English and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2022] AATA 3627

English and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3627 (20 October 2022)
Division:GENERAL DIVISION
File Number:2022/6330
Re: Mr Brian George English

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Member R Maguire
Date:20 October 2022
Date of written reasons: 31 October 2022
Place:Brisbane

The decision under review is affirmed.
..................[SGD]......................................................
Member R Maguire
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BF transitional (permanent) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – breach of domestic violence orders – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code 1899 (Qld)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Social Security Act 1991 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
Chetcuti v The Commonwealth of Australia (2021) 95 ALJR 704; 392 ALR 371
Chetcuti v The Commonwealth of Australia [2021] HCA 25; [2020] HCA 42
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No.2) [2021] FCA 647; 287 FCR 109; (2021) 287 FCR 109
Hobson v Commonwealth of Australia [2022] FCA 418
Love v Commonwealth of Australia and Thoms v Commonwealth of Australia [2020] HCA 3
Mabo and Others v. Queensland (No. 2) (1992) 175 CLR 1
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Ruddock v Taylor (2005) 222 CLR 612
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Thoms v Commonwealth of Australia [2022] HCA 20
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member R Maguire
31 October 2022
Introduction and Background

On 20 October 2022 the Tribunal affirmed the decision under review. The Tribunal now publishes the reasons for that decision. Unless the context indicates otherwise, passages quoted in bold font are emphasis added by the Tribunal.
By application made on 5 August 2022 the Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 4 July 2022 made pursuant to

s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made under s 501(3A) of the Act to cancel the Applicant’s Class BF transitional (permanent) visa (“the visa”).
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under

s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;...
The term “imprisonment” is defined to include any form of punitive detention in a facility or institution: s 501(12) of the Act.
The Applicant is a 40-year-old citizen of Papua New Guinea (“PNG”). He relies on the decision of the High Court of Australia in Love v Commonwealth of Australia and Thoms v Commonwealth of Australia[1] (hereinafter referred to as “Love”) and claims to be a non-alien non-citizen and therefore not within the reach of the aliens power in consequence, and not liable to deportation under the Act.
[1] [2020] HCA 3.
In Love, Bell J stated[2] on behalf of the majority that they agreed that “…Aboriginal Australians (understood according to the tripartite test in Mabo [No 2] are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution.” The reference to Mabo [No 2] was a reference to Mabo v Queensland No.2[3] (1992) 175 CLR 1 at [70]) wherein Brennan J (as his Honour then was) stated:
“Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.”
[2] Ibid, at [81].
[3] Mabo and Others v. Queensland (No. 2) (1992) 175 CLR 1 at 70. (“Mabo v Queensland No.2/ Mabo No.2/ Mabo [No 2]”).
The first specific question and answer given by the High Court in the special case of Mr Love were as follows:
“1. Is the plaintiff an “alien” within the meaning of s 51 (xix) of the Constitution?
Answer: The majority considers that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the “aliens” power conferred by s 51 (xix) of the Constitution. The majority is unable, however to agree as to whether the plaintiff is an Aboriginal Australian on the facts stated in the special case, and, therefore is unable to answer this question….”[4]
[4] Love at pages 1-2. ‘Order. Matter No B43/2018’.
The High Court answered the same question posed in respect of Mr Thoms:
“1. Is the plaintiff an “alien” within the meaning of s 51 (xix) of the Constitution?
Answer: The majority considers that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the “aliens” power conferred by s 51 (xix) of the Constitution…”[5]
[5] Ibid, at page 2. ‘Matter No B64/2018’.
Whilst the High Court in Love agreed on the application of the Mabo (No.2) tripartite test, Bell J observed[6]:
“…The special cases do not raise consideration of the circumstances, if any, in which a person who is not within the Mabo [No.2] test may nonetheless establish that he or she is an Aboriginal Australian.”
[6] Love at [80].
A similar observation was made by Gordon J[7]:
“It is not necessary, in this case, to chart the outer limits of the concept.”
[7] Ibid, at [368].
Moreover, Edelman J raised the question with respect to the tripartite test[8]:
“…whether the limbs are interrelated so that a weaker factual basis in one limb could be compensated for by a stronger factual basis in others”.
[8] Love at [462].
Clearly, Bell, Gordon and Edelman JJ have left the door open for further development of the applicable test. It is not the task of this Tribunal to develop the law, but to apply the law as it presently stands.
The potential ramifications of Love are significant, because, as was observed by Kiefel CJ[9]:
“The Migration Act and the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”) are enacted under s. 51 (xix).”
[9] Ibid, at [3]. Citing Re Patterson; Ex Parte Taylor (2001) 207 CLR 391 at 443 [156] per Gummow and Hayne JJ; Pochi v Macphee (1982) 151 CLR 101.
Notwithstanding the breadth of the answers given in Love, since that decision, Mr Thoms has unsuccessfully argued in the High Court in Thoms v The Commonwealth[10] (“Thoms’ case”) that the power to detain under s. 189 cannot validly confer a power to detain someone reasonably suspected of being an "unlawful non‑citizen" when that person is not in fact an alien. This argument was rejected on the basis of Ruddock v Taylor[11] and the fact that “reasonable suspicion” of being an unlawful non-citizen was the basis of the exercise of the power, not the actual status of the individual detained. The detention of Mr Thoms was found to have been lawful[12].
[10] Thoms v Commonwealth of Australia [2022] HCA 20. (“Thoms v Commonwealth/ Thoms case”).
[11] (2005) 222 CLR 612.
[12] Thoms v Commonwealth of Australia [2022] HCA 20.
The decision in Love was considered by Mortimer J in Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No.2)[13]. In her Honour’s summary of conclusions, her Honour opined:
Summary of my conclusions
“5. For the reasons that follow, I find that the reasoning of the majority in Love/Thoms, reflected in the ratio decidendi of that decision, does not leave a single judge of this Court free to adopt a different test to the one set out by Brennan J in Mabo (No 2), even though the majority reasoning in Love/Thoms expressly recognises that there may be other available approaches to the determination of whether or not a person such as Mr Helmbright is an Aboriginal Australian.
6. I find the ratio decidendi of the decision in Love/Thoms does not require a single judge to apply the mutual “recognition” limb of the Mabo (No 2) test by reference to any native title approach. I also conclude the reasoning of Nettle J in Love/Thoms on this matter does not support the Minister’s submission, both as to the interpretation of that reasoning, and whether it “controls” the approach a single judge must take.
7. I conclude that Brennan J’s approach, although expressed in the context of a decision about common law recognition of native title, is not as narrow as the Minister submits when it is applied to the question of alienage, as Love/Thoms requires. I conclude that, aside from descent, the Mabo (No 2) test looks to “mutual recognition”, that being the term used by Brennan J. The two aspects to mutual recognition are recognition by an individual that she or he is a member of the group concerned, and second, recognition by elders or others enjoying traditional authority within that group that the individual is a member. The recognition in this sense must flow both ways.
8. In Mr Helmbright’s case, I conclude that on the evidence Mr Helmbrighthas proven the descent limb, and the self-identification aspect of the mutual recognition limb, but has not proven the second aspect of the mutual recognition limb in Mabo (No 2). He has proven that he is recognised by the community mtwAC represents, but he has not proven the recognition has been given by “elders or others enjoying traditional authority”. This conclusion means he has failed to prove on the balance of probabilities he is not an alien for the purposes of s 51(xix) of the Constitution, and for the purposes of the Migration Act 1958 (Cth). …”
[13] [2021] FCA 647; 287 FCR 109, at [5] – [8]. (2021) 287 FCR 109 at 180.
Later in her reasons, Mortimer J said[14]:
“In my opinion the correct understanding of the test as explained by Brennan J in Mabo (No 2) is that there must be:
(a) biological descent from “the indigenous people”, which is a reference to an identifiable group, clan or community; and
(b) mutual recognition of a person’s membership of that same group, clan or community by the person concerned and by elders or others enjoying traditional authority within that group, clan or community. In this context, what is required is authority to permit or preclude membership that has its source in the norms handed down from generation to generation, since prior to European settlement.”
[14] Ibid, at [148]. (2021) 287 FCR 109 at 141.
Her Honour later said[15]
“298. I have found at [146-148] above that when explaining what kind of mutual recognition from a group is required, Brennan J emphasised that recognition must be focussed on how the law and custom of the group operates to permit or preclude membership. As I have found earlier that is why his Honour focussed on “elders” (a term in my opinion used to convey a sense of hierarchy in Aboriginal communities by reason of traditional law and custom) and “others enjoying traditional authority” (a term in my opinion used to capture those who may not be “elders” but have a role under traditional law and custom in deciding which people are properly considered members of a particular group0.
299. This aspect of mutual recognition, which is particular to the Mabo (No.2) test, may likely be proven by evidence about the processes by which a decision is made to permit a person to join the group, or to exclude them. And by evidence about who makes that decision.”
[15] Ibid, n13 at [298]-[299] & 171.
In Hobson, S.C. Derrington J concurred[16] with Mortimer J’s understanding of the tripartite test (as expressed by Brennan J) in Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No.2)[17]:
[16] Hobson v Commonwealth of Australia [2022] FCA 418, at [29]-[32]. (“Hobson”).
[17] [2021] FCA 647.
“29. I respectfully agree with and adopt Mortimer J’s analysis of the four majority judgments in Love and concur with her Honour’s conclusions that there is no modification of the Mabo No.2) test by any of the majority justices (Helmbright at [211]). In her Honour’s view, the correct understanding of the test as explained by Brennan J is that there must be (Helmbright at ([148]):
a. biological descent from the “indigenous people”, which is a reference to an identifiable group, clan or community; and
b. mutual recognition of a person’s membership of that same group, clan or community by the person concerned and by elders or others enjoying traditional authority within that group, clan or community. In this context, what is required is authority to permit or preclude membership that has its source in the norms handed down from generation to generation since prior to European settlement.
30. Her Honour reasoned, at [141]:
Therefore, when Brennan J describes mutual recognition by those with “traditional authority”, and “by elders”, his Honour is describing those people who are seen, by their own community as passed down through generations, to make decisions for and about the community (including membership of the group or clan itself). As his Honour recognised, there may have been some adaptation and change to the content of the law and custom because of the impact of European settlement.
31. Her Honour restated (at [142]) and rejected (at[143]) the submission that Brennan J’s description of community recognition was to be read subject to his observations (Mabo No.2 at 59-60):
When the tide of history has washed away any real knowledge of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. Australian law can protect the interests of an Indigenous clan or group whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as practicable to do so).
(emphasis added by Mortimer J)
and said, at [143]:
… The emphasised parts assist in understanding that his Honour was here explaining that the common law could not recognise and enforce title to land sourced in traditional law and custom if that law and custom was no longer observed and acknowledged by the group itself. The continuing observance of traditional law and custom, in a sufficient way, and allowing for adaption and change, was how the native title itself survived. This fundamental proposition which conceptually underpins what is now described as the “continuity” requirement in s 223 of the Native Title Act 1993 (Cth), wholly concerns survival of native title to land (and waters). It does not at all concern, and was not in my respectful opinion intended to concern, the survival of a community of Indigenous people, as a community. Nor was it intended to suggest that, if there was no proven continued observance of traditional law and custom about rights and interests in particular land and waters, all connection, and sense of connection, to the land and waters of that community was lost, or that the community itself – as an entity to which people could belong and in which culture, language, law and custom could continue to reside – was lost. What was lost, in his Honour’s view, was native title capable of being recognised by the common law.
32. I respectfully share Mortimer J’s understanding of the tripartite test as expressed by Brennan J.”
In his submissions to the Respondent accompanying his request for revocation, the applicant made no claim regarding indigenous descent, and this issue was therefore not considered in the decision under review. The applicant raised this claim for the first time in his present application[18] to this Tribunal on 5 August 2022, some fourteen months after receiving notice of his visa cancellation and being invited to seek revocation of that decision. The Tribunal notes that he had however previously asserted indigenous ancestry during medical assessments conducted in immigration detention in March and April 2022[19].
[18] Exhibit 1, G Documents, G1, Notice of application for review of a decision, pages 4 and 7.
[19] Exhibit 4.1 the Applicant’s Statement of Facts, Issues and Contentions, pages 79, 81 and 91.
The Respondent does not contest that the applicant is of Torres Strait Islander descent, or that he identifies as indigenous. The Respondent contends however that the evidence does not demonstrate that the applicant meets the third limb of the tripartite test.
Notwithstanding the concession made by the Respondent, there were also numerous Queensland Police Service (“QPS”) Court Brief records over a period of years going back to 2013 where the applicant appeared to have denied being indigenous[20].
[20] Exhibit 13, Book of Respondent’s Material, pages 31, 35, 47, 52, 56, 67, 72, 75, 79, 83, 87, 92, 96, 101, 106, 112, 123, 127, 131, 137, 142, 159, 164 and 168. Exhibit 14. Book of Respondent’s Material No 2, pages 651 and 909 and 960.
In his application to the Tribunal, the applicant gave reasons why he thought the decision was wrong as follows[21]:
“I’m a direct descendant of Torres Strait Islanders, on my mother’s side. I was born in Papua New Guinea (Port Moresby) General Hospital.
Australia is my home. I’ve lived in this beautiful country for 34 years.
I have two beautiful Australian daughters [L] and [K] (both pseudonyms inserted by the Tribunal) who I’m teaching PNG culture and traditions.
I take full responsibility for my actions with my criminal history. I have made bad decisions, made worse by being drugs and alcohol. The drugs and alcohol are issues I am dealing with.
I’m currently regularly attending Reintegration classes at BITA. I’ve completed my anger management course and I’m currently doing drug and alcohol classes, I will then be doing stress and resilience classes.”
[21] Exhibit 1, G Documents, G2, Application for review of a decision, page 7.
The only evidence before the Tribunal which seeks to address the third limb of the Mabo No.2 test purports to come from a member of the Torres Strait Island community and is found in Exhibits 16 and 17.[22]
[22] Exhibit 16, Declaration of Dan Larry lodged 10 October 2022. Exhibit 17, Statement of Dan Larry dated 6 October 2022.

Exhibit 16[23] is an unsigned, unverified undated one page letter which purports to be from one Mr Dan Larry and a further unsigned letter dated 6 October 2022. The body of the first of these:
[23] Ibid.
“TO WHOM IT MAY CONCERN
I, DAN LARRY OF 25 MOSBY STREET, IAMA (YAM) ISLAND, FNQ HEREBY AUTHORISE MY COUSIN SISTER WALO TEMU TO SIGN THE ATTACHED LETTER ON MY BEHALF AS I AM UNABLE TO TYPE AND SIGN AS I DO NOT HAVE ACCESS TO A COMPUTER.
IF YOU REQUIRE FURTHER INFORMATION, I CAN BE CONTACTED ON 0456 471 472.
THANK YOU,
DAN LARRY.”
The body of the second unsigned dated 6 October 2022 letter which is exhibit 17[24] is as follows:
[24] Ibid, n22.
“Dear Sir / Madam
RE: BRIAN GEORGE ENGLISH
My name is Dan Larry, I am biologically descended from Yam (Iama) Island, Torres Strait. I am a recognised person in my community, I have lived all my life on the island and have worked as a Police Officer.
Brian George English, a detainee at Pinkenba Detention Centre is my nephew, his mother Sylvia English is my cousin sister.
Sylvia identifies herself as a Torres Strait Islander and was recently here in Iama (Yam) Island visiting families. Brian also identifies himself as a Torres Strait Islander through his mother (Sylvia) whose both parents Auwere Miako and Pa’u Miako (nee Maku) have blood line to Torres Strait. Brian will be welcomed in the Iama Island Community when he visits family in the near future.
I therefore would appreciate if his case could be looked into and assisted accordingly.
Thank you and your actions to this regard will be highly appreciated.
Yours sincerely
ON BEHALF OF DAN LARRY
IAMA ISLAND COMMUNITY”
The very nature of this evidence as presented warrants little weight being given to it.
The evidence such as it is from Mr Larry[25], whilst asserting that he is descended from Yam (Iama) Island people, is silent on which particular indigenous community he is from. Whilst it asserts that he is “recognised” in the community, it does not assert that he is an elder of the community, or whether he is in a position where he has traditional authority to decide questions in relation to culture and traditions, especially in relation to acceptance or rejection of someone into that community. Neither does it assert that there has been a continuity of traditional law and customs since European settlement, or indeed that he had ever met the applicant.
[25] Ibid.
The Tribunal does not consider that the evidence presently before it is capable of establishing the third limb of the test in Mabo (No.2) as discussed above, or that the applicant is “not within the reach of s 51(xix) of the Constitution”. However, in expressing this opinion, the Tribunal is mindful that it has no jurisdiction to determine such an issue. As was observed by Gordon J in Love, the question whether the applicant is an alien or not is a constitutional question, not a statutory question[26], and this Tribunal has no jurisdiction to determine issues arising under the Constitution. Such a role is that of the court acting on evidence[27].
[26] Love at [295].
[27] Ibid at [368].
It is convenient at this point to set out the long title to the Act:
An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.
The Act however, eschews the use of the term “aliens” in favour of the term “non-citizens.” As was observed in Chetcuti v The Commonwealth of Australia[28] the Parliament has treated all non-citizens as aliens.
[28] (2021) 95 ALJR 704, page 710, at [11], per Kiefel CJ, Gageler, Keane and Gleeson JJ; 392 ALR 371 at page 374.
The object of the Act provided in s. 4:
33. (1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.
(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to enter or remain.
(3) To advance its object, this Act provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.
(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.
(5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.
Other than in the long title, the word “aliens” does not appear elsewhere in the Act. In so far as “entry into, and presence in Australia” the Act only seeks to regulate the entry into and presence in Australia of “non-citizens”, the only class of persons contemplated as being able to apply for or be granted a visa[29]. Clearly the Act is not intended to regulate the entry and presence of citizens. The notion of Australian citizens requiring a visa to enter or remain in Australia is plainly preposterous, because they are not perceived as being “within the reach of the aliens power”. They are not aliens, and neither are those who have been declared by a court to satisfy the tripartite test in Mabo (No.2).
[29] See ss. 29, and 45 of the Act.
It has simply not been within the contemplation of the Parliament that a non-citizen might also be a non-alien. Thus it is that the Act provides no avenue for the resolution of a dispute as to alienage. Such a dispute is properly the sole province of the original jurisdiction of the High Court in applications such as were made in Love, or alternatively in the Federal Court in cases such as Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[30] (“Montgomery”). In that case, S.C. Derrington J issued a writ of habeas corpus and a writ of certiorari quashing the decision not to revoke the cancellation of the applicant’s visa, and remitted the matter to the Minister for further consideration. In that case Mr Montgomery satisfied two of the limbs of the Mabo No 2 test, but lacked evidence of ancestry.
[30] [2021] FCA 1423; see also Hobson v Commonwealth of Australia [2022] FCA 418. (“Hobson”).
Love, and the cases which have followed it, confirm that a court of competent jurisdiction is the proper place to resolve a question of detention or alienage via either a writ of habeas corpus, as was sought and granted in Hobson v Commonwealth of Australia[31]or, (for present purposes) a declaration that the applicant is not an alien as was sought in Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No.2)[32] To date, no such application has been made by the applicant, but there is no legal obstacle to such an application even after the decision and reasons are delivered in this case.
[31] [2022] FCA 418.
[32] [2021] FCA 647.
Since Love, the Act must be construed as intending that only aliens -as opposed to non-citizens - can apply for and be issued a visa, and consequently that only aliens would ever be the subject of a visa cancellation under s. 501(3A), and have the right to seek revocation of that decision under s.501CA(4). In the same vein, only aliens would be afforded the review process provided by the relevant provisions, and only aliens could have their visas restored by this Tribunal.
Sourced as it is in the aliens power, the Act assumes that a former visa holder is an alien, and provides a mechanism whereby in certain circumstances, the alien’s visa may be restored. It was never within the contemplation of the Parliament that this Tribunal would ever have to consider or determine a question of alienage in the course of a review for the purposes of s. 501CA(4). The Tribunal’s only jurisdiction in such a case is to determine if an alien passes the character test, or if there is another reason why the original decision should be revoked. The Act, and the Direction 90 issued under it were never intended or designed for cases where indigeneity is in issue.
In this application, the applicant, on the one hand, claims to be a non-alien, beyond the reach of the aliens power. On the other hand, he seeks to rely on provisions intended to be for the exclusive use of aliens, and seeks the restoration of a visa which can only be granted to an alien.
The time limits and processes provided to this Tribunal by the Parliament are wholly inadequate for the purpose of determining alienage for a number of reasons. They were never designed or intended to accommodate determination of questions of non-alienage. They were designed for circumstances where an applicant’s status as a non-citizen alien was simply not in issue.
First and foremost, as was stated by the first President of this Tribunal, Brennan J[33]:
“This Tribunal does not exercise judicial power; it exercises the non-judicial power conferred upon it by its constituting statute.”
[33] Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 at 175.
The jurisdiction for this Tribunal, once properly invoked arises in s. 500(1)(ba) of the Act which provides that applications may be made to it for review of the decision under s. 501(CA)(4) not to revoke a decision to cancel a visa previously made under s. 501(3A). Various provisions of the Act, as well as the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) impact on the conduct of the review, and the decisions available to it.
Once an application is made to this Tribunal, the decision may only be altered with the consent of the parties and the Tribunal[34].
[34] S. 26 AAT Act.
The “two day” rule found in s. 500(6)(H) and (J) of the Act limit the information and documents to which the Tribunal may have regard. Further, s. 500(6)(L) removes the Tribunal’s usual option provided in s. 42D of the AAT Act to remit a decision for further consideration.
Subject to certain exceptions, if a decision regarding an applicant presently in the Migration zone is not made within 84 days of date of the decision under review, (“the 84 day rule”) s. 500(6)(L) provides that the Tribunal is deemed to have made a decision under s. 43 of the AAT Act affirming the decision under review.
There is neither provision nor time to state a question for the High Court as was done in Love.
The applicant asserts that he is an indigenous man of Torres Strait ancestry. These claims are not disputed, and accepted by the Minister. The only contest regarding the Love test which is a live issue before the Tribunal is whether the applicant can satisfy the third limb, which is to demonstrate the requisite acceptance, which in the words of Gordon J at [367]-[368] in Love is:
“Each part of the legal concept is significant and necessary – biological descent, self identification, and recognition by an elder or elders enjoying traditional authority.
As was recognised in Mabo [No 2], biological descent, self-identification and recognition may raise contests which may have to be settled by community consensus or in some other manner prescribed by custom, or by a court acting on evidence which lacks specificity….”
The Tribunal considers that where there is an assertion of a person’s status as an unlawful non-citizen, the proper mechanism for that is by swiftly seeking a declaration in the High Court or the Federal Court[35] that the applicant is not an alien as was sought (unsuccessfully) in Chetcuti v Commonwealth of Australia[36]. In Chetcuti at first instance, Nettle J observed at [25]:
“As was observed by Gibbs CJ in Pochi v Macphee[37], and later confirmed by a majority of six Justices in Nolan v Minister for Immigration and Ethnic Affairs[38],
[35]   Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No.2) [2021] FCA 647; (2021) 287 FCR 109.
[36] [2020] HCA 42; confirmed on appeal Chetcuti v Commonwealth of Australia [2021] HCA 25.
[37] [1982] HCA 60; (1982) 151 CLR 101 at 109.
[38] [1988] HCA 45; (1988) 165 CLR 178 at 185-186 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ. See also Singh v The Commonwealth [2004] HCA 43; (2004) 222 CLR 322 at 384 [155] per Gummow, Hayne and Heydon JJ.
[39]   Pochi v MacPhee [1982] HCA 60; (1982) 151 CLR 101 at 109 per Gibbs CJ.
[40]   Pochi v MacPhee 1982] HCA 60; (1982) 151 CLR 101 at 109-110 per Gibbs; Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 at 185 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ.
s 51(xix) of the Constitution confers a wide power to legislate with respect to aliens and is to be construed with all the generality that its terms allow. The only limit is that Parliament may not treat as an alien someone who cannot possibly be regarded as an alien in the ordinary understanding of that term[39]. Thus, generally speaking, it is within the legislative competence of the Parliament to treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalised[40].”
The applicant’s visa was cancelled on 16 June 2021, and he made no assertion that he was not an alien in subsequent correspondence with the Minister. He raised the issue for the first time in his written application form to this Tribunal, but has not raised it in a court of law. Under Australian law, unless and until either the High Court or the Federal Court declares that he is not an alien for the purposes of s. 51(xix) of the Constitution, administrators in general, and this Tribunal in particular, are bound to treat him as an alien for all purposes.
The Tribunal notes that this decision does not prevent the applicant from seeking the relief described in the above paragraph, and it remains open to do so after he received the Tribunal’s decision on 20 October 2022, and after these reasons were delivered to him after that date.
In the circumstances, the Tribunal does not consider his claimed status as a non-alien is “another reason” to revoke the cancellation of his visa, or that it can or should distract this Tribunal from its core task of determining this review in accordance with s. 501(CA)(4) and Direction 90, which the Tribunal now proceeds to do.
The Applicant was born in PNG in 1982. He first entered Australia on 7 December 1983, remaining for a period of 23 days. He visited Australia again for a period of 110 days from

26 October 1984, before moving to Australia on 5 June 1988 at which time he was 6 years old. He remained in Australia until 11 December 1993 at which time he returned to PNG for 57 days. He subsequently departed Australia on 16 December 1996, returning from PNG on 17 January 1997. He has not departed Australia since that time[41].
[41] Exhibit 1, G Documents, G15, Book of Applicant’s Material, page 88.
On 2 June 2021, the Applicant was sentenced in the Magistrates Court of Queensland at Sandgate to 26 months’ imprisonment of offences including assault occasioning actual bodily harm domestic violence offence[42]. This offence, created by s. 339 of the Criminal Code 1899 (Qld) is punishable by up to seven years’ imprisonment.
[42] Exhibit 1, G Documents, G4, Attachment A: Check results report (dated 21.04.2021),page 30.
On 16 June 2021, whilst the Applicant was in custody serving a term of imprisonment the Respondent, acted pursuant to s 501(3A) of the Act, to mandatorily cancel the Applicant’s visa because he did not pass the character test as he had a substantial criminal record as provided in s 501(7)(c) in consequence of being sentenced to 12 months or more imprisonment. Notice of this decision was given by hand to the Applicant on 16 June 2021.[43]
[43] Exhibit 1, G Documents, G18, Attachment O: Letter from Department to applicant -
Notice of cancellation (dated 16.06.2021), pages 110-115.
In accordance with reg 2.52(2)(b) the Applicant was invited in accordance with

s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister on 22 June 2021 within the period and in the manner specified.[44]
[44] Exhibit 1, G Documents, G11, Attachment H: Request for revocation (dated 22.06.2021), pages 69-71 and G12, Attachment I: Email from applicant (dated 15.07.2022) , page 73.
On 28 July 2022, the Respondent, acting pursuant to s 501CA(4) of the Act, decided not to revoke the visa cancellation decision made under s 501(3A) of the Act,[45] and the Applicant made the present application to this Tribunal for a review of that decision.[46] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[45] Exhibit 1, G Documents, G3, Letter from Department to applicant – Notification of decision not to revoke visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) and attachments a) – c), pages 9-28.
[46] Exhibit 1, G Documents,G2,Application for review of a decision. pages 3-8.
By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day is 20 October 2022. It was therefore open to the Tribunal to make a decision prior to midnight, on that date.
Issues
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The Applicant has made the representations required by s 501CA(4)(a) of the Act. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which the Tribunal is required to read, identify, understand and evaluate[47].
[47] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, at [22] and [36].
If the Tribunal exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Tribunal must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Tribunal's personal or specialised knowledge or by reference to that which is commonly known. It is open to the Tribunal to adopt the accumulated knowledge of the Department.[48]
[48] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]-[20].
As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[49]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[50]
[49] [2018] FCAFC 151.
[50] Ibid, at [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337 at [38] per North ACJ; Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 at [31] per Collier J, with whom Logan and Murphy JJ agreed.

As provided in s 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[51]
[51] Ibid.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, s 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
Evidence before the Tribunal,[52] establishes that the Applicant was sentenced to 26 months’ imprisonment in the Magistrates Court of Queensland on 2 June 2021. Moreover, the Applicant conceded the accuracy of his history of offending as set out in the G Documents and in the Respondent’s Statement of Facts Issues and Contentions (“SFIC”)[53] and that he does have a substantial criminal record and does not pass the character test. He also confirmed that all statements made to the Department during the request for revocation process and to this Tribunal were true and authorised by him[54].
[52]   Exhibit 1, G Documents, G4, Attachment A: Check results report (dated 21.04.2021).page 30; G10, Attachment G, Transcript of proceedings in Sandgate Magistrates Court (dated 26.09.2021), pages 63-67.
[53]   Exhibit 1 G Documents G 11 page 72. Transcript p 38 lines 20-30
[54]   Transcript 12 October page 39 lines 5-10.
It is clear that this concession was properly made, as the custodial term imposed was “a term of imprisonment of 12 months or more”, and the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in s 501(7)(c) of the Act. The Tribunal therefore finds that the Applicant does not pass the character test pursuant to

s 501(6)(a) of the Act and that the Applicant therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
The remaining question therefore is found in s 501CA(4)(b)(ii) of the Act, namely whether there is another reason why the original decision should be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Ministerial Direction No. 90
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[55] The Direction provides guidance for decision-makers on how to exercise the discretion in s 501CA(4) of the Act.
[55] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
Relevantly, the Direction states that:[56]
“Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”
[56] Direction No 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction/ Direction 90”), page 5, Part 2, 6 – Exercising discretion.
.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of the Directions sets out four Other Considerations which must be taken into account. These considerations are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i) strength, nature and duration of ties to Australia;
(ii) impact on Australian business interests.
The Tribunal notes and emphasises the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[57]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply”.
[57] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these considerations.
Pre-Hearing EVIDENCE BEFORE THE TRIBUNAL
Following the mandatory cancellation of his visa, the Applicant made a Request for Revocation of the Mandatory Cancellation.[58] He provided reasons for the revocation of the cancellation of his visa as that he had lived in Australia for 33 years, and had two daughters under the age of 16. An accompanying handwritten statement provided:
“I am Brian George English, son of Richeard and Sylvia English, brother to Stella Chan, Steven English, and Bradley English. I am father to L and K[59] my two beautiful daughters are everything to me in this world. I understand that I have failed them and failed the character test and I am sincerely sorry for what I have done. I have lived in and called Australia home for 33 years and wouldn’t change it for the world. I am currently on disability pension for a brain injury I had in 2012. I am doing all I can to rehabilitate myself. I have a loving partner who is an Australian citizen who I’ve been with for ten years and one day I’d love to marry.”[60]
[58]    Exhibit 1, G documents, G11 page 68-72.
[59]   L and K are pseudonyms provided by the Tribunal.
[60]   Exhibit 1, G Documents, G11, Attachment H: Request for revocation (dated 22.06.2021), page 72.
The Tribunal also has before it an email[61] dated 15 July 2022 from the applicant to NCCC Revocations, the body of which reads:
“Dear Emma
I’m writing in regards to the events that happened whilst in Brisbane Immigration detention centre.
I Brian English take full responsibility for my actions that happened on the 9^th of the 11^th 2021. I got into a altercation with another detainee which through [sic] the first punch at me, therefore I reacted to, that’s when the guards came, and we got split up thank God because I have a titanium mesh skull plate and I fear for my life when in situations like that.
Mrs. Emma
I am writing about the incident that let me to go to the hospital, Emma once again I Brian English take full responsibility for my actions, I was not in a good place at that time in my life my partner of 10 years passed away, two of my aunties passed away, two of my uncles passed away, one of my cousins passed away, I was going through a lot of mentally and yes I took a substance that led me to the Royal Brisbane Hospital, I’ve been clean ever since, I’ve done the anger management classes and I’ve started the alcohol and drug class. I’m doing to better myself and for family friends and most of all my two beautiful daughters which mean nothing but the world to me.
Mrs. Emma
I’m writing about the first natural justice letter that was sent out about my criminal history, Emma I’m a good man just in the wrong place at the wrong time, I take full responsibility for all the wrongs I did, and I’ve let go of that not only for myself but for my beautiful daughters which I as a father want to build a relationship with, I went off track for a bit and being incarcerated has opened my eyes to realize that my two beautiful daughters need their father more than anything in the world, Emma I’m doing most of the classes they have in Brisbane immigration detention center to be the best I can be. Yours truly Brian George English.”
[61] Exhibit 1, G documents, G12, Attachment I: Email from applicant (dated 15.07.2022),page 73.
The Tribunal has had regard to numerous Immigration detention incident reports[62] which record that the applicant:
“…
(a)was involved in a minor altercation on 9 November 2021;
(b)suffered seizures and was taken to hospital by ambulance after consuming homebrew on 18 November 2021;
(c)smoked Suboxone strips on, experienced a seizure and was taken to hospital by ambulance on 5 March 2022l;
(d)experienced a further seizure after again smoking a Suboxone strip on 15 March 2022.
…”
[62] Exhibit 1, G documents, G 13, Attachment J: Immigration detention incident reports, pages 74 – 79.
Personal Circumstances Form
The Tribunal has before it a blank uncompleted Personal Circumstances Form[63], (“PCF”) which was forwarded to the applicant as an attachment to correspondence dated 20 May 2022.
[63] Exhibit 1, G 16, Attachment M: Letter from Department – Invitation to comment (dated 20.05.2022), pages 89-106.
The Application to this Tribunal
In the body of his application to this Tribunal[64], the applicant answered the question “Are you of Aboriginal or Torres Strait Islander origin?” “Yes”. He later answered the question “Why do you claim the decision is wrong?” as follows:
I’m a direct descendant of Torres Strait Islanders, on my mother’s side, I was born in Papua New Guinea (Port Moresby) general hospital.
Australia is my home. I’ve lived in this beautiful country for 34 years.
I have two beautiful Australian daughters L and K (pseudonyms) who I am teaching PNG culture and traditions.
I take full responsibility for my actions with my criminal history. I have made bad decisions, made worse by being on drugs and alcohol. The drugs and alcohol issues I am dealing with.
[64] Exhibit 1, G documents, G2, page 4.
I am currently regularly attending Reintegration classes at BITA. I’ve completed anger management course and I’m currently doing drug and alcohol classes, I will then be doing stress and resilience classes.
Letters/emails/statements in support of the applicant
The Tribunal has before it, an email dated 26 September 2022 forwarded by the applicant, together with an attachment thereto[65]. The email, from Neil Douglas Holland was sent to the applicant’s email address and read:
“Hey my Bala,
have a look at what I did. You may need to edit some things or add to it…just note that I am not a good writer but I hope this helps a bit.
Do not reply to this email as its my work email. I had to send it back to you through this email as I cant (sic) access me personal email at work.
Neil Douglas Holland
Indigenous Health Worker”
[65] Exhibit 2, Applicant’s Submissions - Email dated 26 September 2022Applicant’s Letter to Honour, lodged on 26 September 2022.
The attachment to Mr Holland’s email is set out in full[66]:
“To whom it may concern
Your Honour My name is Brian George English. I was born on the [date redacted] 1982, in Port Moresby, Papua New Guinea. From a toddler till I was 6 years old, I travelled many times with my parents back and forth to Australia. My parents Richeard and Sylvia English who were both born in Papua New Guinea, had married and were raising their young family (Sibling: sister Stella, Me and younger brother Steven) before making the move to this safe beautiful country Australia in 1987 to start a new life. In 1990, my mother and father had my younger brother Bradley in Brisbane, Australia and the family was now complete.
Your Honour I would like to advise you that I am of Torres Strait descendant. My mothers’ ancestors are from Darnley Island and Yam Island. Growing up in Australia I have connected and made many friends with Indigenous people especially of my mother’s Torres Strait Islander heritage. There is very little I know of Papua New Guinea and the lifestyle within and if I was to be deported back to Papua New Guinea it would just be a Death sentence to me. I have heard a lot of stories of the lifestyle conditions and the health system, and I have seen documentaries about Papua New Guinea. Your Honour, I fear for my life if I was to be deported back. I'm currently in an immigration detention centre in Brisbane (BITA). Every night I cry to myself in bed thinking and waiting for ABF to knock on my door and inform me to pack my belongings and then deport me back to Papua New Guinea.
Your Honour I have two beautiful girls [L] (16yr) and [K] (13yr) who were both born and raised in this beautiful country Australia. I have a beautiful relationship with both my daughters, and it would be detrimental for them not to have their father to guide, nurture and protect them in Australia. The thought of not seeing them or living away from them would be detrimental on my mental health as they both mean the world to me.
Your Honour in 2011 I had a brain injury, and I was in an induced coma for 9 days. My ex-partner (daughter's mother) signed a consent form for the neurosurgeons to operate and remove half my cranium. It has since been replaced with a titanium mesh to protect my brain. This injury has impacted my life with seizures, and I have to live with that health condition and also the scars for the rest of my life.
Your Honour I fear for my life if I was to be deported back to Papua New Guinea as I know no one and have no support network there. If I was deported, I would be on the streets fending and trying to survive in a country that has no government support such as Centrelink and a quality health system. Australia has been my home since I was 6 years old and now, I am 40 years old.
Your Honour my criminal history is appalling, and I acknowledge and regret everything thing I've done. I am ashamed and I have learnt my lesson and I am truly sorry to everyone I have let down. I do have great support from family, friends and loved ones here in Australia. Since being in detention, I have completed two courses (Drug & Alcohol and Anger Management) to better myself and for my beautiful daughters.
Your Honour I am pleading with you to reconsider my application and help keep me here in this wonderful safe country of Australia. I have my two beautiful daughters, siblings, nieces and nephews, parents, relatives and many friends here in Australia who I dearly care so much for and love. It would be heart breaking and detrimental for me to leave all I ever know and be deported to a country without the help and support.“
[66] Ibid.
Exhibit 3[67] is a further email dated 26 September 2022 from the applicant, the text of which is as follows:
“To whom it may concern
Your Honour I Brian George English has lived in this Beautiful Country Australia for over 34 years, Australia is all I know, I did most of my schooling in this Beautiful sunshine state Queensland from year one to year ten, I left school to work and help my parents, I did a lot of labour work till I was assaulted in Brisbane City which left me fighting for my life . Your Honour I'd just like to mention I do not speak nor understand Papua New Guinea language and I've heard there is over 900 deluxe (sic) in Papua New Guinea, in saying that your honour ,if I was to be deported back to a country I no (sic) nothing about you might as well give me a death sentence, Your Honour I am a proud indigenous Australian man that loves everyone and everything that Australia has to offer me .
Your Honour my Grandmother passed away on the 9 of September 2022 whilst being locked up in immigration detention centre it breaks my heart that I couldn't attend her funeral, your Honour she was last grandparent I had left on earth , your honour I have no one to blame but myself for missing her funeral.,(sic)
Your Honour my criminal history is appalling I take full responsibility for my actions, I'm am so sorry for action, your honour I'm getting help, I'm doing courses to better myself , your honour drugs and alcohol were a big factor in the crimes I did and I've rehabilitated myself and stopped drugs and alcohol. I've completed a drug and alcohol course. I’ve also completed a anger management course which I (sic) very pleased about , the only way is up for me your honour.
Your Honour I'd like to mention I have two beautiful daughters under 18 years age, your honour if I was to be deported away from them ,your honour you might as well give me a death sentence , your honour as a father one fine day I would love to walk my two daughter's down the isle (sic), it would break my heart your honour if I was to be deported to a country I know nothing about , your honour I'm scared and I fear for my life , your honour I wouldn't know where to start just thinking about it scares me your honour . Your Honour I'm a proud indigenous Australian man that loves this country .”
[67] Exhibit 3, Applicant’s Emailed Statement dated 26 September 2022.

On 4 October 2022, the Tribunal received a further email from the applicant[68]. This email forwarded an email from a person who signed Aunty Walo. Her email read:
“Morning son, I made some changes to what I sent. Make some changes or add on extra, whatever comes to mind when you reading. God Bless and stay safe. Aunty Walo.”
[68] Exhibit 9, Applicant’s Statement (undated) typed by Aunty Walo.
The following statement was attached to the email from Aunty Walo:[69]
[69] Ibid.
“TO WHOM IT MAY CONCERN
YOUR HONOUR, MY NAME IS BRIAN GEORGE ENGLISH, BORN IN PORT MORESBY GENERAL HOSPITAL ON THE [date redacted] 1982.
I, BRIAN ENGLISH FLEW BACK WITH MY MOTHER AND 3 SIBLINGS (STELLA, STEVEN & BRADLEY) TO PORT MORESBY IN 1996 TO VISIT FAMILIES.
MY FATHER, RICHEARD ENGLISH IS A PAPUA NEW GUINEAN AND MOTHER SYLVIA IS PART PAPUA NEW GUINEA AND TORRES STRAIT. SINCE ARRIVING IN AUSTRALIA, I HAVE IDENTIFIED MYSELF AS PAPUA NEW GUINEA AS MY FATHER IS PNG AND TORRES STRAIT BECAUSE OF MY MOTHER. BOTH MY PARENTS WERE BORN IN PNG WHEN IT WAS GOVERNED BY AUSTRALIA BEFORE THE PNG INDEPENCE IN 1975 AND DEEMED THEMSELVES AS AUSTRALIANS.
GROWING UP IN AUSTRALIA, I ASSOCIATED MYSELF AND HAD MORE TORRES STRAIT ISLANDERS THAN THE PNG SIDE OF FAMILY. ALSO GROWING UP IN A LOW SOCIO DEMOGRAPHIC AREA ON THE SOUTHSIDE OF BRISBANE, I BECAME INVOLVED WITH FRIENDS (MOSTLY FROM SCHOOL) WHO I THOUGHT WERE MY FRIENDS AND FOLLOWED THEM DOWN THE WRONG PATH.
IN SAYING THAT, I GREW UP IN AUSTRALIA KNOWING I AM A DESCENDANT OF TORRES STRAIT AND HAVE LIVED ALL MY LIFE HERE, HAVE A FAMILY OF MY OWN, I AM A FATHER OF 2 BEAUTIFUL DAUGHTERS L and K.
YOUR HONOUR, IT WILL BE A DEATH SENTENCE TO ME, IF I WAS TO BE DEPORTED BACK TO PNG TO A COUNTRY I DON’T KNOW MUCH ABOUT AND I WOULD NOT EVEN HAVE A PLACE TO STAY.
YOUR HONOUR, I HAD BRAIN INJURY IN 2011 AND WAS IN INDUCED COMA FOR 9 DAYS. MY EX PARTNER SIGNED A CONSENT FOR THE NEURO SURGEON’S TO OPERATE AND REMOVE HALF MY CRANIUM SO HALF MY SKULL IS TITANIUM MESH. THAT I HAVE TO LIVE WITH FOR THE REST OF MY LIFE.
YOUR HONOUR, I ARRIVED IN AUSTRALIA WHEN I WAS 6 AND NOW I AM 40 YEARS OLD, I CALL AUSTRALIA HOME AND DEPORTING ME BACK TO A COUNTRY I KNOW VERY LITTLE ABOUT WOULD KILL ME.
YOUR HONOUR, MY CRIMINAL HISTORY IS APPALLING, I TOTALLY REGRET MY ACTIONS AND EVERYTHING I HAVE DONE TO PUT MY FAMILY, ESPECIALLY MY 2 DAUGHTERS IN ALL THE PAIN, WORRINESS I HAVE PUT MOTHER AND FAMILY THROUGH.
WHILE IN DETENTION, I HAVE COMPLETED 2 COURSES ON DRUG, ALCOHOL AND ANGER MANAGEMENT TO BETTER MYSELF MAINLY TO BE A BETTER PERSON, A BETTER FATHER FOR MY 2 DAUGHTERS. I AM LOOKING SEEING MY 2 DAUGHTERS GROW UP AND TO BUILD A STRONGER AND LOVING RELATIONSHIP WITH THEM.
YOUR HONOUR, I HAVE REALISED AND LEARNT A LOT WHILE BEEN IN DETENTION AND THE LIKELY HOOD OF BEEN DEPORTED TO A COUNTRY I KNOW VERY LITTLE ABOUT IS KILLING ME, YOUR HONOUR, AUSTRALIA IS MY HOME.
FINALLY YOUR HONOUR, I HONESTLY CANNOT COPE, BEEN CONFINED IN THE DETENTION CENTRE DAY AFTER DAY, KNOWING ONE DAY YOU WILL GET A KNOCK ON YOUR DOOR TO TELL YOU THAT YOU WILL BE DEPORTED.
YOUR HONOUR, THE DETENTION CENTRE HAS BEEN A LIFE CHANGING EXPERIENCE, IT HAS HAD A STRONG EFFECT TO COMPLETELY CHANGE MY LIFE. THE COURSES IN DETENTION HAVE CHANGED ME TO MY CORE, HAVE HELPED ALOT IN MY WAY OF THINKING, MY APPROACH TOWARDS OTHER PEOPLE AND IN LIFE IT SELF. (sic)
I REGRET MY ACTIONS AND PROMISE TO BE A MUCH BETTER PERSON AND A FATHER FIGURE TO MY 2 DAUGHTERS.
BRIAN ENGLISH”
LETTER FROM MR RICHEARD PETERS
The Tribunal has also had regard for an unsigned letter dated 4 October 2022 from

Mr Richeard Peters,[70] who described himself as the applicant’s first cousin. The body of his letter is as follows;
“First of all my cordial greeting. I am here at this moment writing in reference to Brian George English, who is being detained in your immigration detention center.
I felt the overwhelming need to write this character reference for Brian. I sincerely feel very concerned about the well-being and future of Brian, and my intention is to try to make you understand my point of view and that of many people who know and love him.
Brian has recently re-connected with my nieces (his daughters) L & K as he did not want to be a hinderance to them while being detained and made the hardest decision of his life to distance himself from them as to not see them hurt any longer seeing him in the position he is in. A decision his daughters have wanted to change for a long time now and since that re-connection we have seen them grow and become more focused in their school work and general well-being in daily life. They are getting into their teenage years which are tough years for any child but sending their father to Papua New Guinea, a country he and especially his daughters has never known. I personally believe it will not only affect him but also two young girls becoming women and knowing that the father figure they have been yearning for these past few years while Brian was being detained and have only recently found may be lost to them all over again.
Although to you it may seem hard to believe or understand on paper, but Brian is a good person and has always had morality in his actions. I have had the happiness of being able to know Brian for almost 40 years now since he arrived from PNG in the late 80’s as he is my first cousin and that is why I can assure you that even though he has had his ups and downs in life, I and many of his friends are convinced that Brian is a human being with a great heart and a decent person. I’m sure that Brian only needs more people around him who believe in him to better develop his self-esteem and self-confidence and be able to return to be that amazing person that I’ve always known.
Certainly Brian at some point ended up around the wrong people and has made some mistakes, of which I am convinced that he is very sorry for having committed, for which he will be fully prepared to repair, as best he can, all the financial and emotional damages that his actions may have been caused around him. But this will only be possible if this justice system and all of us give a new opportunity to him because we recognize that he could have broken the law. I am sure that you know the power that the decision that you can take on the life of this man and two amazing young ladies that call him DAD. I can only hope that you take a wise disposition in allowing him to be closer to his daughters and family.
Kind Regards,
Richeard Peters”
[70] Exhibit 15, Book of Applicant’s Material, Number 9, Letter from Richeard Peters.
LETTERS FROM MR DAN LARRY
The Tribunal has also had regard for one undated unsigned letter from Mr Dan Larry[71], and a further unsigned letter dated 6 October 2022[72]. The body of the first of these letters, Exhibit 16, is as follows:
[71] Exhibit 16, Declaration of Dan Larry lodged 10 October 2022.
[72] Exhibit 17, Statement of Dan Larry dated 6 October 2022.
“TO WHOM IT MAY CONCERN
I, DAN LARRY OF 25 MOSBY STREET, IAMA (YAM) ISLAND, FNQ HEREBY AUTHORISE MY COUSIN SISTER WALO TEMU TO SIGN THE ATTACHED LETTER ON MY BEHALF AS I AM UNABLE TO TYPE AND SIGN AS I DO NOT HAVE ACCESS TO A COMPUTER.
IF YOU REQUIRE FURTHER INFORMATION, I CAN BE CONTACTED ON 0456 471 472.
THANK YOU,
DAN LARRY.”
The body of the second letter Exhibit 17[73] from Mr Larry is as follows:
[73] Ibid.
“Dear Sir / Madam
RE: BRIAN GEORGE ENGLISH
My name is Dan Larry, I am biologically descended from Yam (Iama) Island, Torres Strait. I am a recognised person in my community, I have lived all my life on the island and have worked as a Police Officer.
Brian George English, a detainee at Pinkenba Detention Centre is my nephew, his mother Sylvia English is my cousin sister.
Sylvia identifies herself as a Torres Strait Islander and was recently here in Iama (Yam) Island visiting families. Brian also identifies himself as a Torres Strait Islander through his mother (Sylvia) whose both parents Auwere Miako and Pa’u Miako (nee Maku) have blood line to Torres Strait. Brian will be welcomed in the Iama Island Community when he visits family in the near future.
I therefore would appreciate if his case could be looked into and assisted accordingly.
Thank you and your actions to this regard will be highly appreciated.
Yours sincerely
ON BEHALF OF DAN LARRY
IAMA ISLAND COMMUNITY”
The Tribunal has had regard for the applicant’s International Hospital and Medical Service (“IHMS”) records[74], which disclose among other things:
(a)“12 January 2017-26 May 2017: The applicant worked as a labourer from the age of 14 to the age of 33 at which time he suffered a traumatic brain injury (TBI), and was in ICU for nine days. He later began suffering seizures. He is an epileptic who suffers feelings of depression, paranoia, but does not take anti-seizure medication as instructed.
(b)25 November 2016: In February 2016, he ceased taking his seizure medication, fearing it was causing seizures, and began using cannabis, and had not had a seizure since.
(c)28 November 2016: His memory was quite bad, and he was failing to attend medical appointments.”
[74] Exhibit 15, Number 3, IHMS records for the Applicant, pages 3-216.
There are many reports of the applicant persistently failing and / or refusing to attend for medical review between 2016 and 2022 without reasonable excuse. There are also numerous reports of the applicant throwing away medication issued to him, and specifically requesting a prescription for Lyrica, a drug which was refused to him. Of particular interest is the IHMS report dated 1 April 2022 of a consultation with Dr Jillian Spencer - Psychiatrist[75] whose notes include:[76]
[75] Ibid, pages 87-89.
[76] Ibid.
(a)“the applicant’s partner died in May 2021 from an overdose of Xanax and Lyrica. They had been together for ten years, and she had two daughters by another man. The applicant’s parents are Australian citizens, They, as well as the applicant’s siblings, and daughters all live in Brisbane.
(b)The applicant’s mother, uncle and grandmother are Torres Strait Islanders, and the applicant is indigenous and should not be deported.
(c)Despite conviction for assault occasioning bodily harm against his ex-partner, the applicant asserted that he had never touched her in the whole ten years they were together.
(d)The applicant has previously been sentenced to six months imprisonment but serving only two months in 2011; 12 months but serving only four months in 2016, and three years with court ordered parole after 10 months in 2021.
(e)The applicant had a medical history as follows.
Head injury age 30, epilepsy since then. Says it was assaulted by 5 men he didn’t know while getting out of a car in the city [Fortitude Valley]; says there were no charges – “the police said I provoked them because I took off my shirt”. Hospital discharge summary from RWBH [2.7. 2013…5.7.2013] diagnosis: History of traumatic brain injury. Right frontal subdural hemorrhage (sic) with mass effects and subfalcine herniation. Right temporoparietal skull fracture. Bifrontal contusions. Elective admission to RBWH[77] after brain rehabilitation at BIRU (PAH) for Right Titanium Cranioplasty.
[77] Royal Brisbane Women’s Hospital
(f)The applicant had been diagnosed with depression in 2013, prescribed Zoloft and did not finish the prescription. He suffered symptoms of adjustment disorder on
19 December 2021, not major depression. History of childhood abuse/complex trauma/grief. History of polysubstance abuse. Does not want medication for his mental health. He reported taking alcohol from the age of 13, and first tried cannabis at 11 or 12. He first tried amphetamines at the age of 38. He had used crystal methamphetamine but not on a daily basis, and only used drugs intravenously a couple of times from peer pressure.
(g)The applicant was born in Papua New Guinea and lived there until the age of six. He was beaten up by his family. The applicant finished year 10 at high school at which time he was expelled for possession of cannabis in his school bag. He worked at the Brisbane Markets from age 14 through to age 18 and then worked in pool fencing for a few years. He suffered physical abuse from his father after he was a few years old. He vividly recalled his mother receiving abuse perpetrated by his father and having to find her hiding in bushes after running away when he was about six years old. When he was about 10 years old his mother took his siblings to a domestic violence shelter in Ipswich, leaving him at home with his father where the abuse escalated significantly as did his father’s alcohol intake.
(h)The applicant described himself as a “high achieving student”. The applicant ran away from home and was homeless for most of his teen years, sleeping in bus stations, and parks etc.
(i)The applicant was fearful of being deported to PNG, but had fond memories of visiting PNG age 12 and was “treated like royalty as he was perceived to be Australian.” He said he would sue the ABF for keeping him in detention whilst he is indigenous.
(j)In March 2022, the applicant reported his first seizure since November 2021. He reported that he had seizures when he did not look after himself or was stressed. There is a report of Jacqueline Peters Primary Health Nurse dated 2 March 2022 that the applicant had a seizure at the time of using an illicit substance, “a strip of subbie”.
(k)A report of 27 February 2022 recorded that he was disappointed to be back in detention, and that he had struggled in detention last time. He felt it was unfair for him to be in detention when he had indigenous blood running through his veins.
(l)A report of 9 December 2021 recorded that the applicant has been in receipt of the Disability Support Pension since suffering his TBI, and was very worried about accessing epilepsy medications if deported to PNG and what medical treatment he would receive if he had a seizure. The report also referred to his TBI and unspecified “associated impairments”. It was recorded that his TBI does increase the risk of impulsive behaviours that may be influenced by environmental, physical or emotional stressors.
(m)A report of 17 December 2021 recorded that four of the applicant’s loved ones, including his partner and an aunt in PNG had died, and he was worried as he would have lived with her if deported, and felt he would be on the streets, and exposed to the level of crime and violence. He was the only paternal figure to his daughters.
(n)The applicant is recorded as having metal ware in his right leg in a report dated 31 October 2021.
(o)A report dated 20 January 2017 recorded that the applicant had not suffered a seizure for the last two years and non-compliance with his medication was a long standing issue.
(p)A report dated 6 December 2016 recorded that the applicant “appears to have some cognitive deficits from TBI.”
(q)A report of 28 November 2016 recorded that the applicant’s hospital discharge summary did not include any information on medication on discharge.”
The Tribunal has had regard for the applicant’s ‘Do-It Program Workbook’ completed on

15 August 2022.[78]
[78] Exhibit 8, Applicant’s further submissions, Number 2, Di it Program Workbook.
The Tribunal has also had regard for a signed letter[79] dated 27 September 2022 from

Mr Neil Holland who described the applicant as a “good friend and cousin in law for over 28 years”. He maintained the applicant had “always been an upright member in the community.. a good friend and support.” He expressed confidence that the applicant would “emerge a better person”, and viewed him as “an honourable individual, a valuable member of my community and a good human being.”
[79] Exhibit 7, Character Reference of Mr N Holland dated 27 September 2022.
The Tribunal has also had regard for the applicant’s ‘Anger Management Workbook’, ‘Do-it Program Workbook’, and ‘Further Anger Management Workbook’[80].
[80] Exhibit 8, Applicant’s further submissions, Number 1 – Anger management workbook, Number 2, Di it Program Workbook and Number 2 Further Anger Management Workbook.
The Tribunal has also had regard for an email[81] dated 4 October 2022 sent by the applicant’s elder daughter who shall be referred to as L, and her younger sister, K. The body of the email (applying those pseudonyms) is as follows:
“Hello my name is L I am 16years old and on behalf of my sister K who is 13 years old, it would deeply hurt me to see our dad Brian English get deported to Papua New Guinea. I really want my dad to stay in Australia and still be a part of my life and K’s life. It would hurt my little sister and I to (sic) not have our father-Brian English be apart of our lives.
For us coming to visit my dad in the detention centre hurts K and I every time, we just want our father to be apart of our daily lives and witness all our milestones we have yet to achieve.
My dad also has medical conditions which include seizures and needs medical assistance. In Papua New Guinea where dad will live (Daru) there will be little to no health care available for him to be able to live.
K and I want our dad to stay and live in Australia and be apart of our lives.
I hope our support letter for my dad can help shed some light on how important it is for us to have him remain in Australia & out of the detention centre.
Your sincerely,
L & K.”
[81] Exhibit 10, Letter of Support of Ms L T English & Ms K M English dated 4 October 2022.
The Tribunal has also had regard for an unsigned undated statement[82] from Ms Tamara Rachel Miller who said that she and the applicant are the biological parents of L and K. Whilst acknowledging that their relationship involved past disagreements, she expressed a strong and amicable relationship as co-parents. Ms Miller expressed concern for her daughters at the prospect of the applicant’s deportation. She said the applicant had come to recognise how fortunate he had been to be given a second chance to remain in Australia. She believed that the support that she and her daughters could provide the applicant would help him to remain a good citizen of Australia. She committed to assisting him to get his life back on track.
[82] Exhibit 11, Letter of Support of Ms T Miller lodged 5 October 2022.
The Tribunal has also had regard for an email[83] dated 30 September 2022 from the Department of Home Affairs to the applicant acknowledging receipt of a ‘Freedom of Information’ request.
[83] Exhibit 12, Forwarded Email dated 30 September 2022 – regarding A’s FOI request from Department of Home Affairs.
The Tribunal has also had regard for an email dated 4 August 2022 from Aunty Walo to the applicant attaching answers to the Department’s questions.[84]
[84] Exhibit 15, Number 8, Email from Aunty Walo to the Applicant attaching answers to questions.
Applicant’s history of offending and other serious conduct
The Applicant’s criminal history and other serious conduct is informed by the following documents:
(a)
Australian Criminal Intelligence Commission Check Results Report dated

21 April 2021;[85]
[85]    Exhibit 1, G Documents, G4, Attachment A: Check results report (dated 21.04.2021), pages 29-34.
(b)
Verdict and Judgment record from Sandgate Magistrates Court dated

2 June 2021[86];
(c)Integrated Offender Management Report dated 8 June 2021[87];
(d)Nine Orders for disqualification of driver’s licence dated 2 June 2021 for an aggregate period of 21 and a half years[88];
(e)Transcript of proceedings in the Magistrates Court of Queensland at Beenleigh on 20 November 2015;[89]
(f)Transcript of proceedings in the Magistrates Court of Queensland at Sandgate on 26 September 2016;[90]
(g)Transcript of proceedings in the Magistrates Court of Queensland at Sandgate on 2 June 2021[91].
[86]   Exhibit 1 G Documents, G5, Attachment B: Verdict and judgement record from Sandgate Magistrates Court (dated 02.06.2021), pages 35-41.
[87]   Exhibit 1 G Documents, G6, Attachment C: Integrated offender management report (dated 08.06.2021), pages 42-44.
[88]   Exhibit 1 G Documents, G7, Attachment D: Order for disqualification of driver licence (dated 02.06.2021), pages 45-53.
[89]    Exhibit 1 G Documents, G8, Attachment E: Transcript of proceedings in Beenleigh Magistrates Court (dated 20.11.2015), pages 54-59.
[90]    Exhibit 1 G Documents, G9, Attachment F: Transcript of proceedings in Sandgate Magistrates Court (dated 26.09.2016), pages 60-62.
[91]    Exhibit 1 G Documents, G10, Attachment G: Transcript of proceedings in Sandgate Magistrates Court (dated 02.06.2021), pages 63-67.

The applicant’s most recent DVO and assault occasioning bodily harm victim, subsequently committed suicide. It is not possible to say that the applicant’s conduct towards her contributed to this outcome, but it is difficult for a rational person to exclude the possibility.
The fact that this applicant has been the respondent to three DVOs from three different women, and has breached each of these DVOs on multiple occasions, at times quite brutally raises a concern that threats, violence and intimidation are part and parcel of an attempt at a domestic relationship with this applicant. He has not demonstrated the capacity for a healthy and respectful relationship.
Moreover, it will be many years before this applicant is likely to be permitted to drive lawfully. As the magistrate said on 2 June 2021:
“It is much more good luck than good management having regard to these matters here today, that you have not come to grief on the roads, someone has not come to grief as a result of your actions.”[216]
[216] Exhibit 1, G Documents, G10, page 64, lines 30-33.
If the applicant continues to drive unlawfully, innocent members of the public may “come to grief”[217], as might the applicant himself.
[217] Ibid, page 64, line 32.
The seriousness of the consequences which might flow from the applicant’s further offending are clear from his past offending as discussed in the material before the Tribunal and narrated in the Respondent’s SFIC and summarised in these reasons..
Women, children, and others including innocent road users could be exposed to life threatening danger not of their own making. Women could be subject to episodes of extreme life threatening bashing, and be left with physical and emotional scars. Children could witness, and indeed be the victims of episodes of domestic violence.
Any investigations of the applicant’s future conduct could be complicated by deliberate lies to police, and prosecutions complicated by non-compliance with bail conditions. Further offending of a similar nature by this applicant could see increased costs of law enforcement and an added burden to legal administration, and costs of incarceration which the taxpayer would have to fund.
The Tribunal is mindful that paragraph 8.1.2(1) of the Direction stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases, and that some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated is unacceptable.
The Tribunal considers that the applicant’s conduct, and the harm that would be caused if it were to be repeated, is so serious, that any risk that it may be repeated is unacceptable.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In assessing the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal has had regard for his history, and his past efforts at reforming himself.
The Applicant is a 40-year-old male. He does not appear to have any difficulty attracting female partners, and as can be seen from his conduct towards female prison staff is not shy in doing so. He has had three female partners in the last ten years, and there is no reason to believe he will not re-partner if released into the community. He appears to be incapable of having a peaceful and harmonious relationship with a woman.
The Tribunal notes that a Risk of Re-offending Report assigned him 16 points out of 22[218] which indicates a relatively high risk of re-offending. It is true that on paper, the applicant has completed courses about aimed at his rehabilitation. However, when asked about his alcohol and anger management courses, he said he had attended classes to get points in detention. In the light of the totality of the evidence, the Tribunal is sceptical about the applicant’s motive and sincerity in undertaking such courses, the benefits of which remain untested in the community.
[218] Exhibit 14, Book of Respondent’s Material No 2, pages 398-399.
There is no expert evidence before the Tribunal as to the applicant’s likelihood of re-offending.
If released into the community, the applicant plans – after short periods with his daughters and parents - to live remotely. His future plans are a matter of some uncertainty and it is difficult to identify protective factors not previously present. He does not appear to have opened up to any of those close to him about the details of his offending. Unfortunately this lessens whatever protective factor his friends and family might otherwise be able to provide to him in the future, noting that their past support has not prevented him from offending.
The Tribunal considers having regard to the Tribunal’s findings as to the Applicant’s credibility, the risk of reoffending report referred to above, his past conduct, and the uncertainties surrounding his future the risk of the applicant engaging in further similar conduct on being returned to an unregulated environment is very high.
Applying the principles in paragraphs 5.2(3) and (5) of the Direction, the Tribunal is of the view that the harm that could be caused from future similar offending is so serious that even countervailing considerations are insufficient to justify revoking the mandatory cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs compellingly against revocation of the cancellation of the Applicant’s visa.
Primary Consideration 2: Family Violence
Paragraph 8.2 of the Direction provides:
(1)    The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)    This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)    In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The circumstances of the applicant’s family violence conduct do not require repetition.
Much of what has been said in respect of Primary Consideration 1 pertains to the applicant’s sad history of family violence, and is adopted for the purposes of this consideration.
With regard to subparagraph 3(a) of paragraph 8.2 of the Direction, even if one looks solely at the court decision of 2 June 2021, it is clear that this applicant has been convicted of no less than seven offences that involve family violence which spanned a period of about 22 months, which is frequent offending by any measure. There is strong evidence of increasing seriousness, as in March 2019 and in December 2020, in addition to DVO breaches, there were associated assaults occasioning bodily harm charges which attracted sentences of two years imprisonment and two years and two months imprisonment respectively.
With regard to paragraph 3(b) of paragraph 8.2 of the Direction. the cumulative effect of the applicant’s family violence related offending forms part of what the Tribunal has said above in relation to sub-paragraph (e) of paragraph 8.1.1(1) of the Direction, and those remarks are equally applicable here.
With regard to sub-paragraph 3(c)(i) of paragraph 8.2 of the Direction, the Tribunal is deeply troubled that this applicant, whilst paying lip service to accepting responsibility, actually complained about being provoked by his now deceased partner into assaulting her, and went so far to express anger at her for his present circumstance. The Tribunal is not satisfied that this applicant expresses any genuine acceptance of his personal responsibility for his family violence related conduct.
In the same vein, and with regard to sub-paragraph 3(c)(ii) of paragraph 8.2 of the Direction, the Tribunal is deeply concerned that this applicant did not appear to even begin to understand the impact of his behaviour on the three women he has abused or the children who have witnessed and subjected to it. He went so far as to call his now deceased former partner “weak”, and blamed her for provoking him.
Moreover, with regard to sub-paragraph 3(c)(iii) of paragraph 8.2 of the Direction, the Tribunal finds itself again deeply concerned that any efforts by the applicant to address factors which contributed to his conduct have been disingenuous, and made for the purpose of gaining points in detention, and bolstering his case before this Tribunal.
For the purposes of sub-paragraph (d) of paragraph 3 of paragraph 8.2 of the Direction, it is clear that the applicant had committed no less than five family violence related offences prior to the cancellation of his visa in 2016. The Tribunal considers that the warning about his migration status which accompanied the restoration of his visa in 2017 must be construed as a formal warning about the consequences of family violence.
All things considered, the Tribunal is of the view that this applicant’s history of family violence, particularly that which occurred post warning. would place him on the top tier of Government concern.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs compellingly against revocation.
Primary Consideration 3: The Best Interests of Minor Children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of the minor children. Those factors relevantly comprise for present purposes:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
It is first necessary to identify the children actually or possibly relevant to this proceeding.
The only clear evidence before this Tribunal pertaining to relevant children affected by this decision are the children of the applicant.
With regard to sub-paragraph (a) of paragraph 4 of paragraph of paragraph 8.2 of the Direction, this applicant has two biological children, being daughters K and L, aged 16 and 13 respectively. He has not lived with them, or played a parental role on a full time basis since about 2015 at which time K would have been 9 and L, 4.
The applicant has over a period of years, elected to live remotely from his children, and in consequence he has played very little role in their lives since 2015. There have been long periods of little or no personal contact between the applicant and his daughters since 2015, the year of the rock throwing incidents. There have been visits in 2021 and 2022, however otherwise contact has been limited mainly to phone calls and text messages some of which were not returned to the applicant.
With regard to sub-paragraph (b) of paragraph 4 of paragraph of paragraph 8.2 of the Direction, based on his past performance, the Tribunal considers that there is very little prospect for this applicant to ever play a positive role in his daughter’s lives, other than by staying out of them. His future plans as expressed before the Tribunal involved little more than fleeting initial contact following his release into the community, after which he would, after a short stay with his parents, again relocate remotely.
With regard to sub-paragraph (c) of paragraph 4 of paragraph of paragraph 8.2 of the Direction, the Tribunal does not have the benefit of any expert evidence as to the impact of the applicant’s prior conduct upon his children, however, it would be surprising if his past conduct had not impacted adversely in some way, and this may well have been exacerbated by the extended period of minimal contact. The Tribunal is confident that this applicant will continue to offend. If he lives remotely from them – either in Australia or in PNG – they will at least be shielded by distance from any future conduct. The Tribunal is of the view that it is not in the interests of the children that they be exposed to the applicant’s likely future conduct, as in the past they have been potential victims of his violence.
With regard to sub-paragraph (d) of paragraph 4 of paragraph of paragraph 8.2 of the Direction, it is likely that the extended period of separation from the applicant since 2015 has already impacted on the children. In one way this would be positive, as they have not been exposed to ongoing episodes of family violence. In the other, it would be negative as it is only natural for children to want to live in an harmonious environment of a united and happy family. The applicant’s pre-disposition to violence has in the past exposed the children to potential danger, and if he remains in Australia there is a remote and perhaps uncertain possibility that they may be in the future. This possibility will be excluded should he be returned to PNG, where it would be possible to remain in contact by phone and text in much the same way as he has over the past seven years.
With regard to sub-paragraph (e) of paragraph 4 of paragraph of paragraph 8.2 of the Direction, it appears that the children continue to reside with and be cared for by their mother and her current partner, who fulfil a parental role. There has been no criticism made to this Tribunal of the manner in which they do so.
With regard to sub-paragraph (f) of paragraph 4 of paragraph of paragraph 8.2 of the Direction, the Tribunal accepts that the children want their father to remain in Australia, and that this view is given increased weight having regard to the age and presumed maturity of L.
With regard to sub-paragraph (g) of paragraph 4 of paragraph of paragraph 8.2 of the Direction, as recounted above, there is evidence discussed above that the children have been exposed to and placed at physical or mental risk by the applicant’s past conduct.
With regard to sub-paragraph (h) of paragraph 4 of paragraph of paragraph 8.2 of the Direction, there is no clear evidence that either of the children have suffered physical or emotional trauma arising from the applicant’s conduct, however it is difficult to escape the conclusion that the very nature of his conduct and extended separation have not adversely impacted the children.
Had it not been for the email from L and K, this Tribunal would have been prepared to find that their best interests lay in non-revocation of the cancellation of the applicant’s visa.
Conclusion: Primary Consideration 3
For the purposes of Primary Consideration 3, the best interests of the children mentioned above weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.
Primary Consideration 4: The Expectations of the Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the possession they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.

Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case”.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[219]
[219] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Analysis – Allocation of Weight to this Primary Consideration 4
The applicant has clearly failed to meet the expectations of the Australian community, and the Tribunal is satisfied that there is an unacceptable risk that he will offend again.
The Tribunal finds that his record of criminal and other serious conduct are such that the Australian community would expect that his visa remain cancelled.
Conclusion: Primary Consideration 4
Accordingly, Primary Consideration 4 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
9.1 International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence.
This Other Consideration 9.1 is not relevant, and is given neutral weight.
9.2 Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(a) - Age and health
The Applicant is a 40 year old man. He has suffered a TBI, and in consequence has a titanium plate attached to his skull. He also suffers occasional seizures in consequence of epilepsy. The applicant has a history of declining epilepsy medication other than that he specifically requested.
He has been in receipt of the DSP since sustaining the TBI, although the precise extent of impairments he suffers and which led to that entitlement are not the subject of evidence before the Tribunal.
Whatever the extent of his impairments and his overall state of health, it is clear that the applicant has self-assessed as being capable of doing labouring work, and he gave evidence (which the Tribunal accepts) that he has been working two to three days a week doing carpentering etc for a period of some years.
There is no expert evidence before the Tribunal regarding any health consequences or vulnerabilities which might be posed by the applicant’s titanium plate.
As noted above the applicant has a lengthy history of non-compliance with medication prescribed for his epilepsy. There is limited evidence before the Tribunal that the applicant has suffered seizures, but these have been in association with the consumption of fruit based alcohol he has brewed, or use of the illicit substance suboxone.
The Tribunal accepts that the applicant’s health is a serious impediment to the applicant’s relocation to PNG. There is a small relatively modern hospital at Daru, where he proposes to live. The Tribunal is however aware from personal experience that reliable timely delivery of medication fit for purpose is problematic, as is of course, the applicant’s preparedness to take medication.
Paragraph 9.2(b) - Language or cultural barriers
English is widely spoken in PNG in urban areas, and in Daru. The applicant does not speak Motu but has some understanding of it. The Tribunal accepts that the applicant has lived outside PNG culture for about 34 years, and he may face challenges assimilating back into it, however he has relatives there who may be able to assist him to do so.
Paragraph 9.2(c) - any social, medical and/or economic support available to that non-citizen in that country.
The Tribunal is well aware that in PNG, there is no Centrelink, and no DSP. It is unclear to the Tribunal the extent to which, if any, the applicant may benefit from resource based land owner entitlements. For the purposes of these reasons, the Tribunal assumes he will not be eligible for any.
The applicant will be left to fend for himself in PNG, and this will undoubtedly require significant adjustment. On the other hand, the applicant would take with him his education from Australia, which can be assumed to be of a higher standard than that of many citizens of PNG. He is literate, numerate, and has work experience in Australia which should stand him in good stead. He has declared himself physically capable of work. He was able to name many relatives, some of whom are in formal employment, and others are self-sufficient fishing etc.
Overall in the circumstances of this case, this Other Consideration 9.2 weighs heavily in favour of revocation of the cancellation of the applicant’s visa.
9.3 Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Tribunal accepts that Tamara Miller and her daughters have all expressed a desire for the applicant to remain in Australia.
In the circumstances, the Tribunal gives this Other Consideration 9.3 slight weight in favour of revocation.
9.4 Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers, reflecting the principles at paragraph 5.2 thereof, must have regard to the following two factors:
· the strength, nature and duration of ties to Australia; and
· the impact on Australian business interests
9.4.1 Strength, Nature and Duration of Ties to Australia
Decision makers are required by paragraph 9.4.1(1) to consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
This applicant has lived in Australia for 34 of his 42 years. He has grown up here, been educated here, and worked here for a period of about 16 years until suffering his injuries. Presumably he has contributed to the community at least through paying taxes during his years of employment.
On the other hand, the applicant began offending four days before his sixteenth birthday, and has offended 70 times, including 35 times after his visa was reinstated.
All of the applicant’s close relatives including his parents, siblings and children live in Australia and have the right to do so indefinitely. He also has extended family here who are in a similar position. There does not appear to be any prohibition on any of member of the applicant’s family or circle of friends in Australia visiting him in PNG or remaining in touch by phone or text should they choose to do so, although the associated costs may be a problem.
The applicant’s deportation will probably impact most heavily on his mother, who, attended at the Tribunal to support him.
Tamara Miller will be deprived of any child support payments the applicant may have made between now and when the daughters each turn 18.
The applicant’s daughters will go through the unhappy experience of continuing to grow up with very little physical contact with their father, and this may well impact as discussed earlier.
There is limited evidence before the Tribunal as to how others in the applicant’s family and circle of friends will be impacted, and the Tribunal is unable to make findings in that regard.
Decision makers are required by paragraph 9.4.1(2) to have regard to the strength nature and ties the Applicant has to the Australian community having regard to how long the applicant has resided in Australia, including whether the applicant arrived as a young child, noting that less weight should be given where the Applicant began offending soon after arrival in Australia, and more weight should be given where the applicant has spent time contributing positively to the Australian community. Decision makers must also have regard to the strength, duration and nature of any family ties or social links with Australian citizens, permanent residents, or those who have an indefinite right to remain in Australia.
The Applicant arrived in Australia at the age of 6 years, and began offending at the age of nearly 16. The Tribunal does not consider that less weight should be given to the duration of his residence in Australia of paragraph 9.4.1(2)(a)(i) of the Direction.
He appears to have worked for a period of some 14 years, and presumably contributing to the Australian community during that period. In consequence of these factors the Tribunal gives weight to the period the Applicant has contributed positively to the Australian community having regard for paragraph 9.4.1(2)(a) (ii) of the Direction.
The Tribunal also accepts that the applicant has very strong family ties and social ties of long duration with Australian citizens, permanent residents, or those who have an indefinite right to remain in Australia.
This applicant has lived in Australia for over 34 year after arriving as a young child, and this raises the question of possible increased tolerance of his conduct as contemplated in Paragraph 5.2(4) of the Direction.
The Tribunal considers that the applicant has already been afforded the full extent of any increased tolerance by reason of the fact that his visa was previously restored to him in 2017. Unfortunately for this applicant, the serious nature of his violent offending as recorded above does not make this a case where the Tribunal considers any further increased tolerance should be extended
This Other Consideration 9.4.1 nevertheless weighs heavily in favour of revocation of the mandatory cancellation of the Applicant’s visa.
9.4.2 Impact on Australian Business Interests
There is no evidence before the Tribunal that the Applicant’s deportation will impact on Australian business interests in the manner contemplated by Direction 90.
This Other Consideration 9.4.2 is therefore given neutral weight.
Overall, the Applicant’s links to the Australian community in paragraph 9.4 weighs in favour of revocation of the mandatory cancellation of his visa.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral weight;
(b)extent of impediments if removed: weighs heavily in favour of revocation;
(c)impact on victims: weighs slightly in favour of revocation; and
(d)links to the Australian community: weighs heavily in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, The Tribunal finds as follows:
·Primary Consideration 1 weighs compellingly in favour of non-revocation;
·Primary Consideration 2 weighs compellingly in favour of non-revocation;
·Primary Consideration 3 weighs slightly in favour of revocation;
·Primary Consideration 4 weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration 3 and Other Considerations (b), (c), and (d) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations 1, 2, and 4.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed.

I certify that the preceding 356 (three hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

................SGD........................................................
Associate
Dated: 31 October 2022

Date(s) of hearing: 12 & 13 October 2022

Date final submissions received: 13 October 2022

Applicant: In person

Solicitors for the Respondent: Tigiilagi Eteuati
Australian Government Solicitor
Annexure A – Exhibit Register

Exhibit Number Description of Exhibit Party Date of Document Filing Date

1
G Documents
(G1-G20, paged 1-140) R Various 19 Aug 2022

2 Applicant’s Submissions
Email dated 26 September 2022
Applicant’s Letter to Honour, lodged on 26 September 2022 A 26 Sep 2022 26 Sep 2022

3 Applicant’s Emailed Statement dated 26 September 2022 A 26 Sep 2022 26 Sep 2022

3.1 Applicant’s Statement lodged on 4 October 2022 A - 4 Oct 2022

4 Statement of Facts, Issues and Contentions & Annexures R 6 Oct 2022 6 Oct 2022

4.1 Statement of Facts, Issues and Contentions A - 7 Oct 2022

Other Evidence

5 Applicant’s Clinical Records A Various 26 Sep 2022

6 Applicant’s Do-It Program Participant Workbook, completed 15 August 2022 A 15 Aug 2022 28 Sep 2022

7 Character Reference of Mr N Holland dated 27 September 2022 A 27 Sep 2022 28 Sep 2022

8 Applicant’s further submissions:
1 – Anger Management workbook
2 – Do it Program Workbook
3 – Further Anger Management Workbook A - 30 Sep 2022

9 Applicant’s Statement (undated) typed by Aunty Walo A - 4 Oct 2022

10 Letter of Support of Ms L T English & Ms K M English dated 4 October 2022 A 4 Oct 2022 4 Oct 2022

11 Letter of Support of Ms T Miller lodged 5 October 2022 A - 5 Oct 2022

12 Forwarded Email dated 30 September 2022 – regarding A’s FOI request from Department of Home Affairs A 6 Oct 2022
&
30 Sep 2022 6 Oct 2022

13 Book of Respondent’s Material (1-2, paged 1-195) R Various 6 Oct 2022

14 Book of Respondent’s Material No 2 (6, paged 1-1,035) R Various 6 Oct 2022

14.1 Book of Respondent’s Material No 2 (1-6, paged 1,036-1,097) R Various 11 Oct 2022

15 Book of Applicant’s Material (1-12, paged 1-388) R Various 6 Oct 2022

16 Declaration of Dan Larry lodged 10 October 2022 A - 10 Oct 2022

17 Statement of Dan Larry dated 6 October 2022 A 6 Oct 2022 10 Oct 2022

Date(s) of hearing:	12 & 13 October 2022
Date final submissions received:	13 October 2022
Applicant:	In person
Solicitors for the Respondent:	Tigiilagi Eteuati Australian Government Solicitor

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	G Documents (G1-G20, paged 1-140)	R	Various	19 Aug 2022
2	Applicant’s Submissions Email dated 26 September 2022 Applicant’s Letter to Honour, lodged on 26 September 2022	A	26 Sep 2022	26 Sep 2022
3	Applicant’s Emailed Statement dated 26 September 2022	A	26 Sep 2022	26 Sep 2022
3.1	Applicant’s Statement lodged on 4 October 2022	A	-	4 Oct 2022
4	Statement of Facts, Issues and Contentions & Annexures	R	6 Oct 2022	6 Oct 2022
4.1	Statement of Facts, Issues and Contentions	A	-	7 Oct 2022
Other Evidence
5	Applicant’s Clinical Records	A	Various	26 Sep 2022
6	Applicant’s Do-It Program Participant Workbook, completed 15 August 2022	A	15 Aug 2022	28 Sep 2022
7	Character Reference of Mr N Holland dated 27 September 2022	A	27 Sep 2022	28 Sep 2022
8	Applicant’s further submissions: 1 – Anger Management workbook 2 – Do it Program Workbook 3 – Further Anger Management Workbook	A	-	30 Sep 2022
9	Applicant’s Statement (undated) typed by Aunty Walo	A	-	4 Oct 2022
10	Letter of Support of Ms L T English & Ms K M English dated 4 October 2022	A	4 Oct 2022	4 Oct 2022
11	Letter of Support of Ms T Miller lodged 5 October 2022	A	-	5 Oct 2022
12	Forwarded Email dated 30 September 2022 – regarding A’s FOI request from Department of Home Affairs	A	6 Oct 2022 & 30 Sep 2022	6 Oct 2022
13	Book of Respondent’s Material (1-2, paged 1-195)	R	Various	6 Oct 2022
14	Book of Respondent’s Material No 2 (6, paged 1-1,035)	R	Various	6 Oct 2022
14.1	Book of Respondent’s Material No 2 (1-6, paged 1,036-1,097)	R	Various	11 Oct 2022
15	Book of Applicant’s Material (1-12, paged 1-388)	R	Various	6 Oct 2022
16	Declaration of Dan Larry lodged 10 October 2022	A	-	10 Oct 2022
17	Statement of Dan Larry dated 6 October 2022	A	6 Oct 2022	10 Oct 2022