) at [22] to [53]. The fact that some of the Applicant’s oral evidence to the Tribunal was prompted by a written aide is relevant to weight to be given to it.
The Tribunal, respectfully, did not find the Applicant or his wife to be compelling witnesses. Their evidence was largely and understandably about the consequences of the Applicant’s removal from their lives, including the loss of his employment income and the impact on their sons. There were aspects of the Applicant’s evidence which was problematic, particularly with respect to family violence (discussed below). The wife is clearly in a difficult position and has chosen her husband over her daughter. However, the Tribunal’s risk assessment in this matter has largely been based upon the documentary evidence, including the psychological or actuarial assessments that have been conducted to date.
The trial judge was provided with two pre-sentence reports (PSRs) which are not before the Tribunal. Relevantly, this included a psychological PSR dated 21 July 2021 and prepared by a Ms Lynn.[64] It appears that Ms Lynn assessed the applicant to be a low risk of re-offending.[65] The trial judge remarked that:
In terms of you risk of reoffending, the psychological report states that while you continue to deny this offending, you have acknowledged problems relating to your coping behaviour during the offending period and that you perpetuated domestic violence.
The author of the psychological report states that you present with patriarchal sentiments and practices, and that you externalised blame towards your wife when you were frustrated with managing family and financial matters. The author of the report places you at a below average risk of reoffending in a similar manner, and I agree with this assessment and place your risk of reoffending to be low.[66]
[64] Exhibit 1, HB3, pp 1006, 1012.
[65] Exhibit 1, HB3, p 1008.
[66] Exhibit 1, HB3, p 1014.
The Applicant was assessed by Corrective Services in respect of his outstanding treatment needs in late 2022 and using the Level of Service/Risk Needs Responsivity (LS/RNR) and Static-99 actuarial assessment tools in respect of both general offending and sexual offending needs, respectively.[67] The Applicant is recorded by the State as having medium risk/needs for general offending and moderate/below average needs for sex offending.[68] Relevantly, the author of that treatment assessment report notes that:
[The Applicant’s] composite assessment [for sex offending] placed him in Level II for supervision and intervention. Individuals places in Level II are considered to be Below Average risk of sexual reoffending. Clinically significant treatment needs were identified in regard to Significant Social Influences. Other treatment needs were noted in regard to Hostility toward Women, Impulsivity, Sex Drive/Sexual Preoccupation, Sex as Coping, and Deviant Sexual Interests.[69]
[67] See Exhibit 1, HB3, pp 505-509.
[68] Ibid.
[69] Exhibit 1, HB3, p 508.

The author also observed, by reference to the psychological PSR prepared by Ms Lynn, that the Applicant had been considered:
not eligible to receive specialist sex offender treatment through the Department of Justice given his denial and would likely be deemed low priority for pre-requisite denier’s treatment given his estimated risk and low level of outstanding dynamic risk issues.[70]
[70] Ibid.
The Applicant underwent assessments for parole purposes in June and July 2023.[71] In the Adult Community Corrections’ parole assessment it was noted that the Applicant:
…completed the Basic Alternative to Violence Programme in November 2022 stating that he gained understanding on how some of his behaviours have impacted his relationship with his wife and children. When asked to expand on his understanding, he advised that he needed to be ‘more aware of their feelings’.[72]
[71] See Exhibit 1 HB3, pp 501-504; 514-520
[72] Exhibit 1, HB3, p 502.
Bunbury Regional Prison relevantly noted in their subsequent parole report that he had been employed in the Skills Workshop since August 2022 and was an “above average worker” with a generally positive behavioural record.[73]
[73] Exhibit 1, HB3, p 517 [7.3]- [7.5].
The Applicant completed the Advanced Alternative to Violence Workshop in June 2023.[74] He subsequently completed an Anger Management course in mid-2023.[75]
[74] Exhibit 1, HB3, p 517 [8.3].
[75] See Exhibit 1, HB3, pp 1092-1097.
The Applicant was asked during the hearing about what he learned from the violence workshops/peaceful pathways programmes in prison. He said that they covered topic such as resolving disputes without aggression and learning assertive and non-assertive forms of communication to prevent disagreements turning into major conflicts.
On 8 August 2023, the Prisoners Review Board of Western Australia granted the Applicant conditional release on parole pending confirmed suitable accommodation and transfer of parole to Queensland.[76] In the event, the Applicant’s home address in Queensland was found not to be suitable and he was not released on that order until 22 April 2024.[77] The parole order expires on 12 September 2025.[78] The Tribunal also notes that there is a final family violence restraining order in force, for life, with respect to the victim.[79]
[76] Exhibit 1, HB3, p 1249.
[77] Exhibit 1, HB3, pp 502, 521-527; ASFIC, [11].
[78] Exhibit 1, HB3, p 521.
[79] See Exhibit 1, HB3, pp 404-405, 1019-1020.
With respect to the parole order and the reasoning of the Prisoners Review Board under s 5A of the Sentence Administration Act 2003 (WA), the Tribunal agrees with the reasoning of Deputy President Boyle in Re Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256 at [75]-[77]. It nevertheless accepts that the parole order will provide some measure of community protection for the period it is in force.
The Applicant provided a letter of support from the Anglican chaplain at Bunbury Prison, Rev Father Newing OAM, dated 13 February 2022.[80] The reverend indicates in this letter that he met the Applicant in September 2021 when he arrived at the prison and that the Applicant was a regular attendee at mass thereafter, with a good prison record. The reverend also opines that there “is some doubt about the allegations that led up to this trial”. That opinion appears to be premised upon the Applicant’s professed faith and the consequences of the Applicant’s incarceration for the rest of the family unit (including the Applicant, his wife and two sons but not including the victim). The Tribunal does not accept the reverend’s opinion about the existence of any doubt concerning the Applicant’s convictions.
[80] Exhibit 1, HB1, p 187.
The Applicant engaged the services of a psychologist, Ms Lomas in May 2024 due to his outstanding charges in Queensland.[81] He testified that this treatment was abandoned due to financial constraints.[82]
[81] Exhibit 1, HB1, pp 255-256.
[82] See also ASFIC, [51(d)].
The Applicant separately engaged another psychologist, Associate Professor Yoxall, to provide the delegate with an assessment of his risk of re-offending.[83] Dr Yoxall records in her report dated 12 August 2024 that the Applicant scored relatively highly on testing for impulsivity.[84]
[83] Exhibit 1, HB1, p 258 [1.1].
[84] Exhibit 1, HB1, pp 281-282.
In terms of formal risk assessment, the report observes:
Assessment of the likelihood of reoffending is complex at best. The scientific literature in this area indicates that risk assessment should consider static (unchangeable), and dynamic (changeable) factors alongside protective factors when considering an individual’s risk of reoffending. There are various measures available that provide an actuarial basis to estimated risk, but these should be used in conjunction with structured clinical judgment.
No risk assessment will result in a zero or no risk of reoffending. This is because human behaviour is complex and given a certain set of circumstances and variables, any and all individuals will present with some level of risk of offending in some manner. However, for most, this is a very low risk and they will likely never offend in their life. For those that have already offended, the risk can also be very low, and they may never reoffend in their life, but their risk of reoffending will also not be zero.
Dr Yoxall thought that the Applicant had a low level of risk of general re-offending using her professional judgment and the LS/RNR actuarial tool.[85] Similarly, in terms of sexual re-offending, and applying both structured professional judgment and the Static-99 tool, Dr Yoxall thought the Applicant was in the “low risk category”.[86]
[85] Exhibit 1, HB1, pp 284-287.
[86] Exhibit 1, BH1, p 288.
It was inferred that there was a degree of sexual deviance present given the Applicant’s convictions involved offending against a 12–14-year-old.[87] Substance abuse was also a factor linked to risk of re-offending which was present in the offending.[88] The Tribunal notes that the Applicant told it, both orally and in writing, that he had taken steps to reduce his alcohol consumption.[89]
[87] Exhibit 1, HB1, p 289.
[88] Exhibit 1, HB1, p 291.
[89] See ASFIC, [52]
In terms of the Applicant’s denials and attitudes towards sexual violence, Dr Yoxall notes:
There is no clear evidence supporting this factor’s ability to predict future sexual violence, although it predicts general criminality in sexual offenders (Hanson & Bussiere, 1996). According to professional reviews, it is an important factor to consider in clinical evaluations of risk (Greer, 1991; McGovern & Peters, 1988; Ross & Loss, 1991). This factor likely is a risk marker that reflects the presence of personality disorder or attitudes that support or condone sexual violence. It probably is associated with the likelihood and frequency of future sexual violence.
…
People who engage in criminal conduct frequently endorse socio-political, religious, (sub)cultural, and personal attitudes that support or condone their behaviour (e.g., Andrews & Bonta, 1994). Insofar as beliefs or attitudes can be used to minimize or deny past offences, this risk factor overlaps conceptually with the previous one (item 17). There is no clear evidence supporting this factor’s ability to predict future sexual violence (Hanson & Bussiere, 1996), but some professional reviews deem it an important factor to consider in clinical evaluations of risk (Greer, 1991; McGovern & Peters, 1988). This factor is causally related to future sexual violence. According to some social-psychological theories, certain attitudes may influence the decisions made by individuals who are considering sexual violence, reducing the perceived likelihood of severity of harm to self and others. Alternately, attitudes may be a risk marker that reflects the presence of sexual deviation, personality disorder, or extreme minimization or denial of past sexual offences. This risk factor probably is associated with the likelihood and frequency of future sexual violence; the specific attitudes may be related to the nature and severity of any violence.
It is not clear if this factor is present.
…
The SVR-20 does not allow for the definite prediction of sexual violence. Prediction of risk is summarized using a rating of low to moderate. In consideration of all available information, I would consider [the Applicant’s] risk of reoffending to be low to moderate. This is largely because he denies all offending and thus it is not possible to determine precipitating or perpetuating factors to the offending.[90]
[90] Exhibit 1, HB1, pp 296-298.
Lastly, there was a risk assessment for domestic violence completed, however this was premised on the basis that this was comprised solely by one of the Queensland charges and by a verbal altercation between the Applicant and his wife in 2010.[91]
[91] Exhibit 1, HB1, pp 298-299.
Dr Yoxall concludes in her report that:
[The Applicant] experienced several adverse childhood events that impacted his attachments, self-worth, and capacity for psychological and emotional awareness, compounded by cultural factors promoting patriarchal ideas.
Despite these challenges, there is no indication of inherent antisocial tendencies, personality dysfunction, disorder, or psychopathy. Before his offences, he had a history of hard work, providing for his family, and prosocial behaviour.
[The Applicant’s] initial offending occurred in the context of stress and alcohol misuse…
[The Applicant] denies the sexual offending…
The current assessment of his situation is complicated by his denial, making it difficult to determine the precipitating or perpetuating factors and to identify his offending pathway. Therefore, appropriate intervention to address criminogenic factors is difficult to determine. The only identifiable factors are inadequate coping, stress management, and alcohol misuse, which do not fully explain his offending.
This lack of information also affects the assessment of his risk of reoffending.
[The Applicant] responded to exposure to the criminal justice system, prison, and detention with compliance, and patience.
These events have permanently changed his family, causing grief and loss for all involved. His wife has remained supportive despite the devastating impact on the family.
Intervention should focus on stress management, which he has shown improvement in, and avoidance of alcohol, which seems feasible. His domestic violence history is related to emotional regulation, stress management, and alcohol use. If he manages these issues, the likelihood of domestic violence reoffending is most likely low, provided he does not misuse alcohol. However, this is a tentative conclusion due to the lack of full understanding of all factors contributing to his offending. This risk to those outside the family is low, and the risk to his sons and wife is also low.
The Applicant denied being on a sex offender register during the hearing, however records from Corrective Services before the Tribunal clearly indicate that he is on the Australian National Child Offender Register (ANCOR) and that this was explained to him in June 2024.[92] ANCOR allows law enforcement in each state and territory to record and share information to meet their requirements under respective child protection legislation. Similar to the parole order, the supervision and involvement of the authorities affords some measure of community protection.
[92] See Exhibit 1, HB3, p 522.
The Tribunal does not accept that the Applicant has any real remorse or insight into his offending. As the Court of Appeal observed in the State of Western Australia v Rayapen [2023] WASCA 55 at [141]–[142]:
Remorse is not to be equated with an offender’s regret over the consequences for themselves and their non-victim family members (including any consequences for themselves under the criminal law) of their actions. It is, rather, the genuine regret for the wrong itself, penitence and contrition for that wrong and a desire to atone. As the Court of Appeal in Victoria said in Barbaro v The Queen:
A distinction must be drawn between the anguish of being caught and punished, on the one hand, and – on the other – the determination to change one’s behaviour and, to the extent possible, make amends. The first is not remorse at all. The second is. This is clear when one goes to the dictionary definitions of the word ‘remorse’ and the words associated with it. ‘Remorse’ is defined in, respectively, the New Shorter Oxford Dictionary and the Macquarie Dictionary as ‘deep regret and repentance for a wrong committed’ and ‘deep and painful regret for wrongdoing; compunction’. The word ‘compunction’ in turn is defined in those two works, again respectively, as ‘pricking or stinging of conscience or the hear; uneasiness of mind after wrongdoing; remorse’ and ‘uneasiness of conscience or feelings; regret for wrongdoing or giving pain to another; contrition’.
Being a matter relating to the moral conscience of the offending, remorse is not something that can be perceived by a court. Rather, a finding that an offender is remorseful, and the degree to which the offender is remorseful, are matters that must be inferred from other facts, including the words and conduct of the offender.
Whilst the Applicant appears, on one level, to understand the relevance of his alcohol use to the offending, it is not clear that this factor had a determinative role to play historically or in terms of his future risk of offending. The Applicant told the Tribunal that he recently learnt about the effects of alcohol use on judgment, self-esteem and emotional reactions. However, the Applicant equally told the Tribunal that he “didn’t really have a problem with alcohol” and that he did not get cravings for it and had stopped using it in 2017. The Tribunal accepts that reduced alcohol consumption or abstinence would reduce the prospect of disinhibition and that it thereby relates to risk of re-offending.
The Tribunal finds, based on the evidence before it and summarised above, that the Applicant poses a low risk of re-offending in a sexual way. That risk assessment is not affected by the fact that similar offending is unlikely to be repeated against the victim (including because she is no longer a teenager or living under the same roof) or the fact that the Applicant has an offer of employment from a friend, Mr T, based in Australind.[93]
[93] See Exhibit, HB6, p 1162.
Conclusion on the protection of the Australian community
Child sexual abuse has destructive effects on children. The Tribunal has found the applicant poses a low risk of re-offending in a sexual way. The question that arises is whether that risk is “unacceptable”?
The Applicant sought to make something of the fact that the State had advised him in October 2024 that they had reviewed his case and decided not to refer him for consideration under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).[94]
[94] See Exhibit 1, HB3, p 1145.
A decision made by the State not to commence proceedings under the HRSO Act does not foreclose a finding by the Tribunal that the person is an unacceptable risk under the Direction. To be subject to restriction under the HRSO Act, the State must prove, “to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence”.[95] The principles relevant to this test was recently summarised by Justice Fiannaca in State of Western Australia v Hansen (No 2) [2025] WASC 4 (Hansen) at [19]-[49].
[95] High Risk Serious Offenders Act 2020 (WA), s 7(1),
The point to be made in this context is that the assessment of what is “unacceptable” under the HRSO Act is a question of judgment as to the nature and extent of the harm said to be in prospect and then whether a restriction order is “necessary”.[96] That evaluative judgment occurs in accordance with the provisions of that legislation and on the assumption that the person will be within the jurisdiction.
[96] See Hansen [2025] WASC 4 at [27]-[30], [34]-[39]; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 at [27]; Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359 at [165].
The Tribunal in this proceeding is asked to consider the Applicant’s risk to the community as part of the overall assessment to be made of whether there is “another reason” why the cancellation decision should be revoked. That is, whether the Applicant, as a constitutional alien, should be permitted to remain in Australia. The Tribunal does not consider whether conditions can or should be imposed on an applicant’s liberty to reduce the risk to the community. The Tribunal nevertheless accepts that the term “unacceptable” in cls 8.1.2(1) and 8.5(1) of the Direction connotes a similar balancing exercise to be undertaken, albeit in the context of the principles articulated at cl 5.2 of the Direction and in a very different statutory regime including where there is no statutory constraint on the way that risk is to be assessed (save that this must, of course, be taken into account in a logical and rational way).[97].
[97] See Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [100]-[104]; Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 866 at [53]-[66].
The risk of repetition of child sexual abuse in this case is such that it crosses the threshold where any risk of repetition is properly considered to be ‘unacceptable’ for the purposes of the Direction.[98]
[98] Direction, 8.1.2(2).
The Minister submitted that, if the Tribunal reached those conclusions, it should find that this primary consideration would weigh determinatively against revocation.[99]
[99] RSFIC, [16]; closing submissions.
The Applicant submitted that he posed minimal or no risk of re-offending and that this primary consideration did not weigh against him.
The Tribunal finds this primary consideration to weigh heavily against revocation.
Family violence committed by the Applicant
Whether family violence for the purposes of the Direction?
At the hearing, the Minister endorsed the Tribunal’s recent summary of principle in Re MBBG and Minister for Immigration and Multicultural Affairs [2025] ARTA 53 at [80]-[86].
It was put by the Minister that this primary consideration arose in this matter on two bases:
(a)the Applicant’s convictions involved family violence; and
(b)there is information or evidence from independent and authoritative sources before the Tribunal indicating that the Applicant has been involved in the perpetration of family violence, namely against the wife and the step-daughter.
The Applicant denies that he has engaged in family violence.[100] He accepted that his convictions met the definition of family violence within the Direction but argued that he did not intend to cause harm.[101] He also told the Tribunal that during the jury trial he made “some admissions regarding domestic violence incidents; however, due to the legal complexity [and pace] of the prosecution, [he] unintentionally admitted some aspects [he] didn’t fully comprehend at that time.”
[100] See ASFIC, [89]-[90].
[101] ASFIC, [92].
In terms of the information or evidence before the Tribunal:
(a)the Applicant gave evidence-in-chief to the jury that when they were living in [town] from 2013 there were arguments over finances between the Applicant and his wife.[102] He said that “[w]e had loud arguments, sometimes we had physical contact and stuff like that”.[103] He denied the allegations made by his step-daughter, in her VROI, that he used to beat his wife;[104] and that he dragged her (the daughter) out of her bedroom and into the hallway during an argument in 2014.[105] However, he testified to the jury that he struck his daughter once to her right cheek when she raised allegations about him spying on her.[106]
(b)in cross-examination before the jury, the Applicant accepted that there were loud arguments with his wife during 2014-2015, within earshot of the children and which would include physical contact, including striking his wife.[107] He reiterated that he had struck his step-daughter once to the face when she brought up the spying allegations and admitted to physically disciplining her “to certain boundaries”.[108] The Applicant was asked by the prosecutor whether he accepted that it was wrong to physically strike his wife during arguments. His response was “[y]es, something I’m not pleased about”.[109]
(c)in written material submitted to the Tribunal, both the Applicant and his wife denied that the Applicant had engaged in family violence. They specifically referenced an incident in May 2010 where WA Police were called to attend the family home due to an argument where a police order issued under the Restraining Orders Act 1997 (WA).
(d)The Tribunal was provided with two WA Police incident reports (070309 0350 13067 dated 7 March 2009 and 230510 0632 13513 dated 23 May 2010) under summons, which each indicated that police were called to attend the casino or the family home on those dates and after reports of family violence; police orders issued on each occasion.[110]
(e)the Applicant’s wife admitted in cross-examination before the Tribunal that when they were living in Western Australia they drank heavily and there were arguments between the Applicant and herself which included pushing/shoving. Notwithstanding that concession, the wife’s evidence was that she did not have concerns about future risk of violence because they had both “matured”.
[102] Exhibit 1, HB3, p 807.
[103] Exhibit 1, HB3, p 807.
[104] Exhibit 1, HB3, pp 807-808.
[105] Exhibit 1, HB3, p 810.
[106] Exhibit 1, HB3, pp 820-821
[107] Exhibit 1, HB3, pp 832-833.
[108] Exhibit 1, HB3, pp 832-835, 871.
[109] Exhibit HB3, p 838.
[110] Exhibit 1, HB3, pp 398-399.

The Tribunal finds that this primary consideration is relevant because the Applicant has been convicted of offences that involve family violence and there is also information or evidence before the Tribunal, from independent and authoritative sources (namely the District Court and the WA Police), indicating that he has been involved in the perpetration of family violence. That is, suggestive of the fact that he has perpetrated a series of assaults against both his wife and step-daughter. The Applicant was given procedural fairness in respect of that material because he was provided with the trial transcript and the WA Police records and cross-examined upon these issues. To the extent that the Applicant sought to walk-back his evidence before the jury about family violence, the Tribunal rejects his more recent evidence about the circumstances in which those concessions were made as being entirely self-serving and implausible.
Seriousness of family violence engaged in by the Applicant
Clause 8.2(1) of Direction no. 110 provides that the Government has “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia” and that the Government’s concerns “in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen”.
In assessing the seriousness of the Applicant’s family violence, the Tribunal notes that:
(a)there appears to have been multiple incidences of family violence committed by the Applicant from approximately March 2009 until May 2019 when he was confronted with the criminal allegations by the authorities.
(b)the cumulative effect of that family violence, constituted by physical and sexual assaults, should not be underestimated in terms of the impact on those involved, including the wife and all the Applicant’s children and notwithstanding that the wife and sons want the Applicant back in their lives.
(c)the Applicant has engaged in a series of rehabilitative courses[111] but generally does not accept his responsibility for the family violence-related conduct and has limited comprehension of the impact of that conduct on his family, including his children. For example, the Applicant testified to the Tribunal about the effect his absence has had on his two sons. He was asked by the Minister’s counsel whether his offending set a good example, and he said he had told his sons that he was innocent of the sexual charges but had been convicted of it. He claimed to be unaware of whether they now maintained any contact with their half-sister. It seemed to the Tribunal, based on that exchange and the Applicant’s evidence generally (including his written submissions), to the effect that he had not engaged in family violence of any kind (save for “verbal arguments and stuff like that”), that the Applicant did not fully appreciate the corrosive effects of domestic violence on his wife and their children, including, at the lowest, their witnessing of the physical and verbal confrontations between him and their mother. Whilst there was contested evidence given before the jury about whether the step-daughter had directly witnessed the Applicant be physically violent with her mother, it is beyond question that the Applicant’s children would have heard the conflict between the Applicant and his wife within the family home during this period. The step-daughter gave evidence, in her VROI, that she did. The Tribunal infers that this must also have been the case for the two sons.
[111] See ASFIC, [80]-[84].
On the basis of the above, the Tribunal finds that the Government’s concerns about conferring the privilege of remaining in Australia on the perpetrators of family violence arise.
The family violence caught by this consideration in this case is very serious.
The Minister submitted in those circumstances that this primary consideration weighs significantly against revocation.[112] The Tribunal agrees and finds that this primary consideration weighs heavily against revocation in the Applicant’s circumstances.
[112] RSFIC, [38].
Strength, nature and duration of ties to Australia
The Tribunal is required to consider any impact of the decision on the Applicant’s immediate family members in Australia.[113]
[113] Direction no. 110, cl 8.3(1).
The Tribunal must also consider the strength, nature, and duration of any other ties that the Applicant has to the Australian community, having regard to how long he has resided in Australia,[114] and 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’.[115]
[114] Direction, cl 8.3(2)(a).
[115] Direction no. 110, cl 8.3(2)(b).
The Applicant’s immediate family in Australia consists of:
(a)his wife and two sons in Queensland;
(b)the step-daughter in Victoria; and
(c)an Aunt and her four adult children in Western Australia.
They are all permanent residents.
The last time the Applicant spoke to his Western Australian relatives was in 2021 prior to his conviction and sentence. Any impact of a decision in this case on them will be negligible.
The Applicant is not in contact with his 23-year-old step-daughter and is prohibited by a lifetime restraining order from communicating with her save through counsel. The daughter did not provide a victim impact statement to the District Court and there are also pending charges in Queensland. The Tribunal finds that she has clearly been adversely impacted by the offending and that the family unit is understandably estranged for that reason. On one level, the daughter might be financially impacted by an adverse decision in this case by reason of the consequential impact such a decision might have on her mother and brothers. The wife testified that there is limited direct contact in the immediate family with the daughter and that she understands that she is working and/or studying in Victoria.
The wife and sons have been adversely affected by the Applicant’s segregation from the Australian community. There is potential for further segregation by reason of the outstanding charges in Queensland. They have lost the benefit of his employment income and want him back in their lives. The evidence was to the effect that the Applicant and his wife, when they were employed, had been working on a FIFO basis such that there were regular absences from the family home. The wife worked as an engineer between February 2017 and March 2024. She is presently underemployed but testified that she was at an advanced stage of interviewing for an engineering position with Roy Hill in Western Australia. The family have been in financial strife since 2019.
The Applicant’s older son, CK (17), commenced tertiary studies in engineering at a Queensland university during the Tribunal hearing. He provided a series of letters/emails indicating that he wanted his father back in his life for a variety of reasons, including for financial reasons.[116]
[116] See Exhibit 1, HB1, pp 216, 218, 222; HB6, pp 1098-1101.
The Applicant’s second son, SK (14), is in Year 9. He was born in Australia. Like his brother, he clearly wants his father back and provided a statement indicating how his father’s absence has affected their lives, including the absence of a male role model to guide him and his brother through puberty, to witness significant events and the financial impact that his imprisonment or detention has had on their lives.[117]
[117] See Exhibit 1, HB1, pp 207-208, 210, 213-215, 218-220; HB6, pp 1147-1148, 1150.
The wife testified that, if the Tribunal made an adverse decision, they would need to consider whether to return to PNG with the Applicant or to stay in Australia. She said that she struggled to control the boys in her husband’s absence. It was clear from the evidence before the Tribunal that the Applicant and his wife would prefer that the family unit remain in Australia, including for the opportunities afforded to them and their children here and because they have established a home here.
The Tribunal finds that the impact of an adverse decision on the Applicant’s immediate family weighs in favour of revocation.
Turning to the strength, nature, and duration of any other ties, the Tribunal notes that the Applicant moved to Australia in 2007 and was employed between 2007 and 2019 as an automotive electrician. He acquired permanent residency in 2010. There was evidence that he had been participating in church and community activities prior to his incarceration. The offending did not occur until 2014 and the Tribunal gives weight to the positive contribution the Applicant made arising from his employment and charitable activity.
The Tribunal received references from the Applicant’s former colleagues and friends, LS, LJ, JS, DA and ST, which speaks to his work ethic.[118] The favourable prison and immigration detention reports also confirm that work ethic.
[118] See Exhibit 1, HB6, pp 1151-1153, 1159-1162.
The Tribunal also received a statutory declaration from the Applicant’s brother-in-law, which spoke to the impact of the Applicant’s potential removal from Australia on the two sons.[119] There was also evidence from the Applicant’s family in PNG about the potential impact that expelling the Applicant may have on them including by reason of the lost financial support and about the current circumstances in PNG.[120]
[119] See Exhibit 1, HB1, pp 181-183.
[120] See Exhibit 1, HB1, pp 188-191.
However, the Tribunal rejects the Applicant’s assertion that he has “no meaningful ties” to PNG.[121] The Applicant returned to PNG frequently prior to 2019, including sending money back to his family resident there. Further, he previously claimed to be the “Chairman of the PNG Association in [town]”, but this consisted of 20 people including the Applicant’s immediate family and the organisation ceased after about a year.
[121] ASFIC, [109(i)].
The Tribunal nevertheless accepts that the Applicant has built a life in Australia and that he has family and social links to this country.
The Applicant submitted that his ties to Australia outweighed any perceived risk to the community and that his potential expulsion would result in “unnecessary economic and social consequences.”[122]
[122] ASFIC, [110].
The Minister accepted that that this consideration weighed in the Applicant’s favour but submitted that it should not attract significant weight.[123]
[123] RSFIC, [44].
The Tribunal finds that this primary consideration, including the impact on the Applicant’s immediate family and his extended social and familial ties, weighs moderately in favour of revocation.
Best interests of minor children in Australia
The Tribunal is required to consider the best interests of minor children in Australia that are affected by the decision. Clause 8.4(4) of the Direction outlines the factors that the Tribunal must consider when determining the best interests of a child affected by the decision. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.[124]
[124] Direction, cl 8.4(3).
There are two relevant minor children:
(a)The Applicant’s 17-year-old son, CK; and
(b)The Applicant’s 14-year-old son, SK.
There is clearly an existing parental relationship. Each child turns 18 and 15, respectively, in June and July of this year. The Tribunal has already referred to their known views in the context of its consideration of the impact of a decision on the Applicant’s immediate family. There was evidence given to the Tribunal by the Applicant and his wife that they are now aware of the Applicant’s sexual offending, albeit in the context where they have been told by their parents that the Applicant is innocent of those crimes. Given their age and maturity, the Tribunal gives weight to the sons’ favourable views with respect to their father.
The Applicant has been physically absent from the sons’ lives since May 2019. Whilst the Applicant was on bail between June 2019 and July 2021, he was living in Western Australia when they were in Queensland. The primary impact on their lives seems to have been financial and emotional but there has been contact throughout this period. There is also the prospect of further physical separation arising from the outstanding charges in Queensland and the Applicant’s present parole conditions.
The Tribunal has some doubts about the extent to which the Applicant is likely to play a positive parental role in the future, noting that CK will be an adult in 3 months’ time in any event. Nevertheless, there is some potential for him to do so with respect to SK. The Tribunal accepts the evidence before it to the effect that the Applicant has, at times, had a positive effect on the boys’ behaviour and development in the home, including from a distance. The Applicant’s prior family violence in the home and his limited insight into its insidious nature, is, however, concerning. The mother/wife is supportive of the Applicant’s return to the family home in Queensland, but the State is not for the purposes of parole.
The wife has been fulfilling the parental role in the Applicant’s absence, and there was evidence to the effect that she has been struggling to provide for them in the Applicant’s absence.
There is no evidence that either son has suffered or experienced physical trauma arising from the Applicant’s conduct. The Tribunal infers that emotional trauma has been inflicted on each child by the Applicant’s offending against their sister and by his removal from the family home.[125]
[125] See also ASFIC, [104(a)].
The Applicant referred the Tribunal to a 2012 journal article called “Father Absence: Exploring the Experiences of Young People in Regional Western Australia” written by Janette Kostos and Catherine Flynn of Monash University.[126] The article in a Children Australia journal concerned a study of four 18- to 25-year-olds in regional Western Australia and it was noted that familial instability was associated with increased problem behaviour for those subjects. That may be accepted and the Tribunal notes that the authors make the point that “[i]t [was] clearly not the position of this paper that father presence or shared parenting is always positive.”[127] The authors’ conclude in the journal article that:
…findings from this small exploratory study seem to suggest that, whether viewed positively or negatively by the young person, father absence was perceived to be associated with negative psychosocial outcomes by the study participants. This general trend supports the finding of Glynn and Addaction (2011) that even though the causes of father absence varied, effects show considerable commonality, and young people typically perceive the effects to be negative. In the current study, these negative outcomes appear to stem more from the young person’s thwarted desire for a ‘normal’ family, to feel wanted, and for broader social acceptance (which included an involved and safe male figure) than for the direct presence/absence of a particular person. The continuing involvement of both maternal and paternal extended families was subsequently found to help mitigate father absence. As in other studies (Cummings & O’Reilly, 1997; Hetherington, 2006), ongoing parental relationship transitions were found to occur alongside severe psychological and behaviour problems for children. Some study participants report long-term relationship problems, such as conflict and an impaired capacity to trust, as a perceived result of their family outcomes. The emotional availability of mothers was found to be affected by new maternal relationships which, although found to be negative in the short term, can be positive in the longer term if the new family household remains stable. [128]
[126] ASFIC, [103(e)].
[127] Article p 1; Children Australia Journal, Vol 37, Issue 4, page 170.
[128] Article p 4; Children Australia Journal, Vol 37, Issue 4, page 174.
The Tribunal finds that it would be in both child’s best interests that the cancellation decision be revoked. SK’s interests carry slightly more weight than CK’s given he is still in high school.
The Applicant submitted that the best interests of both of his sons should weigh significantly in favour of revocation.[129]
[129] ASFIC, [107].
The Minister accepted that revocation would be in each child’s best interests and that those interests should be given weight against revocation.[130]
[130] RSFIC, [48].
The Tribunal finds, having regard to the factors in cl 8.4(4) of the Direction and the entire summary above, that the collective best interests of both children weigh moderately in favour of revocation.
Expectations of the Australian Community
The fifth primary consideration is a ‘kind of deeming provision’[131] which requires the Tribunal to consider the Minister’s articulation of community expectations.[132]
[131] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [76].
[132] Direction, cl 8.5(4).
Clause 8.5(1) of the Direction provides that ‘the Australian community expects non-citizens to obey Australian laws while in Australia’. The Direction goes on to state that:[133]
[w]here 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 such a non-citizen to enter or remain in Australia.
[133] Direction, cl 8.5(1).
Clause 8.5(2) then adds to that ‘norm’ and indicates that non-revocation may be appropriate in a particular case ‘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’. It specifies acts of family violence[134] and other conduct, such as violent or sexual crimes against women and children,[135] attract that further expectation.[136]
[134] Direction, cl 8.5(2)(a).
[135] Direction, cl 8.5(2)(d).
[136] See also Direction, cls 8.5(2)(a)-(f).
The Applicant did not obey Australian laws whilst he has been in Australia. He relevantly engaged in very serious offending and conduct about which the Tribunal has already made findings. The Tribunal considers that he poses an unacceptable risk of re-offending.
The Tribunal rejects the Applicant’s contention that it can consider notions of fairness, rehabilitation or family unity in a way that would make this primary consideration weigh in his favour.[137] Moreover, the Tribunal does not accept some of the premises behind the Applicant’s submission in this respect regarding demonstrated reform and the public interest.
[137] ASFIC, [112]-[113].
In assessing the weight to be given to the norms contained with the Direction, the Tribunal is guided by the principles articulated at cl 5.2 of the Direction. Specifically:
(a)remaining in Australia is a privilege conferred on non-citizens ‘in the expectation that they are…law-abiding, will respect important institutions…and will not cause or threaten harm to individuals or the community’;[138]
(b)the safety of the Australian community is the Government’s highest priority;[139]
(c)the Australian community expects that non-citizens that have engaged in serious conduct should be required to ‘forfeit the privilege of staying in Australia’;[140]
(d)the Australian community expects the Government to cancel visas if the holder engages in conduct that “raises serious character concerns … regardless of whether [they pose a risk] of causing physical harm to the Australian community’;[141] and
(e)whilst the Tribunal must consider the Applicant’s particular circumstances, the nature of some conduct, or the harm that would be caused if it were to be repeated, ‘may be so serious that even strong countervailing considerations may be insufficient to justify…revoking a mandatory cancellation’[142] and that policy position remains the case regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[143]
[138] Direction, cl 5.2(1).
[139] Direction, cl 5.2(2).
[140] Direction, cls 5.2(3)-(4).
[141] Direction, cl 5.2(4).
[142] Direction, cl 5.2(7).
[143] Direction, cl 5.2(8).

Having regard to the Applicant’s circumstances and the policy guidance articulated above, the Tribunal finds that this primary consideration weighs very heavily against revocation.
OTHER CONSIDERATIONS
Legal consequences of the decision
The Tribunal is required to consider the legal consequences of its decision.[144] That is, the Tribunal must have regard to the statutory framework in which the power to revoke a mandatory cancellation decision exists, including the direct and immediate consequences of an exercise of the power (including any decision to affirm the reviewable decision under s 105 of the ART Act).
[144] Direction, cl 9.1(1). See also NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1, [3], [9]-[10]; Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146, [84], [88].
There are three major consequences of visa refusal or cancellation under s 501 and related provisions:
(a)a prohibition on applying for other types of visas under s 501E of the Migration Act (other than a protection visa or a bridging (removal pending) visa);[145]
(b)refusal/cancellation of other visa applications/visas under s 501F of the Migration Act; and
(c)
the possible application of periods of exclusion and special return criteria under

s 503 of the Migration Act and SRC 5001 and 5002 in Sch 5 to the Migration Regulations. This includes permanent exclusion where SRC 5001 applies unless the Minister acts personally to grant a permanent visa to the person.
[145] See also Migration Act s 46(1)(d).
These adverse consequences can be avoided by a positive decision to revoke the cancellation decision and it should not be assumed that Parliament has evinced any preference as to the outcome of the review.[146]
[146] See Stoneley and Minister for Immigration and Multicultural Affairs [2025] FCA 143 at [36].
When the Applicant’s resident visa was cancelled, he became an “unlawful non-citizen”.[147] That is, a non-citizen in the migration zone that did not hold a visa that is in effect.[148] Because of that status (and the fact that he is an alien for constitutional purposes), the Applicant was liable to be detained under s 189(1) of the Migration Act. That occurred on 22 April 2024, when he was released from the state custody on parole.
[147] Migration Act, s 15.
[148] See Migration Act, ss 13-14.
The Applicant is relevantly required to be detained under the Migration Act until he is either removed from Australia under s 198 or he is granted a visa (including having his resident visa restored to him under s 501CA(4)).[149]
[149] Migration Act, ss 196(1)(a), 196(1)(c), 196(4)-(5), 501C(6)-(7).
The Migration Act would not authorise the Applicant’s continuing detention for the purposes of his removal if and for so long as there is no real prospect of removal becoming practicable in the reasonably foreseeable future.[150]
[150] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005 at [55]; ASF17 v Commonwealth of Australia [2024] HCA 19; (2024) 98 ALJR 782 at 784-785 [1], 788-789 [31]-[32].
The only basis upon which the statutory obligation to remove the Applicant under s 198 of the Migration Act would be stayed would be if the Applicant made a valid application for a protection visa.[151] The Applicant would then be required to be detained until either he has been granted that visa or his application has been finally determined. Refusal of that application on a final basis would re-enliven the obligation to remove, as would a separate request in writing made by the Applicant himself under s 198(1).
[151] Migration Act, s 198(5A).
The duty to remove an unlawful non-citizen under s 198 of the Migration Act arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.[152] However, the provision does not require or authorise a non-citizen’s removal to a country if during the course of a protection visa application there has been a protection finding made for the person with respect to the country.[153]
[152] Migration Act, s 197C(2).
[153] Migration Act, s 197C(3).
The criteria for a protection visa are found within s 36 of the Migration Act and Sch 2 to the Migration Regulations. In considering whether to grant or refuse a protection visa, the Minister must first give consideration to Australia’s protection obligations and make a finding whether the applicant satisfies either ss 36(2)(a) or 36(2)(aa) of the Act with respect to a country.[154]
[154] Migration Act, s 36A(2).
The Applicant is not presently the subject of a protection finding. He claims to be at risk of harm if returned to PNG because his wife and step-daughter’s family resident there will want “payback” as result of his convictions.
That protection claim was not well-developed. When the Tribunal asked the applicant about those fears, he told the Tribunal that there would likely be a physical confrontation at first and then probably a request for financial compensation thereafter. The Tribunal admitted the DFAT Report into evidence to assist it to understand the basis for the claim.
The Minister urged the Tribunal to defer consideration of Australia’s non-refoulement obligations in circumstances where the claim was not well-developed and noting cl 9.1.2(2) of the Direction and the High Cort’s decision in M1/2021 at [28]-[30].[155] The Applicant did not wish to comment on that proposal.
[155] RSFIC, [50]-[51].
The Tribunal agrees with the general proposition that it is not necessary when considering whether or not there is “another reason” under s 501CA(4) of the Migration Act, where that decision relates to a visa which is not a protection visa, to consider non-refoulement issues in the same level of detail as when they would be considered in a protection visa application.[156] The process for determining protection visa applications is specifically designed for consideration of those issues, and the relevant provisions of the Migration Act reflects Australia’s interpretation of non-refoulement obligations and the scope of those obligations that Australia is committed to implementing.[157]
[156] See Direction, cl 9.1.2(2).
[157] See Direction, 9.1(2)
The Applicant understood that if he was not successful in this proceeding, he could apply for a protection visa and indicated that he would give consideration on whether to do so.
The Tribunal accepts that the Applicant’s articulated fear of harm may give rise to a non-refoulement obligation (specifically, on a complementary protection basis) which requires consideration.[158]
[158] See Exhibit 2, DFAT Report, p 2; Minister for Immigration and Multicultural Affairs v Abdi [1999] FCA 299; (1999) 87 FCR 280 at [44]; Re 2003875 (Refugee) [2021] AATA 3222 at [121]-[124].
The prospect of consideration of Australia’s international obligations may increase the likely length of the Applicant’s potential immigration detention in the future. The Minister otherwise contended that there would be unlikely to be any practical difficulties in removing the Applicant to PNG, should he not be successful in this proceeding.[159] The Tribunal notes that the Applicant is required to be dealt with in Queensland for the outstanding criminal charges.
[159] RSFIC, [52].
The Applicant has been in state custody for some 3.5 years and immigration detention since April 2024. The Tribunal accepts that this has been hard for the Applicant and his family. He had previously established a life in Australia and some of his immediate family reside here.
For those reasons, the legal and other consequences of the Tribunal’s decision weigh in favour of revocation.
Extent of impediments if removed
The Tribunal must consider the extent of any impediments that the Applicant may face if removed from Australia to PNG, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens in that country), taking into account the Applicant’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in PNG.[160]
[160] Direction, cl 9.2(1)
The Applicant is 45 years old. He is in good health, save for suffering from arthritis in the right knee, which he is managing with regular physiotherapy and exercise.[161] He is not on any medication.[162] He has an extensive work history in PNG and Australia as an automotive electrician.[163]
[161] Evidence on 24 February 2025; See also Exhibit 1, HB3, p 518 [11].
[162] Ibid.
[163] See ASFIC, [56].
The Applicant came to Australia as an adult and has family in PNG. He has returned there regularly and maintains contacts in that country. There are clearly not substantial language or cultural barriers.
The Tribunal accepts that the Applicant’s sister has given a statement to the effect that their family in PNG has limited resources and are dependent on Australian-based financial support.[164] She also expresses an opinion about the availability of employment and the potential for harm to be directed at the Applicant because of his offending.[165]
[164] See Exhibit 1, HB1, p 189 [15]-[24]
[165] Exhibit 1, BHB1, p 190 [30]-[32].
The DFAT Report notes that PNG is a “poor country”, with no formal welfare system.[166] There is notably considerable reliance on social kinship.[167] PNG has “some of the worst health indicators in the Asia-Pacific”,[168] and access to proper healthcare is challenging.[169] Crime is also very common.[170]
[166] Exhibit 2, p 8 [2.8], [2.10].
[167] Exhibit 2, pp 4, 8 [2.10].
[168] Exhibit 2, p 9 [2.16]
[169] Exhibit 2, p 9 [2.17].
[170] Exhibit 2, p 11 [2.26].
The Minister accepted that the Applicant would face practical, financial and emotional hardship if returned to PNG due to separation from his immediate family and limited or reduced access to healthcare.[171]
[171] RSFIC, [57].
The Tribunal finds that the Applicant could likely re-establish himself and maintain basic living standards. However, having regard to the prevailing circumstances in PNG and the fact that the Applicant has established a life in this country with the reasonable prosect that his immediate family may not return with him, this consideration weighs in favour of revocation.
Impact on Australian business interests
There is no evidence before the Tribunal of any Australian business interest that will be impacted by a decision not to allow the Applicant to enter or remain in Australia.[172] The Applicant has a job offer in Australind, but this potential employment link does not have any real significance. Consequently, this consideration weighs neither for nor against revocation.
[172] See Direction, cl 9.3(1).
Delegate’s delay
The Applicant complained about the 3-year 2-month delay between the original cancellation and the delegate’s decision.[173] This delay was unexplained by the Minister.
[173] ASFIC, [115]-[116].
There was no apparent reason for the delegate’s failure to grapple with the Applicant’s representations prior to December 2024, particularly when the Applicant was granted conditional release on parole in August 2023 (even if his release from prison did not in fact occur until April 2024). The Tribunal has already considered the impact of its decision on the Applicant’s immediate family. The Tribunal notes that the delegate was required to decide whether to revoke the cancellation decision within a reasonable period.[174] The Applicant was legally represented during that period and could have, but did not seek, mandamus.
[174] See BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [25] and the analysis in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1207.
The Tribunal agrees with Senior Member Roach in NT87/1652-56 and Commissioner of Taxation [1987] AATA 356; (1987) 87 ATC 1075 at [22] that “justice is most likely to be done if disputed matters are promptly determined; and that [the] community benefits when disputes are promptly resolved.”
However, the Tribunal does not consider that the delay in this matter caused prejudice to the Applicant in the review or that he was materially prejudiced by changes in the governing policy directions made by the Minister during that period. Each of Directions 90 and 99 placed particular emphasis on family violence. Whilst the strength, nature and duration of ties to Australia was elevated to being a primary consideration in Direction 99, the favourable guidance at cl 8.3(4)(a)(i) of Direction 99, which is not present in Direction 110, provided that “considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending”. The Applicant is not such a person. The elevation of this primary consideration otherwise favoured the Applicant.
The delay occasioned by the delegate did not provide a compelling reason to revoke the cancellation decision.
CONCLUSION
The Tribunal is required to bring together the relevant considerations in this matter and consider, as part of a single evaluation, their relative significance in terms of whether the Tribunal is ultimately satisfied that there is ‘another reason’ why the mandatory cancellation decision should be revoked.[175]
[175] See CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [27]-[28]; VZWF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1160, [8].
Clause 7(2) of the Direction states that the primary consideration in cl 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 guidance is consistent with the principle articulated at cl 5.2(2), that ‘the safety of the Australian community is the highest priority of the Australian government’. The Tribunal notes that this guidance does not mean that the other considerations are secondary to the primary considerations, or that they should always be given less weight.[176]
[176] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545.
The Tribunal has considered the relevant considerations in this matter and determined that there is not ‘another reason’ to revoke the cancellation. Those factors which weigh against revocation, particularly the consideration of the protection and expectations of the Australian community and family violence, comprehensively and inexorably outweighed those factors that are in favour of revocation, including the best interests of the Applicant’s children, his ties to Australia and the impediments to removal. The correct decision is therefore to affirm the decision under review.
DECISION
Pursuant to s 105 of the ART Act, the Tribunal affirms the reviewable decision not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return (permanent) visa under s 501CA(4) of the Migration Act.

I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia

...................[SGD].....................................................
Associate
Dated: 20 March 2025

Date of hearing: 24-25 February 2025

Applicant: Self-represented

Solicitors for the Respondent: Ms G Gutmann, MinterEllison

Date of hearing:	24-25 February 2025
Applicant:	Self-represented
Solicitors for the Respondent:	Ms G Gutmann, MinterEllison