GMDN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

GMDN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3981 (9 October 2020)
Division:GENERAL DIVISION
File Number(s): 2019/3012
Re:GMDN
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries AO
Date:9 October 2020
Place:Canberra

The reviewable decision of the delegate of the Minister for Home Affairs made on 21 May 2019 is set aside, and in substitution the cancellation of GMDN's visa is revoked pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958.
........................................................................
Deputy President Gary Humphries AO

Catchwords
MIGRATION – applicant’s Class BB Subclass 155 Five Year Resident Return Visa cancelled – mandatory cancellation of visa – non-revocation of mandatory cancellation by delegate on review – visa cancelled because applicant did not pass the character test – substantial criminal record under section 501(7) considered – whether discretion in section 501CA to revoke mandatory visa cancellation should be exercised – whether another reason to revoke exists – considerations under Direction No 79 – best interests of applicant’s minor child considered – minor child the subject of children’s proceedings – the protection and expectations of the Australian community considered – strength nature and duration of ties – impediments to applicant if removed to Papua New Guinea – evidence from expert on wantok system considered – applicant’s atrial fibrillation considered – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Crimes Act1900 (ACT) s 116.
Criminal Code 2002 (ACT) s 712A
Migration Act 1958 (Cth) 501, 501(4), 501(7), 501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705
Teoh v Minister of State for Immigration and Ethnic Affairs [1994] FCA 1017
REASONS FOR DECISION
Deputy President Gary Humphries AO
9 October 2020
INTRODUCTION
GMDN was born in Papua New Guinea (PNG) and is still a citizen of that country. He has lived in Australia since the age of 15, but soon after arriving here he commenced a pattern of criminal offending which continued for the following twenty or so years. In October 2018 a delegate of the Minister for Home Affairs (now Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) decided to cancel GMDN’s Class BB Subclass 155 Five Year Resident Return visa under s 501(3A) of the Migration Act 1958 (the Act). This was a mandatory cancellation as the delegate was satisfied GMDN did not pass the character test by virtue of s 501(6)(a) on the basis that he had a substantial criminal record pursuant to s 501(7)(c)[1]. On review on 21 May 2019 another delegate decided not to revoke the original decision under s 501(4).
[1] In this decision, italicised text generally denotes a direct quotation.
On 31 May 2019 the Tribunal received an application from GMDN seeking review of the decision to not to revoke the cancellation of his visa. The Tribunal considered this application and on 13 August 2019 decided to affirm the delegate’s decision not to revoke the mandatory cancellation of his visa. GMDN appealed this decision to the Federal Court. By Order dated 28 February 2020 Justice Jagot set the decision aside and remitted it for fresh consideration to the Tribunal.
The matter was remitted to me. I heard this matter by videoconference on 13-15 July 2020, on account of arrangements put in place during the coronavirus pandemic. At that time, the Tribunal heard evidence from GMDN, GMDN’s mother, his son’s ACT Child and Youth Protection Services case manager, Ms Amanda Jones, and Dr Grant Walton, a lecturer at Australian National University specialising in PNG. Both the Minister and GMDN were represented at this hearing.
Contemporaneously to the hearing in the Tribunal, proceedings were under way in the ACT Childrens Court concerning the arrangements for care and protection of GMDN’s son. Section 712A(1) of the Criminal Code 2002 (ACT) makes it an offence to publish information that identifies someone else as a person who is or was a child or young person the subject of a childrens proceeding. Although s 35 of the Administrative Appeals Tribunal Act 1975 requires that the Tribunal is to recognise the principle that it is desirable… that evidence given before the Tribunal …should be made available to the public, in the present circumstances the Tribunal is persuaded that this principle should be put aside to avoid conflict with the provisions of s 712A(1). Since the publication of GMDN’s real name may lead to the identification of his son as a child the subject of a children’s proceeding in the ACT court, I have made an order pursuant to s 35 to provide GMDN with the pseudonym. Further, in accordance with s 712A(2), in my decision I will refer to GMDN’s son as ‘A’ and will not expressly identify the name of GMDN’s mother or the mother of A.
THE EVIDENCE
GMDN was born in PNG in February 1979 and came to Australia in January 1995, aged 15. He has lived in Canberra most of the time since then. The evidence he presented was contained in a statutory declaration he made dated 4 June 2020 and another (signed but not witnessed) dated 6 July 2020.[2] He also gave evidence by videoconference from Villawood Immigration Detention Centre.
[2] Exhibit A1, Items 1 and 9.
GMDN has an extensive criminal record about which he was cross-examined during the hearing.
On 29 May 1997, some two years after arriving in Australia, he was sentenced in the ACT Childrens Court with minor theft and robbery – using force on a person.[3] On 30 October 1997, he was sentenced with breaching orders previously made by the same court, and on 18 December 1997 he was sentenced, again in the Childrens Court, for robbery – using force on a person, destroy/damage property, and offensive behaviour in a public place.[4] In his earlier statutory declaration GMDN said that he had a hard time adjusting as a teenager when his family moved to Canberra, that he became involved with a crowd who took advantage of my naivety, low self-esteem and my eagerness to impress, and that he was subject to a sexual assault at about the age of 17 when he was drunk which he believed contributed to his life getting out of control.[5]
[3] Exhibit R1, at 39.
[4] Ibid.
[5] Exhibit A1, Item 1 or 9.
Over the next seven years GMDN was convicted of a large number of offences, all in the ACT Magistrates Court. On 3 August 1998, he was sentenced for destroy/damage ACT government property, on 6 August 1998 for escaping, on 9 March 1999 for minor theft, and on 8 July 1999 for destroy/damage property.[6] On 16 March 2000, GMDN was sentenced for six offences relating to destroying or damaging of property and five counts of minor theft.[7] On 15 November 2000, he was sentenced again for minor theft, and on 19 March 2001 for possess prohibited substance.[8]
[6] Exhibit R1, at 39.
[7] Ibid.
[8] Ibid.
On 18 October 2002, GMDN was sentenced in the ACT Magistrates Court for:[9]
(a)Possess prohibited substance
(b)Possess knife without reasonable excuse
(c)Fail to pay taxi driver fare
(d)Two counts of breach/convict/sent/Imm.Release/fail behave
(e)Obstruct/hinder/intimidate/resist Commonwealth public official
(f)Cth - Trespass on premises
(g)Breach/sent/immed release/Fail Pay Comp
[9] Ibid, at 38 – 39.
He was sentenced for a further three offences in the ACT Magistrates Court in 2004: on 17 August for two counts of destroy/damage property not exceeding $1000 in value, and on 3 December for offensive behaviour in a public place.[10]
[10] Ibid, at 38.
On 5 May 2006 GMDN was sentenced in the District Court of South Australia for possessing cannabis for sale.[11] A few months earlier, on 14 February 2006, he had been sentenced in the Adelaide Magistrates Court with hinder police. He gave the following account of how those convictions arose.
[11] Ibid.
In 2005 he borrowed money from someone he described as a loan shark. He had met this man at a bar in Canberra, and he confided in this man about his financial difficulties. Later that day the man met him again and handed him $2000 in cash. He was told he had to repay the money within two months. GMDN used the money to pay some bills, rent, electricity as well as buy some textbooks he needed for the pathology course he was enrolled in. Three or four weeks after borrowing the money, GMDN was at home when he answered the door. Two men wearing balaclavas forced their way in, kicked him in the chest, bound and gagged him and put a sack over his head. He was made to sit on a chair, and the men began to tap his kneecaps with a hammer, telling him that you owe money, and if you don’t do this we are going to take your kneecaps. This referred to going to Adelaide and picking up a bag for them. They punched him, and he agreed to do as they said. He told the Tribunal he did not call the police because I didn’t know what I had gotten myself into.
He later flew to Adelaide where he was met and driven to the bus station, and given a bag to take onto the bus to Canberra. While waiting for the bus to depart, the bus driver asked him to get off the bus to talk to police officers. As GMDN got off the bus he panicked and ran away, but was caught.
He was told that the bag contained cannabis. He was sentenced to a term of two years and four months for the cannabis offence, of which he served 10 months. The sentencing remarks of the judge in the District Court made reference to the evidence that GMDN had taken a loan from a black market credit provider which he could not repay, and that this led to him being recruited as a drug mule. His Honour made these remarks:[12]
There is much to be said in your favour. Your counsel referred to some matters… I accept the circumstances which led you to offend in the way that you have were as I was informed by your counsel. Such circumstances are not, however, particularly exceptional or unique, because those who are involved in the drug trade often prey on and recruit people like you who have debts to act as their couriers.
[12] Ibid, at 51.
While in prison, he witnessed another inmate commit suicide. The conviction and time in prison shook me. On his return to Canberra he cut [himself] off from that scene, that is, the circles which included criminal associates. Subsequently, GMDN received a letter from the immigration department advising him that his visa may be cancelled on account of this conviction in South Australia. He made representations in response to the letter, in which he said:[13]
This is my first time in prison and it certainly has been a wake up call. The rehabilitation experience has opened up my eyes and taught me how miserable life can be with (sic) when you choose to continue along the wrong path. Freedom is a privilege that must not be taken for granted. While out on parole I plan to get a job and resume my studies. I will also partake in alcohol counselling and anger management courses.
…
So from the depths of my heart, I request an opportunity to remain in Australia.
[13] Ibid, at 105.
He said he did not complete the pathology course because of this imprisonment.
In August 2006, GMDN was notified of a decision not to cancel his visa under s 501 of the Act.[14] He told the Tribunal that he did not in fact undertake any alcohol counselling or anger management courses following his release from prison in South Australia.
[14] Ibid, at 103.
He told the Tribunal that he could not recall whether he told the police, after his arrest, about what the two men had done to him, but that if he had not done so it was because he feared for his life. He never saw the two men, or the man who had given him the $2000, again.
On 5 and 6 March 2007, GMDN was sentenced in the ACT Magistrates Court for two counts of common assault and one of fail to appear after bail undertaking.[15] He explained, however, that he had been unable to appear because he was in custody in South Australia at the time he was required to appear in the ACT.
[15] Ibid, at 38.
On 14 September 2010, GMDN was sentenced in the ACT Magistrates Court for destroy/damage property not exceeding $1000.[16] He said the offence related to an incident which followed the breakdown of his relationship with the mother of his son (A), in early 2010. GMDN had left their former home and obtained his own flat. He and A’s mother agreed that he would be able to see A every two weeks. One day he learned that she planned to leave the ACT and move to Dubbo, NSW with A and her new partner. He went to her house. He had been drinking, but was not drunk, he told the Tribunal. He denied that alcohol had caused him to commit the offence. He confronted A’s mother and her new partner in the front yard of the house. He said they were yelling at him, antagonising him, making fun of him because they were taking A away and he couldn’t stop them. He picked up a rock and threw it through the back window of the car. He did this because he feared he would not see A again, and felt helpless. He said it wasn’t done to threaten A’s mother or her partner. He told the Tribunal that the car was legally his, but he had given it to A’s mother to transport A. He later paid for the repairs to the vehicle.
[16] Ibid, at 37.
GMDN saw his son A only once while A’s mother was in Dubbo. About two years later, her relationship with her new partner broke down, and she formed a new one. A’s mother moved with A to live with her new partner in Young, NSW. While she was in this relationship, they came to live in Canberra, and GMDN was able to resume contact with A. He had the care of A every second weekend and for half of the school holidays. At this time A told him about abuse he had suffered at the hands of his mother’s new partner.
This arrangement for occasional care of A ended in 2017. GMDN told the Tribunal that he entered a relationship at that time with Daniela Lovric, whom he later married, and A’s mother reacted by refusing him contact with A. He tried to organise mediation with A’s mother through Relationships Australia but was informed that A’s mother could not be contacted. He didn’t follow up because of other issues that were occupying him with Ms Lovric. Ms Lovric had been diagnosed with mental illness and was facing a contest with her former partner over the care of her own children. However, GMDN went to A’s school to check on the welfare and well-being of A. He said that this was the last occasion on which he had seen A in person.
On 2 May 2011, GMDN was sentenced in the ACT Magistrates Court in relation to:[17]
(a)Special driver PCA alcohol in blood/breath
(b)Drive while licence suspended by law
(c)Use unregistered/suspended vehicle
(d)Breach/Conv/Sent/Imm.Release/ Fail behave (Recog pre 2/6/06)
(e)Assault occasioning actual bodily harm
(f)Destroy/damage property not exceeding $1000
(g)Common assault
[17] Ibid, at 35 – 36.
In relation to the offence of assault occasioning actual bodily harm, he told the Tribunal that he had thrown a laptop computer at a wall, and that it shattered and part of it struck the arm of his then partner, Ms Molean, bruising or cutting her. He said he threw the laptop because he was frustrated and very drunk at the time. With respect to the count of common assault, he denied assaulting Ms Molean then or on a separate occasion.
On 13 May 2013, GMDN was sentenced in the ACT Magistrates Court with Minor theft (replacement value $2,000 or less).[18] This related, he said, to the theft of a bottle from his local bottle shop when he was very drunk on New Year’s Eve. He was sentenced in the same court on 6 July 2016 for a drink driving offence.
[18] Ibid, at 35.
On 1 December 2017, GMDN was sentenced in the ACT Magistrates Court with contravene family violence order (FVO).[19] His evidence was that Ms Lovric had taken out an FVO against him after a disagreement, but they had reconciled. He was in bed in the home they shared when the police arrived and he was charged. He said that both he and Ms Lovric thought that she had removed the order. He said they were married a week later.
[19] Ibid, at 34.
On 21 September 2018, GMDN was sentenced in the ACT Magistrates Court with use carriage service to menace/harass/offend, and contravene family violence order.[20] In his 4 June 2020 statutory declaration,[21] he said that these offences followed the breakdown of his marriage with Ms Lovric and involved me trying to speak with Daniela despite the existence of an order. He sent her about 20 abusive text messages on 1 June 2018. He said in his statutory declaration that the messages were terrible and offensive and that he was so ashamed of my behaviour towards her. I would never want to do any harm to her. He said he was devastated when his marriage broke down but that he should have controlled his emotions better. He said he had assisted her at court when she herself faced proceedings for breaching an FVO in relation to an ex-partner, and at that time she had been friendly towards me. He said I felt like…we would be able to work things out. However, he said:[22]
I was clingy and desperate, and I thought that I was what she needed. I see now that I need to have emotional restraint, not let my emotions get the better of me. What I did was intimidating, offensive, and made things worse.
[20] Ibid, at 33 – 34.
[21] Exhibit A1, Item 1, at 5 – 6.
[22] Ibid, at 6.
He admitted to driving past Ms Lovric’s house on 2 June 2018, contrary to an FVO to keep at least 100m away. Under cross-examination he said he could not remember whether he was aware of the FVO on that day. He agreed that he was not drunk when he drove past Ms Lovric’s house on 2 June 2018, nor was the incident caused by alcohol. In addition, GMDN approached Ms Lovric after work on 3 July 2018. He denied being drunk. He was hoping to talk things through to save his marriage, he said. He also agreed that he had sent her an email on 3 July 2018 containing an image of his face, with the message I don’t know whether you’ll receive this message or if the cops are reading it. I don’t care anymore.[23] He denied that these incidents were an attempt to control Ms Lovric. He said he wanted to save his marriage, and was emotionally and mentally distraught at the time, and this had contributed to his behaviour. He said it wasn’t alcohol.
[23] Exhibit R1, at 61.
Ms Lovric agreed to discharge the FVO at the end of 2018, and she and he are friends now.[24] He now better understands the borderline personality disorder from which she suffers. He denied the proposition put by counsel for the Minister that When the women with whom you have close relationships do things which frustrate you, you lash out in anger.
[24] Exhibit A1, at 6.
GMDN said in his statutory declaration of 4 June 2020 that he was ashamed of his offending. I take responsibility for it. I am determined to not re-offend. Many of his offences had involved being intoxicated. His counsel also drew attention to some documents indicating an involvement with cannabis as a younger man.
In his statutory declaration he set out his attempts at rehabilitation.[25] He said he had abstained from alcohol since entering immigration detention, despite being offered home brew more than once. He had engaged with mental health services whilst in detention. He said he had been able to see a psychiatrist there, and referred to the issues he had discussed with him during five or so consultations. A psychologist had offered him strategies for dealing with his emotions. GMDN described those strategies and how they have helped him think differently about emotions such as anger and jealousy, and about his dependence on alcohol. He was disappointed when the psychologist left the detention centre in mid-2019. He said he asked about alcohol programs but was told that none were available. In his statutory declaration of 6 July 2020,[26] he said there were no courses on stress, anger or violence while he was imprisoned for the 2018 domestic violence offences, because the sentence was too short. He also said that there were no such courses available in immigration detention.
[25] See Exhibit A1, at 10 – 11.
[26] Exhibit A1, at 100.

The Tribunal was taken to clinical notes made while GMDN was in immigration detention. The psychiatrist records that GMDN [r]ecognises that he needs to make change in his attitude towards [Ms Lovric].[27] He noted that GMDN describes a determination to address alcohol use.[28] A few weeks later a mental health nurse noted that he looks at his own past history and sees recurring traits and behaviours that he has never dealt with, and further notes his acknowledgement that he has a drinking problem that he wants to deal with.[29]
[27] Ibid, at 48.
[28] Ibid.
[29] Ibid, at 47.
The psychologist he saw noted the following on 22 March 2019:[30]
Feels like he’s currently not stable enough to have a future, which arises from his partner having lost faith in him. He reported… feelings of powerlessness.
…
We explored some of his main worries: He reported that he’ll “never have a chance to see my son and complete my life here”, “I won’t have a chance to set things right”, “I can’t be there for my mother, and neither me or my son will get to see my mother before she dies”, “What if I get sent back to PNG? I can’t survive as I don’t know anyone there”.
[30] Ibid, at 46.
In a further note dated 22 May 2019, the psychologist recorded that he wants help with controlling his reactions to emotions, and staying away from alcohol.[31] He noted that loneliness was the main issue GMDN reported was driving his alcohol consumption. The clinical notes make other references to GMDN seeking psychological support and counselling for his alcohol use.[32]
[31] Ibid, at 44.
[32] See for example Exhibit A1, at 39, 40, 41, 48.
A note by the psychiatrist in November 2019 referred to a cardiac condition, and that GMDN was on medication and had seen a cardiologist.[33] A discharge referral report from the NSW health system in May 2019 suggested that GMDN suffered from atrial fibrillation, for which cardiac medication had been prescribed.[34] Other evidence suggested that this condition is the most common form of heart rhythm disorder and can create blood clots in the heart that can travel and cause strokes.[35] The condition may also cause a sufferer to pass out unexpectedly.[36] There was also some evidence suggesting GMDN suffered from sleep apnoea.[37]
[33] Exhibit A1, at 40.
[34] Exhibit R1, at 356 – 360.
[35] See Exhibit A1, at 106 – 116.
[36] Ibid.
[37] Ibid, at 39 – 41.
A second psychologist recorded in December 2019 that GMDN had concerns with his son, who had been in foster care for a couple of weeks. The psychologist noted that GMDN was exploring ways to communicate with his son, including by keeping a journal and writing him letters for future reference (presumably while direct contact was not possible).[38]
[38] Ibid, at 39.
His statutory declaration of 4 June 2020 set out his hopes for his future relationship with his son. He said that, if released again into the community, he would take steps towards getting care of my son back,[39] initially through visits. He spoke of counselling and courses, and had contacted the Domestic Violence Crisis Service about enrolling in a course addressing domestic violence behaviour, alcohol use and parenting skills. He had also contacted Marymead, a Canberra service which runs parenting courses.[40]
[39] Ibid, at 15.
[40] Ibid, at 16.
He said he would expect to be on a good behaviour bond if released, and would ask Corrections about counselling and courses available in that context. He commented on the huge toll alcohol has taken on his life, and that he planned to seek support through Alcoholics Anonymous.[41] He said I am determined to stay abstinent and I know that to do that, I need to be active in getting support.[42] He planned not to renew contacts with previous drinking friends. He acknowledged the need to have a productive and positive personal routine so as not to allow himself to become overwhelmed.[43]
[41] Ibid.
[42] Ibid.
[43] Ibid.
He said:[44]
My life is very different now…
I have made enough mistakes. I am getting older. I have a son to raise, and he has been going through so much. I want to be able to support my son.
I am adamant never to break the law again. I am begging for my life back. I will not take my residence in Australia for granted…
[44] Ibid.
The Tribunal received some evidence relating to GMDN’s relationship with Ms Lovric. A series of undated text messages between them appeared to disclose a friendly, even intimate, relationship. GMDN addressed her affectionately as princess and bubb,[45] and she discussed candid details of her health with him. In addition, an email dated 16 July 2019, purportedly from Ms Lovric, was before the Tribunal. It read:[46]
To whom it may concern,
I am [GMDN]’s ex-wife Daniela lovric. Me and [GMDN] are currently in contact and provide emotional support to each other due to our health conditions.
Kind regards
Daniela lovric
[45] Exhibit R1, commencing at 516.
[46] Exhibit R1, at 514.
A further email dated 12 April 2020, again purportedly from Ms Lovric, read:[47]
To whom it may concern
This is an email to confirm that me daniela lovric and [GMDN] are in contact, we have been on and off since his (sic) been in villawood. We don’t have anyone else and find we can talk to each other about life and get through tough times together. He is my only support at the moment I have no family. Due to my illnesses and being in isolation I find [GMDN] helps me to calm down when I’m feeling uneasy and alone. We talk most days multiple times a day about every day things, programs, shopping and the more meaningful deep conversations. Sometimes when I have panic attacks when I’m at home or in society I call [GMDN] who helps me to ground myself and calm down. As I have no friends or family and with being in and out of hospital every 6 to 8 weeks, [GMDN] has helped me to get through some tough times. We still have our frights like any relationship. I would say we are friends and are there for each other, it’s definitely different to when we were dating but there’s that mutual understanding.
Kind regards
Daniela lovric
[47] Exhibit A2.
However, the Tribunal’s attention was also drawn to other correspondence apparently from Ms Lovric. An email dated 15 July 2018 made reference to GMDN in these terms:[48]
… I live in Canberra, last year I entered into a relationship with [GMDN], it was very abusive at which I suffered seriously, and ended up with mental illness and now on medication. I have been non stop harassed, stalked and abused by him since trying to leave months ago.
…
He is now locked up till July 31^st. I am in fear they will let him out. I can’t sleep dreading up and coming court. Since he is a not a citizen can u (sic) please look into having him deported as he is a threat to the community.
[48] Exhibit R1, at 342.
Ms Lovric was not called by GMDN to give evidence. In his first statutory declaration he said he asked her to give evidence to the Tribunal but she was really anxious about the idea. She was afraid about being called up and asked questions.[49]
[49] Exhibit A1, at 7.
Regarding his son A, GMDN told the Tribunal that he now communicates with him by FaceTime, by text message and by telephone (and more recently by TikTok).[50] He said we reconnected at the beginning of 2020, arranged through Ms Jones of Child and Youth Protection Services. He said he was messaging A four or five times a week while A was living with GMDN’s mother, and two to three times a week since then. He last texted A about a week before the hearing.
[50] Ibid, at 13.
If released into the community, GMDN said he would live with his mother. He hoped, in that circumstance, to be able to increase contact with his son A, initially through a one-hour meeting per week. He had discussed that option with Ms Jones. He saw that arrangement as temporary, until he got himself sorted out. He explained that he meant by this that he would need to do programs to address his problems with alcohol and to give himself better parenting skills (including skills required to deal with his son’s problems), and get a job and suitable accommodation. He said he would like to be able eventually to share responsibility for A equally with A’s mother. If A’s mother was unable to share that responsibility, he was willing to take it wholly upon himself. He told the Tribunal he felt he would be able to do this.
He told the Tribunal he still has an issue with alcohol – it is the reason that I am here, he said – which he wanted to deal with…as effectively as possible. He said that the last time he had used alcohol was when he had sent the abusive text messages to Ms Lovric on 1 June 2018.
A letter of support from Mr Raylutz Garrahy, who had known GMDN for 17 years, was before the Tribunal. It referred to conversations in which GMDN had expressed remorse for his past actions. He described him as a hardworking man.[51] Some support for this proposition came in the form of evidence from Mr John Dennehy, who had previously employed GMDN and indicated a willingness to do so again, workplace circumstances permitting.[52]
[51] Exhibit R1, at 325.
[52] Exhibit A1, at 53.
Amanda Jones
Ms Amanda Jones is employed by ACT Child and Youth Protection Services (Child Services). She gave the following evidence at the hearing.
She has been the case manager of GMDN’s son, A, since November 2019. She took on this responsibility when Child Services received a report that A’s mother was not coping with her children, and had placed her two younger children into voluntary care. A’s mother’s mental health deteriorated at that time; Ms Jones said that A’s mother had told her she was going to run into guns, she required Child Services to collect A from school and when Ms Jones tried to communicate with her, she locked her out of her house. She refused to engage with Ms Jones, and was threatening to harm the neighbours’ children. Ms Jones said she understood A’s mother had been diagnosed with a borderline personality disorder and was using cannabis excessively.
Emergency action was then undertaken with respect to A. He was placed with two successive foster families before being placed in the care of his paternal grandmother. GMDN assisted with making this arrangement through telephone calls from Villawood Detention Centre. A remained with his grandmother from late December 2019 to early May 2020, when he was returned to foster care. Ms Jones said that GMDN’s mother was finding the arrangement increasingly stressful, in part because A was not attending school due to coronavirus restrictions. Subsequently a restoration program was arranged for A to be returned to his mother’s care; by that time she had received counselling and was clean. A was restored to his mother’s care in late June 2020.
In relation to the care and protection proceedings then on foot before the ACT Childrens Court in relation to A, Ms Jones said that her expectation was that the court would approve an arrangement whereby responsibility for A would be shared by A’s mother and the Director-General of Child Services for a period of two years. Under this arrangement A would reside with his mother, but Child Services would retain the power to intervene if at any stage her mental health deteriorated, she began using drugs in a harmful way or if she entered into a relationship that was considered dangerous to A. (GMDN subsequently gave further evidence to me about these proceedings in the Childrens Court. He said he had instructed his legal representative before that court to agree to the shared care arrangement described above by Ms Jones, subject to clarification of his right to be notified in the event that A were to be injured.)
Ms Jones said she had supervised a gradual return to contact between GMDN and A. This began with letters between the two, followed by text messages, phone calls and FaceTime. She no longer had any concerns about that contact, and GMDN and A now initiated communication themselves. Arrangements for face-to-face contact between the two had been postponed because of coronavirus restrictions. Ms Jones said that A wanted to have a face-to-face meeting with his father.
She had seen some of the text messages exchanged between GMDN and A. She considered that they were positive and appropriate and were child-centred, which she explained meant that GMDN spoke in these conversations about issues that interested his son. She said that GMDN seemed quite supportive of his son, and A seemed to enjoy that contact. A wants to maintain contact with his father, she said.
Ms Jones said that if GMDN were to re-enter the Australian community, physical contact with his son would be initially supervised, but then gradually they would build that contact up until it was unsupervised. Contact would initially be on a weekly basis, but could evolve into overnight or weekend stays if suitable accommodation was available. The approach of Child Services was to work with parents seeking to reconnect with their children on the issues we think they need to address. In the case of GMDN this would include addressing his alcohol misuse and engaging in a behaviour change program in relation to domestic violence. She would also favour parenting education for him. Undertaking these programs might be made a precondition for his contact with A. Child Services might also require drug testing or urine analysis to ensure that a parent in this position was clean.
Ms Jones said A’s mother was positive at this time about GMDN undertaking a program to allow physical contact with A. However, Child Services was not envisaging at this time an arrangement for care of A to be shared between her and GMDN. Ms Jones considered that it would be in A’s best interests for GMDN to remain in Australia, in order that A have contact with both his parents. She said:
In [A’s] case he knows who his father is, he has a relationship with his father, I think he would benefit from being able to continue to work on that relationship, improve that relationship, which would be a challenge if [GMDN] is sent to Papua New Guinea.
She said that his father’s repatriation to PNG would be viewed negatively by A:
He has suffered a lot of traumas in his life, particularly in the last six months. I think he would perceive that to be another loss.
She said there was no other person providing a father figure in A’s life now. GMDN had told her that he really wants to play that role for A in the future, and that A would really benefit from that; A has questions around his cultural identity and has faced teasing at school. She considered that he would benefit from having a positive male role model in his life, something he has lacked for some time.
Under cross-examination, Ms Jones agreed that A would be negatively affected if he were to witness domestic violence perpetrated by GMDN, or if he were sentenced to a further term of imprisonment. She also considered that contact between A and GMDN via platforms such as text messages and FaceTime would be beneficial to A even if GMDN were returned to PNG, but said that never being able to have that face-to-face contact would have a negative impact on A.
Ms Jones was asked about a scenario where GMDN had been repatriated and A’s mother was unable to care for A. She said she would be very concerned about such a scenario; foster placements are difficult to arrange for a child of A’s age, and this may mean he would have to be placed in residential care with other children. She said the outcomes of residential care are not great. She said:
[A] at the moment is a really sweet, sensitive kid…he doesn’t have any kind of particularly challenging behaviour. I would be very concerned about putting him in an environment where he is exposed to a lot of kids who do have some of that challenging behaviour. The outcomes from that, all the research would say, is not good.
She said that if GMDN were to remain in the Australian community and A’s mother were unable to care for A, Child Services would explore the option of having GMDN care for him.
Dr Grant Walton
Evidence was taken from Dr Grant Walton, a fellow of the Development Policy Centre at the Australian National University and an expert on PNG. His report dated 29 May 2020 was tendered. In it, he said:[53]
[53] Exhibit A2, Item 2.
Located just to the north of Australia and sharing a land border with Indonesia, Papua New Guinea has struggled to deliver services to its citizens. PNG failed to achieve any of its eight Millennium Development Goals (MDGs). Indeed, while many developing countries made great strides between 2000 and 2015 (the time span covered by the MDGs), surveys have shown that, at least for some indicators of service delivery, PNG has gone backwards.
…
The wantok system
…Wantok means ‘same language’ or ‘one talk’ in Tok Pisin (the country’s lingua franca) and refers to a reciprocal relationship of favours between kin and community members. The wantok system is the most important informal system of reciprocity in the country and is a part of the everyday life of Papua New Guineans. Wantok networks vary in size and tend to overlay kin, community, and ethno-linguistic groupings. While informal, the wantok system encourages social obligations whereby those within a wantok network look after each other – for example, by providing funds, housing, or food in times of need. This mutual assistance helps build strong intra-group trust and collective identity.
While it has changed over time, the system is a vestige of pre-state social organisation, when the territory now known as PNG was home to small-scale, egalitarian, and non-stratified societies that made decisions mainly by consensus. Today the system resonates with these older forms of sociality, with wantok loyalties often stronger than loyalty to the nation-state. In practice, this means that individuals may give more weight to their wantok obligations than to state rules and laws. It also means that ‘outsiders’ – particularly foreigners – can find it difficult to break into wantok networks and are (sic) can be excluded from the social protection and opportunities these networks avail.
…
A person in [GMDN]’s circumstances would likely face a number of challenges in Papua New Guinea. For a start, PNG is a relatively expensive country. Unlike a number of other developing countries, particularly those in South-East Asia, prices for basic items such as food, medicine, accommodation are on a par if not more expensive than Melbourne. Other than the most basic drugs, medicine can be prohibitively expensive and difficult to access, particularly outside of urban centres. Housing too is expensive, particularly because of the high costs involved in securing households, which often require guards, barbed wire, high fences and other security measures.
With [GMDN]’s skill-set he would likely find it difficult to find a job. Even if he did it would likely be lowly paid. The minimum wage in PNG is K3.50 an hour; or around AUD1.55. Oftentimes workers are paid less than this amount. Given the high cost of living, if [GMDN] was earning minimum wage it is unlikely he could access secure housing and pay for essentials. In addition, given that he is an outsider [GMDN] may find it difficult to break into some industries because the wantok system often determines appointments for insiders at the expense of outsiders such as [GMDN]. In research conducted with public servants across four of PNG’s 22 provinces in 2018, I found that the wantok system played a significant role in hiring decisions.
…
Port Moresby, PNG’s capital, is often described as one of the most unsafe in the world. As an outsider and with no family, it is my opinion that [GMDN] could be a target for criminals. Much of the crime in Port Moresby is opportunistic in nature and without a secure home, a knowledge of the environment, and social networks [GMDN] would be at significant risk of attack.
(citations omitted)
Dr Walton gave evidence by videoconference. He agreed, under cross-examination, that his report of 29 May 2020 was based partly on research (his own and that of other academics), partly on personal observations as a visitor to that country since 2004 and partly on anecdotal accounts he collected in that context. He said that even citizens of PNG can find it difficult to break into wantok networks, especially in rural areas. They can be more fluid, however, in urban areas. He did not know if there was a wantok network in Port Moresby which included members of the region in which GMDN was born.

He said that a person in the position of GMDN, returning to the country after an absence of 25 years, could break into a wantok network in a place such as Port Moresby, but it would be very difficult to do so. Such a person would be particularly vulnerable immediately after return, in that he would lack the protection from random violence which a member of a wantok system would generally enjoy. Dr Walton was taken to a World Bank Group report entitled Trends in Crime and Violence in Papua New Guinea dated May 2014, which noted:[54]
The most recent studies…all find that in the majority of ‘the most troubling cases’, victims reported that they knew the perpetrator. The perpetrators were most likely to be ‘wantoks or relatives’ or neighbors. (References omitted.)
Dr Walton agreed with this finding in the report (indicating, he said, that rates of domestic violence were extraordinarily high) but indicated that it remained true that, particularly in Port Moresby, crimes against strangers are quite opportunistic.
[54] Exhibit A1, at 75.
Dr Walton said that medicines, other than the most basic kind (such as Panadol) were often prohibitively expensive in the country. Medicines were also in short supply, though to a lesser extent in Port Moresby. Medical treatment other than the most basic treatment is also difficult to obtain; he said that the country’s elites tend to fly overseas to obtain good quality treatment.
Attention was also drawn to a US State Department report[55] indicating that Port Moresby had been assessed as a critical threat location for crime, and noted that the city suffers from high unemployment with up to half of the population reportedly living in squatter settlements. The 2020 report said the economy continued to falter due to falling global commodity prices.
[55] See Exhibit A1, at 90 – 99.
GMDN’s Mother
GMDN’s mother gave evidence to the Tribunal by telephone. She is about 65 years old.
A statement she made dated 1 June 2020 was tendered.[56] In that statement she said that she speaks to her son every week, sometimes twice a week. She confirmed that, in December 2019, her grandson, A, came to live with her for a period. She described him as a loving and caring boy who talks to his dad on the phone, sometimes one hour or more. [A] has lots to say.[57] She said she was upset when A was removed from her care. She said of A:[58]
Emotionally he is sad, and mentally he is scared. He needs a place where he can settle down.
She confirmed that GMDN can live with her after release until he is able to find his own accommodation.
[56] Exhibit A1, at 50 – 51.
[57] Ibid, at 50.
[58] Ibid.
Under cross-examination, she said GMDN used to visit her monthly and on special occasions, before he went to prison.
THE LAW
Section 501 of the Act provides:
(3A)     The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)        paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, State or a Territory…
(6)       For the purposes of this section, a person does not pass the character test if:
(a)       the person has a substantial criminal record (as defined by subsection (7));…
(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 for 12 months or more.
Section 501CA(4) provides:
(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.
In addition, the Minister has issued a direction under s 499 of the Act in relation to the considerations which decision-makers (including the Tribunal) must take into account in making a decision under s 501CA(4): Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction). Part C of the Direction is presently relevant. Under its terms, the Tribunal must take into account the following primary considerations ([13(2)]):
1.   protection of the Australian community from criminal or other serious conduct;
2.   the best interests of minor children in Australia; and
3.   expectations of the Australian community.
The Tribunal must take into account other considerations where relevant, including ([14]):
1.   international non-refoulement obligations;
2.   strength, nature and duration of ties;
3.   impact on Australian business interests;
4.   impact on victims;
5.   extent of impediments if removed.
ISSUES ON REVIEW
The issue before the Tribunal is whether the delegate’s decision of 21 May 2019 should be revoked pursuant to s 501CA(4). It is not disputed that GMDN made the representations seeking revocation of the visa cancellation within the prescribed period. It is also not disputed that he does not pass the character test as he has a substantial criminal record under s 501(7). He was sentenced, on 5 May 2006, to two years and four months’ imprisonment. Therefore, the Tribunal must determine whether another reason exists to support the exercise of the discretion to revoke the mandatory cancellation. The terms of the Direction are critical to that consideration.
The Minister contends that Primary Consideration 1 and Primary Consideration 3 weigh strongly against the Tribunal being satisfied that there is another reason why the decision should be revoked, and to the extent that any of the other considerations, including Primary Consideration 2, are found to weigh in favour of revoking the cancellation decision, they are outweighed by Primary Considerations 1 and 3.
GMDN contends that Primary Consideration 2 weighs heavily in favour of revoking the delegate’s decision to cancel his visa. He also contends that the other considerations, particularly his ties to the Australian community, the impact upon his family in Australia if he is removed, and the impediments he faces if returned to PNG, weigh heavily in his favour. He contends that, if he is returned to that country, he faces the real risk of homelessness, of becoming a victim to violent crimes, and of not being able to obtain the medication he requires for his medical condition.
The balance to be struck between the weight to be accorded to the primary considerations as against the “other” considerations is one to be undertaken with care, as Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594 at [23]:
...Direction 65 [now Direction 79] 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.
See also Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [24] – [37] per Greenwood, McKerracher and Burley JJ.
The Tribunal will discuss the import of each of the considerations in the Direction, together with the submissions made by the parties in relation to each and its conclusions and findings with respect to those submissions, in the paragraphs which follow.
PRIMARY CONSIDERATION ONE – PROTECTION OF THE AUSTRALIAN COMMUNITY
With respect to this primary consideration, the Direction requires the Tribunal to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege conferred on non-citizens in the expectation that they are…law abiding (paragraph 13.1(1)). In doing so, a decision-maker is to consider:
·the nature and seriousness of the non-citizen’s conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
Sub-paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of the non-citizen's criminal offending or other conduct, which relevantly includes the following:
(a)the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are to be viewed very seriously (sub-paragraph 13.1.1(a));
(b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed (subparagraph 13.1.1(b));
(c)the sentence imposed by the courts for a crime or crimes (subparagraph 13.1.1(d));
(d)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness (subparagraph 13.1.1(e));
(e)the cumulative effect of repeated offending (subparagraph 13.1.1(f));
(f)whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending (subparagraph 13.1.1(g)); and
(g)whether the non-citizen has re-offended since being formally warned, or otherwise being made aware, in writing, about the consequences of offending in terms of the non-citizen's migration status (subparagraph 13.1.1(h)).
The Tribunal has outlined the salient features of GMDN's extensive history of criminal offending earlier in this decision. The Minister summarised that record as follows:[59] between 29 May 1997 and 21 September 2018, GMDN has appeared before a court on 21 separate occasions and been convicted of over 50 criminal offences. His offending is varied in nature but the majority of his convictions are for family violence offences, assault, property damage, drug trafficking, theft and public nuisance offences. GMDN has also appeared before the courts for breaching good behaviour orders.
[59] See Respondent’s Statement of Facts, Issues and Contentions at [13].
In relation to these criminal offences, the Minister contended that:
(a)in accordance with subparagraph 13.1.1(1)(a) of the Direction, GMDN's criminal offences involving violence should be viewed very seriously;
(b)in accordance with subparagraph 13.1.1(1)(b), his criminal offences against women, including his offences of family violence and contravention of family violence orders should be viewed very seriously; and
(c)his criminal offence for the trafficking of cannabis, resulting in a prison sentence of two years and four months, should be viewed very seriously as drugs are a source of substantial harm to the Australian community.
GMDN has been sentenced, the Minister said, to a total of 67 months’ imprisonment (in addition to 12 months in a juvenile detention facility) for the various offences he committed over a sustained period since arriving in Australia. He has also entered multiple good behaviour bonds, many of which he breached. The Minister said this showed a sustained disregard for orders imposed by the courts. The sentences imposed by the courts reflect the seriousness of the offences committed. The Tribunal was urged to note, in particular, the common features of the offences involving A’s mother, Ms Molean and Ms Lovric, which spanned the period 2010 to 2018.
In July 2006, GMDN was formally warned about the operation of section 501 of the Act and the potential impact of further criminal offending on his visa. Since then, he has appeared in court on eight separate occasions and has been convicted of 16 criminal offences, including for violence, including assault and family violence. It is clear, said the Minister, that threats of imprisonment and visa cancellation did not deter GMDN from continuing to offend.
Counsel for GMDN conceded that his client’s criminal record was a serious one. He had committed offences of a violent kind, including against women. The seriousness of those offences was reflected in the sentences imposed by the courts and there was a cumulative effect of repeated offending. He also acknowledged that there were two occasions where GMDN had provided misleading information about his criminal offending on incoming passenger cards when arriving in Australia, and that he had been formally warned in writing about the consequences for his visa of further offending and had nonetheless committed further offences. However, he submitted that, pursuant to subparagraph 13.1.1(1)(e), GMDN’s pattern of serious offending had not shown a trend of increasing seriousness. Indeed, the trend since he was about 27 years old was towards less serious offences and less frequency of offending.
The risk to the Australian community
The Direction at 13.1.2 requires a decision-maker to have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In assessing the nature of the harm to individuals or the Australian community should GMDN engage in further criminal or other serious conduct, the Minister contended that the Tribunal should have regard to:
(a)his criminal offences involving the infliction of violence against members of the Australian community;
(b)his offences for property damage and drug-related offences have caused financial loss and other harm to members of the Australian community;
(c)the fact that there is evidence to demonstrate that GMDN is at a risk of reoffending; and
(d)the fact that there is insufficient evidence to demonstrate that GMDN has rehabilitated himself.
GMDN has acknowledged that his alcohol use, relationship issues and trying to fit in with friends have been contributing factors to his criminal offending. In his submissions he suggested that he turned to alcohol after he was sexually assaulted in 1997.
The Minister drew the Tribunal’s attention to sentencing remarks in two courts which highlighted exculpatory features of the offending or the indication that GMDN appeared to have turned his life around (Judge Muecke in the District Court of South Australia and Magistrate Lalor the ACT Magistrates Court). However, since then, GMDN had committed 13 further offences and has been sentenced to 11 months imprisonment.
The Minister also noted that GMDN has expressed regret for his conduct and had submitted that he has made a lot of mistakes and wrong decisions in the past for which he has paid ... dearly and am sincerely truly apologetic and sorry for and that I am so adamant never to break the law or abuse any of the privileges bestowed within as this experience has frightened by existence to the very core and humbled me so graciously to the point I am begging for my life back. I also promise to cherish the opportunity never to take it for granted. He also submitted that there is absolutely no chance he will reoffend. These assertions, the Minister submits, should be viewed in light of similar submission he made in 2006 in response to the Department’s visa cancellation warning. Since that date, and despite his expressed regret, GMDN has appeared in court on 8 separate occasions and has been convicted of 16 criminal offences, including for assault and family violence.
It was further submitted that GMDN has a history of breaching court orders. These included breaches of non-custodial sentences and bail conditions in October 1997, October 2002, March 2007 and May 2011. This is indicative, said the Minister, of a likelihood of further engaging in criminal or other serious conduct. The Minister noted GMDN’s consultation with a counsellor, psychologist and psychiatrist while in detention, in part to deal with his problem with alcohol. However, his abstinence is untested in the community, and there is no indication that GMDN is receiving or has received treatment in relation to his use of violence. Indeed, the Minister asserted that his statutory declarations still sought to minimise and deflect from his use of violence in the past, and there is no evidence that he has taken responsibility for his use of violence or attempted to address it through treatment. There is no evidence to demonstrate that GMDN has rehabilitated himself in relation to managing stress or anger such that his risk of reoffending has been mitigated. It was said that he still demonstrates a significant lack of insight into his offending, particularly in relation to the harassment offences.
GMDN has also failed to disclose his criminal convictions on formal documentation, including ticking No to having any criminal convictions on his incoming passenger cards dated 13 June and 19 June 2014.
The Minister contended that GMDN had been in three domestic relationships, and criminal charges had ensued out of each. The September 2010 conviction for throwing a rock through a car window in the presence of A’s mother was an act of violence. Similarly, the 2011 conviction for throwing a laptop and injuring Ms Molean was an act of violence and must have been very frightening to her. The Minister submitted that in both cases the offences arose out of frustration with the women, and in each case was committed with the intention of striking fear in them. In the case of the offences against Ms Lovric, GMDN breached FVOs at least twice; by sending her threatening text messages and driving past her house, he would have caused her to fear for her safety. Although alcohol was involved in some of these offences, in others it was not; the common factor, said the Minister, was that GMDN cannot control his emotions, and lashes out in anger when frustrated with his romantic partners. His denial under cross-examination that this was so demonstrates a lack of insight into his criminal behaviour.
The cumulative effect of all of these factors, said the Minister, is that GMDN presents an unacceptable risk to the Australian community.
In relation to risk to the Australian community, counsel for GMDN submitted that – despite his serious criminal offending – the risk to the Australian community were he to remain here is low. He set out the extensive offending beginning with convictions in the ACT Childrens Court in 1997 and running through to 2004. These included offences of robbery, destroy/damage property, theft, trespass and failure to pay a taxi fare. Counsel characterise these as antisocial offences but said that this period of offending was well behind him.
His counsel then referred to a brace of offences for which he was sentenced in 2006 and 2007, but which were in fact committed, he said, in 2005. These related to the offence in South Australia of possessing cannabis for sale. He took note of the remarks of the sentencing judge which indicated that he accepted the circumstances which had led him to commit the offence, circumstances apparently in terms similar to those described by GMDN to the Tribunal. Those remarks suggest that his Honour accepted GMDN had been preyed upon and exploited by drug dealers. This, said counsel, should allow the Tribunal to be satisfied that the unique circumstances leading to this offence are unlikely to be repeated. He added that two offences of common assault and an offence of failing to appear after a bail undertaking, for which he was sentenced in the ACT Magistrates Court in 2007, appeared to relate to a failure to appear by reason of being imprisoned in Adelaide at the time he was due to appear in Canberra.

GMDN committed no offences between 2005 and 2010, when the incident occurred where he damaged what he said was his own car in anger because A’s mother was taking A away to Dubbo. This, submitted counsel, was different in quality to the earlier offences up until 2005. Thereafter, in 2011 there were several offences falling into two categories: driving offences, including drink driving and driving while his licence was suspended, and the offences relating to him throwing the laptop against a wall causing it to shatter and a piece to injure Ms Molean.
In what counsel referred to as a relatively light period of offending, between 2011 and 2017 GMDN committed just two offences: a drink driving offence and the theft of a bottle from a bottle shop. It was put to the Tribunal that the offence of contravening a family violence order, recorded in December 2017, arose out of a misunderstanding about whether a previous FVO had been discharged. At the time he was arrested he had reconciled with Ms Lovric, and indeed they were married a week later. Counsel described the offence as minor.
The most recent offences – two domestic violence offences for which he was convicted in September 2018 – were acknowledged as serious offences, attracting as they did a prison sentence. Counsel said that both alcohol and the breakup of his marriage were features of this offending. He also noted that the FVO had since been discharged, with Ms Lovric’s consent, allowing her and GMDN to have contact. He said that GMDN’s evidence demonstrated that he now applied a more mature approach to his relationship with his ex-wife and had reflected on the nature of his offending towards her.
Counsel conceded that GMDN’s offending record is a long one, but is concentrated in his youth. Most of his offending occurred 15 years or more ago. In relation to the domestic violence-related offences in 2010, 2011 and 2018, it was submitted that they were very different in nature to each other and that it would be wrong to infer that he lashes out in anger at his partners when frustrated, as the Minister put it. Counsel also pointed to the evidence that GMDN had abstained from alcohol since the 2018 domestic violence offences.
Reference was made to his attempts during imprisonment and immigration detention to obtain help for anger management and for alcohol misuse. Counsel said that the records showed his determination to deal with those issues, notwithstanding that relevant services were generally not available to him in those settings. He is determined to address the root causes of his offending, with a view to breaking that offending and positioning himself as someone capable of offering support and care to his son.
Four reasons were offered to show that GMDN is unlikely to offend again:
(a)at 41 years of age, he has had the opportunity while in immigration detention to reflect on the mistakes of his life and to resolve to address them;
(b)he knows he must change his behaviour if he is to be a father to his son;
(c)he now has maturity and insight with respect to his offending against his former partners, particularly Ms Lovric. He is now able to display empathy towards them;
(d)he has abstained from using alcohol for more than two years, and has engaged with mental health services to deal with this and related problems.
In relation to the Minister’s claim that GMDN cannot control his emotions, and lashes out in anger at his romantic partners, and that his denial that this was so demonstrates a lack of insight into his criminal behaviour, his counsel submitted that his statement of 4 June 2020 provides ample evidence of insight into his behaviour.[60] In that statement he refers to his emotions of anger and jealousy, and how he discussed with the psychologist in the detention centre strategies of removing myself from the situation to clear my mind and my thoughts. In relation to my problem with alcohol, he discusses triggers, including the company I kept. Counsel submitted that GMDN’s denial that he lashes out at women who frustrate him was reasonable, given the very general nature of what was put to him.
[60] See Exhibit A1, at 11.
Counsel also took the Tribunal to the pre-sentence report of ACT Corrective Services, compiled before GMDN’s most recent term of imprisonment and dated 11 September 2018.[61] The authors noted that GMDN was cooperative when interviewed, and referred to an Alcohol Use Disorder Identification Test (AUDIT) administered on 13 August 2018, which indicated that his alcohol consumption over the preceding 12 month period was at low risk level as he reported to have one or two standard drinks monthly or less. They said that GMDN was assessed as posing a medium-low risk of reoffending.
[61] Exhibit R1, at 505.
The Minister responded to the suggestion that GMDN’s offending was declining in seriousness and frequency by pointing out that he had consistently disregarded the laws of Australia, and breached orders made by the courts, over his entire adult life. He failed to comply with a condition imposed on him by the ACT Childrens Court in 1997, for an offence committed not very long after he first arrived in Australia. He was convicted for failing to comply with an order, apparently to pay $300 compensation, in October 2002. On the same day he was convicted of fail behave, again apparently in breach of a court order, for which he was given a suspended prison sentence based on entering into a bond to be of good behaviour for two years. He was sentenced again in August 2004, apparently in breach of this bond, and given a further good behaviour bond.
In relation to GMDN’s conviction in 2007 for failing to appear on a bail undertaking given after assault charges in 2005, the Minister contended that the Tribunal should reject the argument that this occurred because he was imprisoned in Adelaide at the time. This is because the ACT’s Bail Act provides that a person will not be convicted of a failure to appear if they have a reasonable excuse for that failure. It follows, the Minister submitted, that GMDN’s failure to appear must have been due to reasons other than his imprisonment. In response, GMDN’s counsel submitted that the relevant provision of the Bail Act appears to place an onus on a defendant to prove that a reasonable excuse exists, and in this case it may be that GMDN pled guilty to the charge of failing to appear while citing his imprisonment in Adelaide as a mitigating factor, rather than a defence. Counsel said We simply don’t know.
There was a further breach of a recognizance (entered into in 2010) in May 2011. The Minister noted that the drink driving offence for which he was convicted at the same time was for a blood alcohol reading of 0.202, that is, four times the legal limit for driving. A similar offence five years later had a reading almost as high. His actions on both occasions would have put members of the public at significant risk of harm. Counsel for GMDN responded by pointing out that he had completed a Sober Driver course in 2017 in response to his most recent drink-driving conviction. In his statement of 4 June 2020,[62] he discussed the lessons he had learned from this course, and how he had had an immobiliser installed in his vehicle for the six months following the course.
[62] Exhibit A1, at 5.
The Minister submitted that GMDN’s pattern of contempt for the law culminated in a quite atrocious barrage of offensive text messages directed at his ex-wife in 2018. He submitted that this record of offending, coupled with repeated breaches of undertakings, could give the Tribunal no confidence that he would either be law-abiding or would comply with any bond extant at the time of his release.
The best indicator of the offences GMDN might commit in the future are the offences he has committed in the past, it was contended. While there may be a trend in recent years towards different kinds of unlawful conduct compared with the past, the pattern was still one of disregard for the law. Alcohol can be blamed for some of those offences but not all of them. GMDN’s failure to control his emotions is a significant factor in his offending. On this basis, the Tribunal should have concern that he would resort to violence should he be released and should a future relationship he might enter into break down. On his previous record, women in that position could not expect that even an FVO would protect them from him. The other significant risk to the Australian community is that he could kill someone if he again drove while intoxicated.
In response to the assertion that GMDN’s behaviour towards his previous partners demonstrates that any future partners would be at significant risk of harm in the event of relationship breakdown, counsel for GMDN observed that there was no evidence suggesting that the three relationships scrutinised in these proceedings were the only relationships in which GMDN was involved. The outcome of those three relationships may not be representative of GMDN’s behaviour when relationships end. Indeed, the violent incidents involving A’s mother and Ms Molean did not occur at the point when those relationships ended.
The Minister also submitted that the Tribunal should not accept the evidence that the car, which was involved in GMDN’s 2010 offence, was his own. The Territory’s Crimes Act (s 116) provides that the offence of which he was convicted is only constituted by damaging another person’s property, not his own. Counsel for GMDN responded by suggesting that the police may have assumed that the car parked in A’s mother’s driveway belonged to her, and proceeded to charge GMDN with damaging it, and were not disabused by GMDN who was willing to admit his guilt in breaking the window of the car. The Tribunal, it was submitted, should still accept his evidence that the car belonged to him.
The Minister also submitted that it was not to GMDN’s credit that he was unable to explain the circumstances giving rise to the additional offence of common assault for which he was sentenced in May 2011. It was suggested that this must have been a separate offence to the assault occasioning actual bodily harm offence which related to the injury to Ms Molean from the shattered laptop. Counsel contended that it was a commonly understood principle of the criminal law that the one action could not constitute two offences. Counsel for GMDN contested this characterisation of the law, saying the one action, or elements of an incident, could constitute more than one offence. If there was, alternatively, a separate assault on another occasion on Ms Molean, or on someone else, the Tribunal should accept GMDN’s evidence that he had no recollection of such an incident.
The Minister took issue with the report of ACT Corrective Services of 11 September 2018, which suggested that GMDN posed a medium-low risk of reoffending. It was contended that the AUDIT test conducted by Corrective Services was problematic, given that GMDN reported as having one or two standard drinks monthly or less, but he told the Tribunal he had been drunk when he sent the abusive text messages the previous month to Ms Lovric. Because GMDN supplied incorrect information, the Minister contended, the Corrective Services report cannot be relied upon by the Tribunal. GMDN’s counsel responded that GMDN had not had this contention put to him in cross examination, and it should therefore be disregarded.
GMDN submitted that the emails ostensibly from Ms Lovric of 16 July 2019 and 12 April 2020 correctly characterise their present relationship. They provide emotional support to each other[63] and we are friends and are there for each other.[64] He said that the failure to call Ms Lovric to verify the gist of these emails reflected her reluctance to be caught up in a Tribunal hearing and her fragile mental state, and should not suggest that the emails were inauthentic. Counsel took the Tribunal to the transcript of the first hearing where a Tribunal member asked the parties for their view on the Tribunal itself contacting Ms Lovric to ascertain her present view of GMDN. At that point, counsel for the Minister expressed concern about contacting her because she had been a victim in this case, and because her mental difficulties might affect the quality of her evidence. The Tribunal decided, apparently in light of these submissions, not to telephone her. In conveying that decision to the parties, the following exchange occurred:[65]
SENIOR MEMBER O’DONOVAN: …
In the tribunal’s assessment the primary utility in calling [Ms Lovric] was to confirm the veracity of the SMS messages and emails which have been submitted in support of the applicant’s case. The applicant’s willingness to have [Ms Lovric] called is sufficient to eliminate in the tribunal’s mind doubt about the authenticity of the SMS messages and the emails that have been submitted. So in those circumstances there is no strong adverse inference that is going to be drawn against the applicant if [Ms Lovric] is not called.
The tribunal accepts the submission that there is ample contemporaneous written evidence about the attitude of [Ms Lovric] in relation to the offending that occurred, and in light of the mental health difficulties which it is accepted by both parties the applicant suffers from and which may be aggravated by attendance and participation in the hearing that it wouldn’t be appropriate for the tribunal to call her to give evidence in those circumstances.
So on that basis there is no – it’s not the tribunal’s intention to call [Ms Lovric]. So do you understand that, [GMDN]?
[GMDN]: I do, yes, your Honour. I do, yes.
SENIOR MEMBER O’DONOVAN: And, Mr Ray, you understand that in a sense one of the consequences of not calling her is likely to be that we will accept the authenticity of the material that was submitted, which I don’t understand you have ever put in dispute.
MR RAY: I think it’s a matter of weight, Senior Member. I will be making submissions about the weight that you should give that material and the context in which it appears in this case, but I haven’t directly put to the applicant that those text messages were not sent by [Ms Lovric] for example and I don’t intend to make that submission.
(Emphasis added.)
[63] Exhibit R1, at 514 (16 July 2019 email).
[64] Exhibit A3 (12 April 2020 email).
[65] Exhibit R1, folio 667.
Consideration
It is necessary, first, to make several findings of fact in relation to matters in dispute during the hearing.
Reflecting some difficulties in interpreting GMDN’s criminal record as handed up, disagreement arose as to the total period to which he had been sentenced by various courts. There is limited utility in rehearsing the details of this disagreement. Rather, the Tribunal accepts the Minister’s contention that GMDN has been sentenced to a total of 67 months’ imprisonment, in addition to being sentenced to 12 months in a juvenile facility. It was common ground that he served 36 periods of periodic detention, was required to perform 48 hours of community service, entered into bonds to be of good behaviour totalling 10 years, six months and was fined a total of $550.
It was contended by GMDN that the Tribunal should view leniently a conviction for failing to appear on a bail undertaking in 2007 (because he was imprisoned in Adelaide at the time) and a conviction for destroy/damage property in 2010 (because the property he damaged was actually his own). The reasons advanced on his behalf, as to how these convictions arose, have some plausibility, but to accept them the Tribunal must find, in essence, that there was a miscarriage of justice and he was wrongly convicted of those offences. The Tribunal hesitates to make such findings in the absence of compelling evidence to that effect. Accordingly, it finds that he must accept the culpability inherent in these offences proven in the ACT court. Similarly, the Tribunal accepts the argument advanced by the Minister that there must have been an offence of common assault, separate to the offence of assault occasioning actual bodily harm, for which he was sentenced in May 2011. Whether this offence was committed on Ms Molean or someone else remains unclear.
However, the Tribunal does not accept the submission that it is not to GMDN’s credit that he was unable to explain the circumstances giving rise to the common assault. Throughout the hearing GMDN seemed prepared to admit to, and explain the circumstances of, those offences he had committed, and to accept a measure of responsibility for the offending. I accept that he did not take this approach with respect to the 2011 common assault because he genuinely has no recollection of what gave rise to this conviction. In a criminal record as crowded as his own, such an outcome cannot be entirely surprising.
The Minister argued that GMDN lashes out in anger when frustrated with his romantic partners, and that his denial under cross-examination that this was so demonstrates a lack of insight into his criminal behaviour. I accept the contention of GMDN’s counsel that this proposition is too broadly stated, in that there was no evidence before the Tribunal to demonstrate that the relationships under the spotlight here have been his only romantic liaisons, or, if there are, that his behaviour here is typical of his behaviour in relationships generally. However, I accept that the evidence does strongly suggest that GMDN has an issue with anger management and that this appears to arise problematically in the context of his relationships with women.
The Minister acknowledged some steps taken to address GMDN’s problem with alcohol, but that these steps towards reform are untested in the community. It was further submitted that there is no indication that he has taken responsibility for his anger issues or for his use of violence or attempted to address them through treatment. It was said that he still demonstrates a significant lack of insight into his offending, particularly in relation to the harassment offences.
The Tribunal accepts that there is limited evidence of GMDN addressing either alcohol or anger issues prior to his most recent incarceration. However, there is some evidence that he has done so since then. He gave extensive evidence in his statutory declaration and before the Tribunal of the help he has sought in addressing both those problems, and of the insights these have afforded into his past behaviour, particularly in the context of relationships. The extent to which he has been successful seems to have been constrained by the availability of appropriate services in prison or in immigration detention. The tendered clinical records suggest persistent engagement by him with these very issues during meetings with a counsellor, psychologist and psychiatrist. Those records also suggest a linkage in his mind between a failure to deal with those issues and the likelihood that he will permanently lose physical contact with his son. This evidence suggests to the Tribunal that there has been a significant accretion of insight into the problems referred to by the Minister.
The Minister urged the Tribunal not to rely upon the report of ACT Corrective Services of 11 September 2018, suggesting that GMDN posed a medium-low risk of reoffending, because the AUDIT test relating to alcohol consumption was based on incorrect information supplied by him. He told those administering the test that he consumed one or two standard drinks monthly or less, but he had told the Tribunal he had been drunk when he sent the abusive text messages the previous month to Ms Lovric. However, this submission misstates the evidence. GMDN did not say that he was drunk when he sent the messages, rather that he had been affected by alcohol. In fact, Mr Ray put it to GMDN several times that alcohol had not caused him to send the abusive text messages.[66] Moreover, the test apparently sought GMDN’s average consumption over a 12-month period; it is possible he had consumed more than 1-2 drinks in the month that he sent the text messages but that the average was still that recorded in the test result. Since the issue of his truthfulness or otherwise in his responses to the AUDIT test was not put to him in cross-examination, it is appropriate to give him the benefit of the doubt and assume that there was no intention to mislead the test examiners.
[66] For a variety of reasons, including objections taken to the questions, GMDN never fully responded to the proposition put by the Minister.

The Minister suggested that a factor in the Tribunal’s consideration should be that domestic violence perpetrated against A’s mother indirectly causes harm to A. The Tribunal accepts that submission as a broad proposition but notes that there is no evidence that GMDN has perpetrated any domestic violence personally on A’s mother. It was told of the incident in 2010 when GMDN violently broke the window of a car in A’s mother’s presence. It accepts the submission of the Minister that this must have caused A’s mother to be fearful for her safety, and it notes that the use of violent behaviour in this way is unacceptable and deserving of the punishment which was duly imposed by the ACT court. Without minimising the culpability for that act, the Tribunal observes that there is no evidence GMDN has perpetrated any violence on A’s mother herself, then or on any other occasion. The risk of such violence in the future, with its concomitant harm to A, cannot be fully discounted, but in the Tribunal’s assessment that risk is not of a high order.
It seems very clear that the Tribunal’s decision in these proceedings will have a substantial impact on the welfare of A. He will be adversely affected by a decision to repatriate his father to PNG, and that effect may be made more acute should the arrangements for A’s care in Australia break down again. In these circumstances, the Tribunal finds that Primary Consideration 2 weighs heavily in favour of revocation of the visa cancellation.
PRIMARY CONSIDERATION THREE – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3 of the Direction sets out the expectations of the Australian community, as a decision-maker is to assess them:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Minister contended that the Australian public would expect GMDN's visa to remain cancelled, having regard to the extent of his offending, including trafficking of drugs and multiple offences relating to family violence. The Australian community would view this offending as both serious and unacceptable.
GMDN began to offend within a few years of his arrival in Australia and has continued to do so throughout his adult life. He has resided in Australia since he was 15 years old, for a period of around 24 years. It is likely, the Minister conceded, that the Australian community would have a higher level of tolerance for his conduct than someone who has just arrived in Australia. However, the fact that he began offending within two years of his arrival, and has done so more or less continuously since then, would limit the extent of that tolerance. He has regularly breached the expectation that non-citizens will be law abiding. His frequent offending, and apparent disregard for the penalties imposed by the justice system, indicate that he has little respect for important institutions.
Moreover, the good behaviour bonds imposed on GMDN between 2000 and 2018 were ineffective in deterring him from further offending, and he has breached a number of community correction orders. He has also disregarded the formal warning by the Department in July 2006 that further offending could result in the cancellation of his visa. In those circumstances, the Minister contended, the Australian community would expect the original decision should not be revoked.
GMDN conceded, correctly, that this primary consideration necessarily weighs against the revocation of his visa cancellation. Paragraph 13.3 expresses an expectation deemed by the government to be held by the Australian community: FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66]. Since he has egregiously breached the laws of Australia, this consideration must weigh against revocation of the cancellation decision.
However, argued GMDN, the expectation of the community as directed under Direction 79 is not determinative; it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision: Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524 at [72]. In this context he submitted that this primary consideration should weigh less heavily against revocation because:
(a)GMDN has lived in Australia for his entire adult life;
(b)it is in the best of interests of his Australian citizen son for him to be permitted to remain in Australia;
(c)the nature of his history of offending, while lengthy, and involving serious offences, shows a reduced pattern of offending in recent years; and
(d)he has taken effective steps to address the factors that contributed to his offending.
Consideration
The Tribunal accepts the submissions that this consideration must weigh against revocation, by virtue of the deeming provision inherent in paragraph 13.3 of the Direction. The Tribunal accepts that the best interests of GMDN’s Australian son, his length of residence here and the steps he has taken towards addressing his offending are factors which would mitigate the impact of this consideration on him. Nonetheless, the length and seriousness of his offending, including violent offending in relation to women and his trafficking in drugs, mandates that the Tribunal find that Primary Consideration 3 weighs significantly against revocation of the visa cancellation.
OTHER CONSIDERATIONS
The Direction directs a decision-maker to five other considerations. Of these, three do not appear to be relevant to the Tribunal’s present task and neither party lead any evidence or made any substantive submission in relation to them: international non-refoulement obligations; impact on Australian business interests; and impact on victims.[69] In relation to the latter, the Minister simply submitted that this consideration does not weigh in GMDN’s favour. It is clear that there were victims of GMDN’s crimes, particularly in his youth but the evidence of the impact on them was either missing or ambiguous. In those circumstances, the Tribunal finds that this other consideration, like the two previously mentioned, weighs neither for nor against the revocation of GMDN’s visa cancellation.
[69] See Applicant’s Statement of Facts, Issues and Contentions at [7] – [8].
Strength, nature and duration of ties
The Direction requires (at [14.2]) a decision-maker to consider:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Pursuant to the Direction, because GMDN began to offend soon after his arrival in Australia, less weight should be given to the strength, nature and duration of his ties with the country, it was submitted.
The Tribunal is required by the Direction to give weight to any time GMDN has been contributing positively to the community. In his written submissions prior to the hearing, the Minister acknowledged that GMDN has made some contribution to the Australian community. He completed year 12 and TAFE courses in Australia and has had multiple jobs in the Australian construction industry. He also states that he has performed at Multicultural Day, has played rugby league for a local Football Club and basketball and soccer for his local community, and that he is a singer-songwriter and performer in his local region. There are letters of support from previous employers as to GMDN's good character and his contributions to the local community.
However, at the hearing the Minister submitted that there is no evidence of a positive contribution to the Australian community, and that there is no evidence of an engagement in other social activities which would benefit the community.
On the question of family or social links with Australian citizens, three relationships appear to be of particular relevance. GMDN’s relationship with his son has been dealt with above; as indicated, the Tribunal considers that this is a significant relationship and that A will suffer detriment if his father is returned to PNG. The other relationships are with his ex-wife, Ms Lovric and his mother.
Despite making a written submission accepting that GMDN’s departure would cause some sadness to Ms Lovric, the Tribunal understands that the Minister’s current submission is that the effect of his departure on Ms Lovric is not known, and the nature of this tie weighs neither for nor against revocation of GMDN’s visa cancellation.
Counsel for GMDN submitted that GMDN’s mother and Ms Lovric would be adversely affected by his removal from Australia. His closeness to his mother was demonstrated by her willingness to offer him a home in the period after any release from detention, until more satisfactory accommodation could be found.
The Minister submitted, however, that there was no real evidence that his removal would have a significant effect on his mother. There was no evidence that he performs any crucial function for her, such as being her carer, though it was conceded that she wishes very strongly for her son to stay in Australia. As a result, this consideration does not weigh strongly in favour of revocation, the Minister said.
Overall, the Minister contended that while this consideration may favour GMDN, it does not do so to a significant extent and, to the extent it does so, is significantly outweighed by Primary Considerations 1 and 3.
Consideration
The Tribunal can see no reason why the Minister’s original submission, that GMDN has made a contribution to the Australian community, should not be accepted.
The Tribunal has dealt above with the question of what weight to give to GMDN’s evidence about his relationship with Ms Lovric. Because it has decided to give little weight to that evidence, his relationship with her does not weigh for or against revocation.
More significance should be attached to his relationship with his mother. Understandably, she would be distressed by her son’s departure. It is reasonable to suppose that GMDN’s mother would have difficulties visiting him in PNG given the safety and security concerns. Although the Minister submitted that GMDN was not presently his mother’s carer, it is clear from her evidence that she anticipates she will need her son one day to provide support. In her statement she said I need him, and expressed her desire that, when she needs to live in aged care accommodation, he will be able to visit me and help me.[70]
[70] Exhibit A1, at 51.
The Tribunal accepts that GMDN is close to his mother and that both he and she would be adversely affected by his permanent removal to PNG. Prior to his incarceration he saw his mother on a reasonably regular basis, and he is distressed that his repatriation will mean he can’t be there for her as she ages. The clinical records during his incarceration also suggest he is concerned that his departure will threaten future contact between his mother and his son.
Taking into account his contribution to the Australian community and the strength, nature and duration of his ties with his mother, the Tribunal finds that this consideration weighs moderately in favour of revocation of the cancellation decision.
Extent of impediments if removed
The terms in which a decision-maker must assess this consideration are set out in paragraph 14.5:
(1) 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 substantial language or cultural barriers; and
c)Any social, medial and/or economic support available to them in that country.
GMDN referred to the evidence of Dr Walton that the wantok system is a social framework that provides members of individual wantok networks with support, including funds, housing, security and even food. Someone returning to PNG after a long absence, as in GMDN’s case, may find himself without the benefits of such a network. GMDN’s mother’s evidence, that GMDN has no family remaining there, should be interpreted as meaning that he is unlikely to integrate into a wantok network.
In addition, Dr Walton’s evidence suggested that living costs there are high and wages are low, and that GMDN would be unlikely to find employment. Even if he did, it would be lowly paid, so that he would enjoy a very low standard of living. Medicine, in particular, is often unavailable and very expensive when it is available. The combination of having a low or no income and being outside a wantok network is that GMDN would be vulnerable to homelessness and violent crime. Other research indicated that violence victimisation rates in that country are among the highest in the world, particularly with respect to homicide, and particularly in Port Moresby.[71]
[71] See Exhibit A1, commencing at 60.
The Minister accepted that GMDN would face impediments if repatriated to PNG. He said however that Dr Walton’s evidence shows that wages and living standards in PNG are low, and medicines – other than very basic ones – are difficult to obtain or unaffordable for all but the wealthiest citizens. In this respect, GMDN would be no worse off than most other citizens were he to return there. His basic living standards would be comparable to those enjoyed generally by other citizens. Similarly, in relation to the risk of crime, the crime rate is higher in PNG than in Australia, and GMDN would be at a greater risk of being the victim of a crime if he were removed to PNG than if he were to remain in Australia. However, he would share this risk in common with other residents of that country.
In any case Dr Walton’s evidence should be given less weight, said the Minister, because his opinions were formed from a combination of his own personal research and from observations reported to him by others and those made personally by him on his visits to the country. On this basis, his evidence should be treated as opinion evidence which is not based on expert foundation. Even if Dr Walton’s evidence is accepted, said the Minister, it did not provide any basis for concluding that a wantok network reflecting GMDN’s tribal or linguistic origins would be unavailable for him to join in Port Moresby.
Consideration
With respect, the Minister’s submission, that Dr Walton’s evidence should be given less weight because his opinions were contributed to by observations reported to him by others and those he made personally, does not bear serious scrutiny. Much empirical research is conducted in precisely this way. Consider the case of an archaeologist who discovers a new site of significance and excavates it with the assistance of his students. His findings on the dig carry no less weight because they are based on observations he has made personally and those reported to him by his students. Consider also a doctor who conducts a clinical trial of a new drug, using personal observations of her patients’ conditions and those patients’ reports of their reactions to the drug. Evidence collected in this way is perfectly valid. The Minister’s submission does not provide a valid basis on which to give less weight to Dr Walton’s evidence.
In addition, the Minister argued that it was inconsistent for Dr Walton to say, on the one hand, that wantok networks can protect their members from crime but that, on the other, perpetrators in certain kinds of cases were most likely to be wantoks, relatives or neighbours of their victims. Dr Walton responded, quite logically, that there is no inconsistency between observing that a high proportion of crimes may be committed in a “domestic” context but that rates of crime outside the context may still be much higher than that experienced in Australia. He said that rates of crime in the PNG, both inside and outside a domestic context, are much higher than in other parts of the world, and that GMDN stood a reasonable chance of being affected adversely by that fact. That proposition must be accepted.
Having said that, the Minister is on firmer ground in asserting that GMDN’s position must be considered in the context of what is generally available to other citizens of that country. To a large extent, the disadvantages described by Dr Walton are disadvantages experienced by the majority of PNG residents. An impediment of a kind experienced in common with other residents is not an impediment to which paragraph 14.5 refers.
The relevant question is whether there are particular impediments affecting GMDN in respect of which he would be at a disadvantage vis-à-vis other residents. There are two matters which, in the Tribunal’s assessment, fall into this category. First, he would be at greater risk of violent crime than other residents by virtue of the unlikelihood that he would obtain the benefit of membership of a wantok network. The Minister submitted that there was no evidence that a network reflecting GMDN’s tribal or linguistic origins would not be found in Port Moresby. However, Dr Walton’s evidence was that after such a long absence GMDN would find it very difficult to break into such a network, even if it did exist in Port Moresby. Secondly, the Tribunal accepts the evidence that GMDN suffers from atrial fibrillation, a serious health condition. The Tribunal considers that he would be relatively disadvantaged – compared with other residents who do not suffer from the condition – by the likely lack of access to appropriate medication. This would be exacerbated if he finds himself in low-paid employment or unemployed, as seems probable.
Overall, GMDN is likely to face considerable challenges in readjusting to life in a country he has not known since childhood and where he lacks any family connections. Although he would not likely face any substantial language or cultural barriers, the unlikelihood of his obtaining the benefits of a wantok group may mean that his health and safety will be compromised by comparison with other residents. The Tribunal finds that this consideration weighs moderately in favour of revocation.
RESOLUTION
The Tribunal finds that three considerations weigh in favour of revocation of the cancellation of GMDN’s visa: the “other” considerations of his strength, nature and duration of ties to Australia and the extent of impediments if removed to PNG and, in particular, the primary consideration of the best interests of a child, A. Standing against those considerations are two primary considerations, the protection of the Australian community and the expectations of the Australian community. Findings of significant weight appear on both sides of the scales, and the Tribunal must now evaluate these considerations relative to each other.
The single factor of greatest significance, in the Tribunal’s assessment, is the risk posed to the best interests of A if his father is returned to PNG. A is a vulnerable child who has faced setbacks and adversity in the course of his upbringing and is now on the threshold of adolescence. Like most children, he would benefit from contact with, and guidance from, his father during his adolescence, and that would be impeded by his father’s permanent departure from this country. Ms Jones gave evidence that A wants and needs that contact. However, of even greater significance is that A faces uncertainty with respect to the provision of care and support by his mother. He has already spent much of this year in foster care or the care of his grandmother because neither of his natural parents were able to provide him with that care. The evidence suggests that considerable uncertainty subsists concerning his care in the short to medium term. The arrangements which Ms Jones foreshadowed were to be put in place by the Childrens Court provided that A’s mother would share the care of A with the director of Child Services. This arrangement is based, evidently, on the fear that any one of a number of factors could at any time compromise her capacity to care for A: her mental illness, her drug use or her entering into relationships which may be harmful to A. The Tribunal perceives that this risk is not remote or fanciful, but is real, based on recent experience. There do not appear to be any other extended family members capable of caring for A on a stable basis.

The alternative to care by either his mother or father is an alternative fraught with risk to A. Ms Jones gave evidence that at the age of 11 it would be difficult to secure further foster care for him, and as such there is a real prospect of him ending up in residential or institutional care. Her evidence was that outcomes in this setting are not great: his exposure to children with challenging behaviour in that setting represents a risk to his welfare. Again, this possibility cannot be regarded as remote or fanciful, but as a very real possibility should his mother be unable, once again, to provide for his care and protection and his father was returned to PNG.
Against this risk to a child must be weighed the protection of the Australian community, and its expectations should GMDN be released from immigration detention. A lifetime of criminal offending generates the significant prospect of further offending, with the most likely victims being – on the experience of the last decade – any of his future domestic partners and the users of public roads. The patterns of behaviour established over his adult lifetime do provide signals as to his propensity to behave in that way again. In the event that he does, real – indeed, even fatal – harm could be visited on members of the Australian community. The Tribunal will not lightly contemplate a decision which carries that threat to innocent people. Indeed, the expectation of the Australian community is that such a threat should generally be obviated by the repatriation of anyone who poses it.
Having noted the gravity of this risk, and having carefully weighed the evidence before it, the Tribunal considers that GMDN is most likely not to offend again if released into the Australian community. It reaches that view based on the following evidence:
(a)an extended period of incarceration has brought home to GMDN the reality that he faces removal to a country where he knows nobody and where he will experience real hardship. There is evidence that the sobering effect of this realisation has led to serious reassessment of his lifestyle and the factors which have led him to criminal behaviour in the past;
(b)GMDN holds strong feelings of affection for his 11-year-old son. He is fearful of the very real risk to his son’s welfare posed by his present circumstances. He strongly desires to be able to be present in Australia to provide support for his son, even to the point of becoming his primary carer if that were to prove necessary;
(c)GMDN has given sustained and genuine attention to the factors contributing to his most recent criminal offending, in particular his problem with alcohol and his lack of control over his emotions. His own evidence and the clinical records suggest that this has been a preoccupation during his time in detention, that he has sought professional assistance in this regard and intends to continue to attack those problems after release. In pursuit of this objective he has a contact with services such as the Domestic Violence Crisis Service and Marymead;
(d)he demonstrated before the Tribunal an ability to reflect, with a degree of maturity and insight, on the problems encountered in his relationships with women, suggesting that he is amassing the tools to deal with those problems in the future;
(e)although serious, his offending against women in previous relationships has rarely if ever involved violence directly perpetrated on them, so much as violence perpetrated in their presence;[72]
(f)his offending in the last decade, while serious, does suggest that he has largely been successful in ending the pattern of randomly committed antisocial crimes (such as robbery, offensive behaviour and damaging government property) which characterised his offending prior to 2006. This suggests to the Tribunal some capacity to understand the nature of his offending and the capacity to modify his behaviour;
(g)the professional assessment of ACT Corrective Services that he represents a medium-low risk of reoffending; and
(h)he appears to have reasonable prospects of employment in the construction industry and of temporary accommodation with his mother if released. These things may provide a stable basis on which to address his other problems and to build a supportive relationship with his son.
[72] The Tribunal accepts that the 2011 offence of assault occasioning actual bodily harm against Ms Molean required that the court was satisfied he formed the intent to assault her, notwithstanding his evidence that he threw a laptop against a wall and part of it flew off and injured her accidentally. On the evidence before the Tribunal, this act however constitutes an exception to his pattern of behaviour towards his domestic partners.
The Tribunal has already found that there exists a significant risk that GMDN may again commit serious offences against members of the Australian community if the cancellation of his visa is revoked. The conclusion that he is unlikely to commit such offences if released does not contradict that finding. Equally, there exists a significant risk of harm to his son if GMDN is not released into the Australian community. The Tribunal must therefore weigh the risk of harm flowing from whichever decision it makes, one risk being to an unknown member or members of the community, the other to a specific Australian child. Those risks are different in quality and nature, but both are very real possibilities in certain circumstances.
The Minister conceded that Primary Consideration 2 favoured revocation but contended that the extent to which it did so is contingent on the Tribunal’s findings about GMDN’s likelihood to engage in further offending. Should he not do so, and become a suitable role model for A, said the Minister, it is very much in A’s interest that he stay. The Tribunal agrees with that logic, and since it regards it as more likely than not that GMDN will not engage in further offending, the weight of Primary Consideration 2 is commensurately greater.
In recent years the Tribunal has had cause to consider many cases of visa holders with extensive criminal records having their visas revoked, notwithstanding that they have minor children in Australia. The statistics will show that the Tribunal has, more often than not, affirmed decisions to revoke such visas notwithstanding the adverse effect on those children’s interests. The factor which sets this case apart is that generally the children in other cases have had reasonably stable and secure arrangements in place for their care and protection, generally through the child’s other parent or extended family. It is, in my view, significant that this factor is absent in the present proceedings. There is the very real prospect that affirming the delegate’s decision in this case could lead to A lacking the care and protection of either of his parents, or of extended family members, at a vulnerable age. That prospect weighs heavily on this Tribunal.
Balancing the interests of a small number of directly-affected individuals against those of the community more broadly, when they pull in different directions, is no easy task. In this exercise I am guided by the observations of Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3]:
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
On balance, I consider that the risk of harm to A is the greater evil to be avoided. On the basis that I am persuaded that GMDN does now have the means and the motivation to put aside his recidivism, the primary consideration of the best interests of a child (together with GMDN’s strength, nature and duration of ties to Australia and the extent of his impediments if returned to PNG) outweigh the protection of the Australian community, and its expectations.
The reviewable decision of the Minister’s delegate of 21 May 2019 will be set aside and, instead, the cancellation of GMDN’s visa will be revoked pursuant to s 501CA(4)(b)(ii) of the Act.

I certify that the preceding 195 (one hundred and ninety five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO

........................................................................
Associate
Dated: 9 October 2020

Date(s) of hearing: 13 – 15 July 2020

Solicitor for the Applicant:

Counsel for the Applicant:

Solicitor for Respondent:

Ms Kate Bones, Legal Aid NSW

Mr Adam Hochroth

Mr Adam Ray, Clayton Utz

[2020] AATA 3981

9 October 2020

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Immigration

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Judicial Review

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