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

Grese and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3441 (7 September 2020)
Division:GENERAL DIVISION
File Number:2020/3736
Re:Jeremiah Grese
APPLICANT

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

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:7 September 2020
Place:Perth

The Reviewable Decision dated 16 June 2020 is affirmed.
...............[Sgd]........................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – offences include indecently deals with a child over 13 and under 16, unlawful & indecent assault and stalking – Direction No 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor siblings – expectations of the Australian community – non-refoulement – strength, nature and duration of ties to Australia – Applicant is a 24-year-old man who arrived in Australia as a 16-year-old child – extent of impediments if returned to Papua New Guinea – impact of COVID-19 pandemic – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 198, 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(ii), 501G(1)
CASES
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DKXY v Minister for Home Affairs [2019] FCA 495
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs (2019) 374 ALR 601
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JFSQ and Minister for Home Affairs [2019] AATA 616
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
SCJD and Minister for Home Affairs [2018] AATA 4020
Subasinghe and Minister for Home Affairs [2019] AATA 751
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Varley and Minister for Home Affairs [2019] AATA 376
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) – paras 6.1, 6.1(3), 6.2, 6.3, 6.3(2), 6.3(3), 6.3(4), 6.3(5), 6.3(7), 7(1)(b), 8, 11.3, 13(1), 13(2), 13.1(1), 13.1(2), 13.1(2)(a), 13.1.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2, 13.1.2(1), 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.2(4), 13.2(4)(a), 13.2(4)(b), 13.2(4)(c), 13.2(4)(d), 13.2(4)(e), 13.2(4)(f), 13.2(4)(g), 13.2(4)(h), 13.3, 13.3(1), 14, 14(1), 14.1, 14.1(4), 14.2(1), 14.3(1), 14.4(1), 14.5(1), Part C
Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea (10 February 2017)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
7 September 2020
BACKGROUND

The Applicant is a 24-year-old man who is a citizen of Papua New Guinea (PNG).
He first arrived in Australia on 18 January 2013 when he was 16 years old (G11/59) with his parents and four younger siblings.
The Applicant committed his first offence of “possessed an article with intent to injure (disable)” on 19 December 2015 (S2/37). He was convicted in the Perth Magistrates Court on 11 January 2016 and received a $400 fine (G6/27).
On 12 September 2017 the Applicant committed the offence of “indecently deals with a child over 13 and under 16”. He was convicted in the Perth District Court of Western Australia on 27 July 2018 and was sentenced to a total term of nine months’ imprisonment (G6/25; G7/29).
Consequently, on 22 February 2019 the Applicant’s Class EN Subclass 186 Employer Nomination Scheme visa (Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G12/60) (Cancellation Decision). The basis of the cancellation was that the Applicant did not pass the character test because he had been found guilty of committing a sexually based offence involving a child and was currently serving a full-time sentence of imprisonment in a custodial institution.
The Applicant was advised that he could make representations to seek revocation of the Cancellation Decision, which he did (G14; G15/104-127). The Department received these representations on 27 March 2019 (G20/135).
On 13 June 2019 the Applicant was invited to make further representations regarding additional information that the Department proposed to consider (G21/136). The additional information was an immigration report from Acacia Prison dated 6 February 2019; sentencing remarks from the District Court of Western Australia dated 27 July 2018; and sentencing remarks from the Magistrates Court of Western Australia dated 30 January 2018 and 1 March 2017 (G21/136-138). The Applicant provided further personal details in a form dated 2 November 2019 (G22/139-141).
However, after considering the Applicant’s representations, on 16 June 2020 a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G4/12). This is the Reviewable Decision currently before the Administrative Appeals Tribunal (the Tribunal).
The Applicant was notified of the Reviewable Decision in a hand delivered letter dated

16 June 2020 (G3/8-9; G2/6).
On 19 June 2020, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G2/3-7). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the

84-day period started running on 16 June 2020, meaning that the Tribunal must hand down a decision with respect to this application on or before 8 September 2020.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction No. 79 - Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 79).
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 21 August 2020.
Following a Practice Direction from the President of the Tribunal, his Honour Justice Thomas, the Tribunal ceased conducting in person hearings from Monday 23 March 2020 due to the risks associated with the COVID-19 pandemic. Consequently, the Applicant appeared by video conference from Yongah Hill Immigration Detention Centre. The legal representative for the Respondent, Mr Dennis, also appeared by video conference. The Tribunal thanks the parties for their cooperation in doing so.
The Applicant gave oral evidence at the hearing and was cross-examined. He called his football coach, mother and a friend as witnesses. Each witness gave evidence by telephone.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Character reference letter from the Applicant’s parents dated 27 August 2020 and character reference from the Applicant’s friend, B, dated 7 July 2020 (Exhibit A1);
(b)Bundle of documents (Exhibit A2) including a:
(i)reference letter from the Applicant’s football coach, R, dated 27 July 2020;
(ii)Lifeskills attendance certificate dated July 2020;
(iii)Trainwest certificate dated 4 March 2020 stating that the Applicant has fulfilled the requirements for a Certificate IV in Work Health and Safety;
(iv)Trainwest record of results for the Certificate IV in Work Health and Safety dated 4 March 2020.
(c)
Section 501G documents (G-documents) numbered G1 to G24, comprising

150 pages (Exhibit R1); and
(d)Respondent’s supplementary documents numbered S1 to S14, comprising 125 pages (Exhibit R2). Exhibit R2 includes the Respondent’s Statement of Facts, Issues and Contentions as S1/1-8.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(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, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(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)); or
…
(e)a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of

12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(a)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
Direction No 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on

28 February 2019. This Direction replaced the previous Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under
s 501CA (22 December 2014) (Direction No 65).
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with

paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No 79 provides “General Guidance” as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out “Principles” which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(1)
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on

non-citizens in the expectation that they are, and have been, law-abiding,

will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 79 can be found in paragraph 8, “Taking the relevant considerations into account”, which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?

Section 501(6)(e)(i) of the Migration Act provides that a person does not pass the character test if they have been “convicted … of one or more sexually based offences involving a child”. As noted above at paragraph [4], on 27 July 2018 the Applicant was convicted in the Perth District Court of Western Australia for the offence of “indecently deals with a child over 13 and under 16” and was sentenced to a total term of nine months’ imprisonment.
Consequently, the Applicant does not pass the character test.
The Tribunal must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community
Paragraph 13.1(1) of Direction No 79 provides that:
(1)When considering protection of the Australian community, decision-makers should 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 that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction No 79 then provides:
(2)Decision-makers should also give consideration to:
a)
The nature and seriousness of the non-citizen’s conduct to date;

and
b)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 (paragraph 13.1(2)(a) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)
Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the

non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant has committed approximately 29 offences between 19 December 2015 through to 16 October 2017 (G6/25-27; S3/44; S10/92). The offences and facts of these offences are as follows:
(a)As noted above, the Applicant’s first offence was “possessed an article with intent to injure (disable)” on 19 December 2015 (S2/37). The transcript of proceedings stated that police found the Applicant at 2:00am in a Perth nightclub precinct “creating a disturbance outside a kebab shop”. After searching the Applicant with his consent, police found a “shop saw” on the Applicant’s left-hand side with the “blade down his trouser leg and handle exposed by the waist”. He was convicted in the Magistrates Court of Western Australia on 11 January 2016 and received a $400 fine (S3/44).
(b)On 23 May 2016, the Applicant was convicted of “obstructing public officers”, “breach of bail undertaking” and “fail to obey order given by an officer” offences which were committed on 3 April 2016 for which he received a fine. The transcript of proceedings of the Magistrates Court of Western Australia (S4/47) state that the Applicant was outside a pub and “was issued a move on order due to some disorderly behaviour”. However, within 15 minutes he was located outside a nightclub in breach of the order. The Applicant was then arrested, but “refused to enter the police van, locked out his arms on the pod door and listed against police” who managed to get him into the van and shut the door. The Applicant “leapt out of the van with a raised fist”, “swung” at officers before wrestling with police on the ground and “thrashing his arms … whilst being handcuffed”. The transcript notes that the Applicant agreed that “he was very intoxicated”.
(c)On 13 June 2016, the Applicant was convicted of “breach of violence restraining order” and “burglary, in place of another person without consent”, and again fines were imposed by the Magistrates Court of Western Australia. The transcript of proceedings records that at the time of this offence the Applicant was 19 years of age. The complainant was the Applicant’s former girlfriend, whose parents took out the restraining order so she could focus on her studies. The Applicant “removed a flyscreen from the victim’s bedroom window and opened the window. He…leant through the victim’s bedroom window and literally tapped her on the head.” The transcript further records that the complainant ran out of the room screaming to wake her parents (S5/51-52).
(d)On 9 August 2016, the Applicant was convicted of two counts of “without lawful excuse trespassed on a place”, for which he received fines. The transcript of proceedings in the Magistrates Court of Western Australia (S6/57) records that the Applicant went to a vacant property next door to his house which was part of a deceased estate. He had heard through friends that he could smoke marijuana there without being disturbed. He entered “[t]hrough an unlocked rear door, he used the facilities on offer in the house including television, couch, chairs, and relaxed for a time”, and did the same the following day. When police responded to another burglary there, they found the Applicant’s fingerprints.
(e)On 1 March 2017, the Applicant was convicted of nine offences. These were two counts of “common assault”, “common assault in circumstances of aggravation”, “unlawfully assaulted with circumstances of aggravation”, two counts of “burglary and commit offence in dwelling”, “stealing” and two counts of “breach of protective bail conditions”. The extract of proceedings of the Magistrates Court of Western Australia records that the Applicant pled guilty to all charges (G9/50) which related to two domestic violence incidents. The Applicant’s Immigration Report records that protective bail conditions were imposed on 4 November 2016 to protect the Applicant’s ex-de facto partner (victim 1) and another male (victim 2). These appear, from the Applicant’s Immigration Report (G10/56), to have been imposed following a domestic violence incident on the same date during which the Applicant’s ex-partner was struck with an object once to the back of her head, and then with his hand a number of times to the back of her head. When the other male attempted to intervene, he was punched to the right cheekbone below the eye, then to his forehead, followed by an unknown number of additional punches.
The following day, 5 November 2016, the Applicant went to his ex-partner’s property, and believing that she and the male were engaging in sexual activity, forced open the front door. The Applicant “struck victim2 twice to the face with his right hand, causing victim2 to fall backwards into a corridor wall. Victim2 sustained starches [sic] below his right eye and lips.” The Immigration Report states that the Applicant then (G10/55):
[A]pproached victim1 in a bedroom, and grabbed hold of her in a hug. Mr Grese dragged victim1 outside the unit and approximately 200 meters away from the address. Mr Grese let go of victim1, and both returned to the address. Mr Grese took possession of victim1’s white Samsung mobile phone, laying on a table inside the unit. Mr Grese became aware police were nearby, and fled on foot jumping several fences. Police searched the area and located Mr Grese nearby, where he was arrested and conveyed to the Cannington police station. Mr Grese was found to be in possession of the stolen mobile phone.
For these offences, which the Tribunal will refer to collectively as the Domestic Violence Offences, the Applicant received a 12-month intensive supervision order and received four nine-month concurrent suspended prison sentences, and a fine (G9/51-52).
(f)On 15 December 2017, the Fremantle Magistrates Court imposed a $200 fine and disqualified the Applicant from driving for three months for the offence of “no authority to drive (never held)”.
(g)On 30 January 2018 the Applicant was convicted of the offences of “unlawful & indecent assault” and “stalking”. The facts of the “unlawful & indecent assault” offence were described by the sentencing Magistrate as follows (G8/45):
[A] person completely unknown to you who you essentially followed onto a bus, sat near her at the rear of the bus, and, in the course of that … you then exposed yourself. You masturbated and then, essentially, took her hand and placed it on your penis. That is a very serious matter, and a very serious assault upon someone who you did not know… The victim… was a 17 year old girl who was completely unknown to you.
The “stalking” offence was described by the sentencing Magistrate as follows (G8/45):
You observed a female jogging along the road. You then followed her in a car and essentially cornered her and scared her and caused her considerable fear in the way that you followed her and spoke to her in that regard.
When these two offences were committed, the Applicant was subject to a suspended term of imprisonment, and intensive supervision order and protective bail conditions because of the Domestic Violence Offences which he was convicted of breaching. Consequently, the Magistrate ordered that the suspended prison sentences be activated (G8/47), and the Applicant therefore received a total sentence of 19 months’ imprisonment with eligibility for parole.
(h)On 17 April 2018 the Applicant was convicted of the offence of “obscene acts in public”. This offence was committed at 11:30am on 22 September 2018. The facts were described in the sentencing transcript as follows:
11.30 am on 22 September 2018 the accused was driving a [vehicle description omitted] west on [K Street], [suburb name omitted]. Victim was walking her dogs in the east direction. As the accused drove towards the victim he slowed down significantly that it caused the victim to become concerned for her safety. He continued on, turned left onto [G Street], drove back onto [K Street], pulled into the driveway at number [number omitted], blocking the pathway of the victim, and as she approached he said, “Can you tell me where to go?”
When the victim approached the accused’s vehicle she saw that he had his penis out of his pants and was masturbating. The victim started to walk away but returned to the front of the vehicle and advised the accused she was getting his numberplate. The victim returned home and reported the matter to Crime Stoppers. 20 October 2017 victim attended [suburb omitted] Police Station. She conducted a digiboard identification and she selected the accused.
The Applicant was fined $1,000 for this offence (G6/25).
(i)The Applicant’s most recent offence of “indecently deals with a child over 13 under 16” was committed on 12 September 2017. He was sentenced in the District Court of Western Australia to nine months’ imprisonment, to be served cumulatively with his previous sentence. The facts were described by the Sentencing Judge, his Honour Judge Prior as follows (G7/30):
The facts are on Tuesday, 12 September 2017 the 21-year-old offender [the Applicant] was at the corner of [K Street] and [P Street] [suburb name omitted] driving a [vehicle description omitted].
The offender [the Applicant] drove up to the 13-year-old victim who was walking north along [P Street] and asked her where the train station was. The victim pointed in the direction of [suburb name omitted] and continued walking down [P Street].
As the victim reached the corner of [P Street] and [B Street]…, the offender stopped again in front of the victim and said, “Come over. Tell me where to go,” followed by, “Could you show me?”
The victim moved to the offender’s vehicle where she saw that he had his pants down and was playing with his penis, squeezing and moving it with his fingers. The victim said she could not help him anymore and walked away.
The victim continued to walk up [M Street], … where she saw the offender drive out of [S Street] and turn left onto [M Street] towards her. After passing the victim, the offender did a U-turn, driving past the victim again and turning right back onto [S Street].
The victim feared for her safety and took an alternative route home. The victim continued home where she told her mother what had happened.
The sentencing Judge noted that the Applicant was intoxicated at the time of this offence (G7/39).
Paragraph 13.1.1(1)(a) of Direction No 79 provides that “without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously”. The Domestic Violence Offences included “common assault”, “common assault in circumstances of aggravation”, “unlawfully assaulted with circumstances of aggravation” which involved violence, with the female and male victims being struck and punched by the Applicant. The “unlawful & indecent assault” was a sexual offence committed against a
17-year-old female victim on a bus and involved the Applicant having physical contact with the victim. The “obscene acts in public” offence was also of a sexual nature, although there was no physical contact with the woman the Applicant masturbated in front of. The “indecently deals with a child over 13 under 16” involved the Applicant following, and then masturbating in front of a 13-year-old female victim. Applying 13.1.1(1)(a) of Direction No 79, these offences are viewed “very seriously” by the Tribunal.
Paragraph 13.1.1(1)(b) of Direction No 79 provides that violent offences against women are viewed very seriously, regardless of the sentence imposed. This applies to the Domestic Violence Offences which were committed against a female victim who was the Applicant’s former partner.
Paragraph 13.1.1(1)(c) of Direction No 79 provides that crimes committed against vulnerable members of the community are “serious”. Although children are not referred to as examples of vulnerable members of the community in this sub-paragraph, children are clearly “vulnerable members of the community”. There is a substantial power imbalance between adults and children, with adults occupying a position of trust, authority, knowledge and often physical strength over children. Indeed, many laws, including the criminal law, operate to protect children who are generally accepted as requiring protection. Consequently, the Tribunal finds that children are vulnerable members of the community, and that the “indecently deals with a child over 13 under 16” offence, committed against a 13-year-old female, falls within this category. Indeed, when sentencing the Applicant for this offence, his Honour Judge Prior observed that the 13-year-old victim “was a vulnerable person alone in a public place” (G7/41). The Tribunal further notes that the “unlawful & indecent assault” was committed against a 17-year-old female victim. Given that 18 years is the age of adulthood, the Tribunal also finds that this young female victim falls within this vulnerable category of victims. The Tribunal further observes that women who are victims of domestic violence in their homes are also vulnerable, given the physical and mental power imbalances present in the context of that type of offending (the power imbalance present in domestic violence offending was referred to by Deputy President Dr Kendall (now his Honour Judge Kendall) in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (XFKR) at [45]. Consequently, the Tribunal regards the Domestic Violence Offences to have been committed against a vulnerable victim, being the Applicant’s former partner.
Paragraph 13.1.1(1)(d) of Direction No 79 also requires the Tribunal to have regard to the sentences imposed by the Courts for a crime or crimes. His Honour Judge Prior referred to the “indecently deals with a child over 13 under 16” as a “serious offence” (G7/33) and “too serious for the sentence of imprisonment to be suspended” (G7/41). As noted above, his Honour Judge Prior sentenced the Applicant to nine months’ imprisonment to be served cumulatively with the Applicant’s previous sentence. The Sentencing Magistrate for the “unlawful & indecent assault” and “stalking” offences stated that (G8/46), “the unlawful indecent assault is certainly serious, and I think it – it’s so serious, as is the stalking, that the only appropriate way to deal with these matters is by way of a term of imprisonment.” As noted above, the Applicant was sentenced to a total term of imprisonment of 19 months with eligibility for parole, with the Magistrate ordering that the Applicant’s prior sentences of imprisonment be activated. The very serious nature of the offences was also noted in sentencing. The Tribunal finds that these sentences of imprisonment reflect the seriousness of the Applicant’s offending.
The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79). As noted above, the Applicant committed 29 offences over a relatively short period, being 19 December 2015 through to 16 October 2017. This is a period of approximately
22 months, and therefore it can be concluded that the Applicant frequently offended throughout this period. Indeed, when sentencing the Applicant on 1 March 2017 for the Domestic Violence Offences, the sentencing Magistrate referred to “the persistence of your offending behaviour over a very short period of time” (G9/50). It can also be concluded that there was a trend of increasing seriousness in the Applicant’s offending. Again, when sentencing the Applicant for the Domestic Violence Offences, the sentencing Magistrate also noted that the Applicant was (G9/50):
[N]o stranger to the courts and to criminal offending although at the lower end of the spectrum involving trespass charges, breach of a violence restraining order, burglary in a place and some other minor matters all of which at the time in 2016 were dealt with by way of monetary penalties. Mr Grese, you’ve moved into the big league today.
Subsequently, the Applicant committed serious offences against women, including the “stalking” offence and the “unlawful & indecent assault” offence against the 17-year-old victim on a bus as well as the “obscene acts in public” offence. His offending further escalated with the offence of “indecently deals with a child over 13 under 16” against a
13-year-old victim, with his Honour Judge Prior observing that “this is a much more serious offence” than the stalking offence (G7/33). When sentencing the Applicant for these offences, his Honour Judge Prior explained the escalation in the Applicant’s offending as follows (G7/38):
Since late 2015, you’ve committed a wide variety of summary offences, including possession of weapons, obstruct public officer, breaches of bail, burglary, trespass, aggravated assault, common assault, breach of violence restraining order, obscene acts in public and the recent offences that I’ve just described. You, therefore, have continually committed criminal offences over the last two years and the seriousness of the offences has escalated, in particular, in late 2017. This is your first indictable offence that brings you into the District Court.

With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Applicant’s court history comprising approximately 29 offences in a
22 month period, including his breaches of bail conditions, breaches of suspended sentences of imprisonment, breaches of violence restraining orders and his custodial sentences of imprisonment would likely have had a cumulative effect of placing a burden on the resources of police, corrective services, and the court system.
The Applicant has not provided false or misleading information to the Department by not disclosing prior criminal offending on any incoming passenger cards and so paragraph 13.1.1(1)(g) of Direction No 79 is not applicable.
The Applicant has not previously received any formal written warning that further offending may affect his migration status, and so paragraph 13.1.1(1)(h) of Direction No 79 is not applicable.
Paragraph 13.1.1(1)(i) of Direction No 79 requires the Tribunal to consider whether the Applicant has committed any crime while in prison or immigration detention, for example during an escape from immigration detention. This is not applicable to the Applicant.
Based on the analysis of each of the sub-paragraphs of paragraph 13.1.1(1) of Direction No 79 above, the Tribunal finds that the nature and seriousness of the Applicant’s offending, particularly his most recent conviction for “indecently deals with a child over 13 and under 16” , as well as the “unlawful & indecent assault”, stalking and Domestic Violence Offences, can be categorised as very serious. Consequently, the Tribunal finds that paragraph 13.1.1 of Direction No 79 weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1(2)(b) of Direction No 79)
A decision-maker must also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account 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).
The nature of the harm
Broadly speaking, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. This firstly requires a consideration of the nature of the harm should the Applicant engage in further criminal or serious conduct (paragraph 13.1.2(1)(a) of Direction No 79).
The harm that could result to victims if the Applicant is to reoffend in a violent manner, including if he were to commit any domestic violence offences, is potentially very serious and could include psychological harm, physical injury, temporary or permanent impairment or even loss of life. The particular harms that can result from domestic violence were explained by Deputy President Dr Kendall (now his Honour Judge Kendall) in XFKR at [45]:
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised – and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
The harms that could result to victims of stalking and sexual offending, including “unlawful & indecent assault” and sexual offences against children such as the offence of “indecently deals with a child over 13 under 16” are varied and include psychological harms to victims.
Applying paragraph 13.1.2(1)(a) of Direction No 79, the Tribunal finds that the nature of harm that could result if the Applicant is to commit further sexual offences against women or children is broad ranging. Some of these harms were discussed by the Tribunal in Varley and Minister for Home Affairs [2019] AATA 376 at [76] in the context of child sexual offending. They include mental and emotional issues, psychological trauma such as depression, anxiety and post-traumatic stress disorder, difficulties with trust and intimacy in relationships, substance misuse, and developmental difficulties in children. If the Applicant were to commit such offences in the future the consequences for victims are potentially very serious.
Likelihood of engaging in further criminal or other conduct
Next, the Tribunal is required to consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction

No 79).
In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 389 [111] (which was quoted with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444-445 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117,
124–5 [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.
Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] Moshinsky J stated that: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational”. Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] Kenny J also referred to the basis for the assessment of the likelihood of reoffending as requiring a “rational and probative basis”.
As noted above, the Applicant was convicted of 29 offences in a relatively short period of time, being a period of approximately 22 months. Of further concern is that the Applicant has a total of 11 breaches of court-imposed orders. For example, when he committed the “stalking” and “unlawful & indecent assault” offences, he was subject to a suspended term of imprisonment for the Domestic Violence Offences. Also, when the Applicant committed the “indecently deals with a child over 13 under 16” offence, he was also subject to an intensive supervision order and a suspended term of imprisonment (G7/39). These facts do tend to suggest a disregard for Australian laws and lawful authority, and a likelihood of future reoffending.
When sentencing the Applicant on 27 July 2018 for the offence of “indecently deals with a child over 13 under 16” his Honour Judge Prior stated that the Applicant had unmet treatment needs in the area of sexual offending (G7/38-39):
You have outstanding treatment needs, including a need to participate in the Sex Offender Treatment Program. Your risk of sexual offending in the Static-99R score is well above the average risk category. It would seem the breakdown in a relationship you had with someone and increase in your alcohol use has impacted on your offending behaviour in the year 2017.
The Applicant stated that he has not completed any programs which address his sexual offending because they were not available to him during his prison term or his time in immigration detention (transcript/31).
However, to the Applicant’s credit, whilst he was in prison, he attended Alcoholics Anonymous and Narcotics Anonymous meetings. A letter from the Department of Justice dated 23 July 2018 (G16/126) confirms that he attended nine Alcoholics Anonymous and five Narcotics Anonymous program meetings. The Applicant stated that he completed these programs to address his addictions, stating that he previously used to smoke marijuana, and because alcohol was “the main factor that contributed to [his] offending in the past” (transcript/34). The Applicant further stated that, “I never want to ever, ever touch alcohol and drugs again because I seen [sic] the benefit of staying sober, sober minded and stuff like that” (transcript/34).
The Applicant also stated that he had not had any drugs or alcohol in prison (transcript/34), and there is no evidence of any drug or alcohol use in any prison records (see, for example, G10/54-58). This period of abstinence is likely to assist the Applicant to abstain from alcohol and other drugs if he is released into the community and is likely to assist him to reintegrate into the community and not reoffend.
The Applicant also attended an eight-session program called “Continuing with Jesus – On the Outside” run by the prison chaplain from October to December 2018. The Completion Certificate states that, “[t]his 8 session program explores practical steps to continuing a relationship with Jesus after prison”. The topics covered are stated as, “Relating to Authority, Past Relationships, Controlling Anger, Forgiveness & Setting Goals” (G16/125). A further certificate of completion states that the Applicant has also completed “The Prisoner’s Journey: a program of prison fellowship international” (G16/127).
Whilst in immigration detention, the Applicant attended the “Lifeskills” program in July 2020, with topics covered including “Reflecting on my substance abuse” and “Change, Relapse Prevention & Letting Go” (Exhibit A2). The Applicant confirmed that this course was held over approximately two days (transcript/32). The Applicant also attended a weekly Men’s Group in July 2020 (transcript/36-37). He described the topics as including parenting, dealing with conflict in relationships, anger management and changing behaviours (transcript/36-37).
The Tribunal is concerned that the Applicant has not undertaken any intensive treatment programs or counselling for his sexual offending. Whilst it is commendable that he has attended Alcoholics Anonymous and Narcotics Anonymous, again the Applicant has not been able to complete any intensive programs to address his alcohol abuse. Although the Applicant has attended some voluntary courses, they are not intensive, were of short duration, and did not measure treatment needs before and after, or any gains made as a result of completion.
The Applicant also completed a Certificate IV in Work Health and Safety on 4 March 2020 (Exhibit A2). Further a certificate of recognition from Serco Internal states that the Applicant had engaged in 120 hours of “Painting skills” as at 14 December 2018 (G16/122). He stated that he was currently studying towards a Certificate IV in leadership and management (transcript/33). Together with his skills as a mechanic, these qualifications may assist the Applicant to find employment, which may be a protective factor that can lessen the likelihood of reoffending.
Expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616, [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751, [52]), which may in turn reduce the likelihood of reoffending. To his credit, the Applicant was able to show insight into his offending and on several occasions during the hearing expressed remorse for the victims and the impact that his offending may have on them (transcript/30-31, 49). He did not attempt to minimise his offending and accepted the facts from the various sentencing remarks.
The Applicant stated that he had been denied parole (transcript/7). However, no documents regarding parole were before the Tribunal because the Respondent did not request a summons be issued to the Department of Corrective Services. Therefore, the Tribunal does not draw any inferences from the Applicant’s denial of parole, which could have been for a range of reasons.
The Applicant also stated that he would be subject to a period of supervision and reporting requirements as a registered sex offender if he is released into the community and that he would be required to do programs and counselling in the community for alcohol and sex offending (transcript/38). Again, although there are no documents before the Tribunal to confirm this, the Tribunal accepts that a period of supervision and reporting with programs addressing the Applicant’s outstanding treatment needs may assist him to reintegrate into the community and with his rehabilitation, which may reduce his likelihood of reoffending.
The Applicant has the support of his family, particularly his parents, who are willing to offer him accommodation in the family home and help support him financially and emotionally (Exhibit A1). The Tribunal is, however, concerned that the Applicant has had the constant support of his mother, noting her presence at his court hearings, and yet he continued to offend in the past. The Applicant is also keen to be a part of the lives of his younger siblings and to be a good role model for them (transcript/39). This may also be a further protective factor. Additionally, the prospect of visa cancellation and separation from his family again if he is to reoffend and be removed from Australia is also likely to motivate the Applicant not to reoffend.
The Applicant also has the support of his football coach (Exhibit A2) and, if he avails himself of the opportunity to reconnect with his coach, the bible study group facilitated by his coach and his fellow team members, this social support and mentoring may also be a protective factor for him, which may reduce the likelihood of his reoffending. The Applicant also has the support of his friend B, who stated that she is happy to assist him with any support he needs (Exhibit A1).
The Tribunal has considered various protective factors that will assist the Applicant not to reoffend. In summary, these included:
·his remorse and insight into his offending and his desire to abstain from alcohol;
·the completion of voluntary programs in prison and immigration detention including Alcoholics Anonymous and Narcotics Anonymous;
·his completion of vocational programs, which may assist him to find employment;
·the monitoring and supervision he will receive as a registered sex offender, with possible programs to address outstanding treatment needs; and
·the support from his pro-social family, including the fact that they will provide him with accommodation, as well as support from his football coach and friend.
The Tribunal has also considered the factors that may be suggestive of a risk of

reoffending. In summary, these included:
·The large number of offences the Applicant committed in a short period of time (approximately 22 months), which have escalated in seriousness;
·his numerous breaches of court-imposed orders, including a breach of violence restraining order and breaches of protective bail conditions, as well as the Applicant committing serious sexual offences whilst subject to intensive supervision orders and suspended imprisonment orders;
·the fact that the Applicant has not completed any intensive programs for sex offending (as recommended by his Honour Judge Prior in sentencing) or alcohol abuse which is linked to his offending behaviour;
·it is unclear whether the Applicant made any treatment gains in his voluntary programs, and if so, what those gains were; and
·the fact that he has had family support in the past, particularly from his mother, and yet continued to offend.
Having considered the evidence outlined above, the Tribunal finds that, on the balance of probabilities, there is a moderate likelihood of the Applicant reoffending should he be given a further chance to be released back into the Australian community.
The Tribunal finds that the harms that could potentially arise from similar sex offending to the “unlawful & indecent assault” and the “indecently deals with a child over 13 under 16” offences may be so serious that any risk of this type of offending being repeated is unacceptable. Accordingly, the Tribunal finds that the principle set out in paragraph 6.3(4) of Direction No 79 is relevant. This paragraph provides:
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
On balance, the Tribunal finds that the “risk to the Australian community” part of this primary consideration (that is, paragraph 13.1.2 of Direction No 79) most appropriately weighs strongly against the revocation of the Cancellation Decision.
Summary on paragraph 13.1 of Direction No 79
In summary, the Tribunal has found that the “nature and seriousness of the conduct” part of this primary consideration (that is, paragraph 13.1.1 of Direction No 79) weighs strongly against the revocation of the Cancellation Decision, and the “risk to the Australian community” (that is, paragraph 13.1.2 of Direction No 79) also weighs strongly against the revocation of the Cancellation Decision.
Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction No 79)
Paragraph 13.2 of Direction No 79 provides, in part:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of Direction No 79 continues to outline the factors that a

decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

The Applicant has three minor siblings: a 16-year-old brother, a 12-year-old sister and a seven-year-old brother (G5/19). There is minimal information before the Tribunal about the Applicant’s younger siblings, and so they will be considered together, with the Tribunal addressing any differences between them.
Paragraph 13.2(4)(a) of Direction No 79 requires the Tribunal to consider the nature and duration of the relationship between the child and the Applicant. The Applicant is the older brother of the children who are all still at school (transcript/40). He has been in prison since 30 January 2018, and upon release on 29 May 2020, the Applicant went into immigration detention. The Applicant stated that he spoke to his siblings daily and that he had a “really, really good relationship” with them, that he is “very, very close to them” and that they look up to him as a “role model” (transcript/39). The Applicant’s mother gave evidence that the children miss him and ask when he will be coming home (transcript/61). Although the Applicant is not the father of the children, the Tribunal accepts that he has a close relationship with them as their older brother.
There is a short amount of time until the Applicant’s 16-year-old brother will turn 18, and as he is nearly an adult, he is likely to miss his older brother, but will be less affected than the youngest two siblings if his brother is returned to PNG. However, there are some six years and 11 years before his sister and youngest brother will turn 18. The younger two children are likely to be more affected by his absence because they will not grow up with the presence of their older brother during their teenage years if he is removed to PNG. If the Applicant stays in Australia, he will live with his parents and siblings (Exhibit A1). The letter from the Applicant’s mother and father states that he used to help with cooking and housework and “taking his smaller brothers and sisters to school and picking [them up] from school” (Exhibit A1). The children look up to the Applicant, and if he can lead a pro-social lifestyle and does not reoffend, he is likely to play a positive role in the children’s lives until they turn 18 (Direction No 79, paragraph 13.2(4)(b)).
There is no evidence that any prior conduct of the Applicant has had a negative impact on his younger siblings. Although, should the Applicant return to live with them and become involved in their lives again, it may have a negative impact on them if the Applicant commits any future offences and is incarcerated or deported (Direction No 79, paragraph 13.2(4)(c)).
If the Applicant were to be returned to PNG it may be possible for the Applicant to maintain contact with the children in other ways, for example, through telephone or the internet. However, any separation would likely have a negative effect on the children, particularly the youngest two siblings, because they would not be living with the Applicant and he would not have any involvement in their daily lives or upbringing (Direction No 79, paragraph 13.2(4)(d)). The Tribunal also notes the evidence of the Applicant’s mother that communications in PNG can be difficult (transcript/62-63). If that is correct, it may make communicating with the children more difficult and less frequent.
The children are at school and live with their mother and father (the Applicant’s parents) who fulfil the parental role in relation to the children (Direction No 79, paragraph 13.2(4)(e)).
As noted above, the Applicant’s mother’s evidence was that the children miss their older brother and want him to come home (transcript/61). Apart from this, there are no other known views of the children before the Tribunal (Direction No 79, paragraph 13.2(4)(f)).
There is no evidence that the Applicant abused or neglected his younger siblings in any way in the past (Direction No 79, paragraph 13.2(4)(g)), nor is there any evidence that the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct (Direction No 79, paragraph 13.2(4)(h)).
In summary, if the Applicant is released into the community he will be living in the same household as his younger siblings and will have daily involvement in their lives, for example by taking them to and from school. However, the children do have parents who care for them, and as the relationship is non-parental, it is therefore given less weight. More weight is given to the younger two siblings as there is more time until they turn 18. Consequently, the Tribunal finds that the best interests of the Applicant’s seven-year-old and 12-year-old siblings weigh moderately, and the interests of his 16-year-old brother weigh slightly in favour of revocation of the Cancellation Decision.
Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction No 79)
Paragraph 13.3(1) of Direction No 79 provides:
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.
There was, until recently, a lack of clarity concerning the interpretation of this primary consideration. For a time, the accepted position was that of Mortimer J in YNQY vMinister for Immigration and Border Protection [2017] FCA 1466 (YNQY), [76]-[77]. However, two subsequent decisions of the Federal Court adopted slightly different approaches to that of YNQY, being DKXY v Minister for Home Affairs [2019] FCA 495 and FYBR v Minister for Home Affairs [2019] FCA 500.
This ambiguity was clarified by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 374 ALR 601 (FYBR (FC)). The plurality generally agreed with the approach adopted by Mortimer J in YNQY, where her Honour stated:
[76]In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, [sic] wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77]I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]–[66]).
(Emphasis added.)
The plurality of the Full Court in FYBR (FC) followed Mortimer J’s characterisation of the community expectations primary consideration. Although FYBR (FC) concerned a refusal to grant a visa under the previous Direction No 65, it is equally applicable to the current Direction No 79, as there were no changes to the wording of paragraph 11.3 (which concerns visa refusal) when the Direction was updated. Additionally, paragraph 13.3 (which concerns whether it is appropriate not to revoke a mandatory visa cancellation) is substantially similar in its expression of community expectations.
FYBR (FC) confirmed that the community expectations primary consideration operates as a kind of deeming provision (see Charlesworth J at 617 [61] and Stewart J at 622 [89]). That is, paragraphs 11.3 and 13.3 contain a statement of the government’s views as to the expectations of the community. The decision-maker (in this case the Tribunal) must have due regard to those views. As noted by Charlesworth J at 618 [67], “[i]t is not for the decision-maker to make his or her own assessment of the community expectations…”
and further, as noted by Stewart J at 622 [91], “‘community expectations’ as expressed normatively are what the Government says they are, even though in actual fact if they were ascertainable community expectations might be quite different”.
Even though the community expectations primary consideration operates as a kind of deeming provision, it does not determine the outcome of the overall decision. As stated by Stewart J, at 622 [91] “‘community expectations’ as expressed by the Government do not speak to the outcome in any particular case”. This is because community expectations comprise one primary consideration which must be weighed against the remaining primary and other considerations in the exercise of discretion under the Direction. Thus, as Charlesworth J stated at 620 [79], “[i]n an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be”. Although in most cases community expectations will favour
non-revocation of a cancellation decision, the provision does not dictate an inflexible conclusion (Charlesworth J at 620 [75] and Stewart J at 623 [97]) and it is up to the
decision-maker to determine the weight to be applied to this consideration (Charlesworth J at 620 [76]-[77] and Stewart J at 624 [102]).
The community expectations primary consideration was summarised in straight forward terms by Stewart J as follows (at 624 [101]):
community expectations are simply, and informally, expressed as follows: ‘If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.’
For a comprehensive summary of the Full Court’s decision in FYBR (FC), see Member Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424, [162]-[171].
Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC),
the Tribunal must give effect to the norm stipulated in paragraph 13.3 of Direction No 79 (that the Australian community expects non-citizens to obey Australian laws whilst in Australia), which will, in most cases, weigh in favour of refusing to revoke a cancellation decision.
The Tribunal is guided by the principle in paragraph 6.3(2) of Direction No 79 which states that “[t]he Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”. Paragraph 6.3(3) of Direction No 79, in summary, provides that non-citizens who have committed serious crimes, including crimes of a violent or sexual nature, should generally expect to be denied the privilege of staying in Australia. The Applicant has been convicted of a sexual offence involving a child, who is a vulnerable member of the community, which the Tribunal has found above to be very serious. The Tribunal also found the Applicant’s other sexual offences to be serious, including the “unlawful & indecent assault” offence and the Domestic Violence Offences, particularly those where the victims were assaulted. The construction of paragraph 13.3 of Direction No 79 confirmed in FYBR (FC), together with these principles, supports the conclusion that the Australian community would expect the Applicant’s Visa to remain cancelled, and consequently, that the Cancellation Decision should not be revoked.
The Tribunal will discuss the weight to be given to this consideration at the conclusion of these reasons for decision as part of the overall weighing exercise.
OTHER CONSIDERATIONS
Paragraph 14 of Direction No 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
International non-refoulement obligations
The Tribunal is required to consider whether Australia’s international non-refoulement obligations (paragraph 14.1 of Direction No 79) arise on any of the submissions, materials or evidence before the Tribunal.
In his personal circumstances form the Applicant stated that he had concerns for his welfare if he were to be returned to PNG. He stated (G15/117; see also transcript/41-42):
I am really concern [sic] about my welfare and safety. I know that my birth country is a very dangerous place to live in were [sic] young adults like me gets kill [sic] everyday on the streets, Because of triboul [sic] war and cultural differences between mountain and coastal people.
He further stated (G15/117): “Going back to PNG, I’m facing a range of issues including homelessness, Death, kidnap, starvation…” (see also transcript/42).
The Applicant conceded that the types of risks he had articulated were also faced by other members of the community (transcript/42). Indeed, a Department of Foreign Affairs and Trade Country Information Report on Papua New Guinea dated 10 February 2017 (DFAT Report) states at 2.35 (Exhibit R2/108), under the heading of “Law and Order” that:
While varying in degree according to location, the overall crime rate in PNG is extremely high and is characterised by high levels of violence. Crimes occur randomly, and are particularly prevalent in Port Moresby and other major cities; the settlement areas of towns and cities are particularly dangerous. Machetes and firearms are often used in assaults and thefts. Car-jackings, armed robberies, assaults (including sexual assaults) and stoning of vehicles are common. The types of crimes experienced in PNG vary significantly by region and by gender. Gender-based violence and crimes against children occur regularly, and total crime victimisation for women and children are likely to be heavily under-reported…
The DFAT Report also says the following about “Tribal Violence” at paragraph 2.36-2.37:
2.36Tensions between and within PNG’s hundreds of different groups occur frequently across PNG, and may be triggered for a variety of reasons, including land and territory-related issues, accusations of sorcery and witchcraft, and inequality. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, death and serious injury.
2.37Tribal violence is particularly prevalent in the Highlands provinces, which account for almost half the country’s population…
2.38Tribal conflict has become increasingly violent in recent years as individuals have had greater access to firearms and other high-powered weaponry, and as those fighting have increasingly been affected by alcohol or drugs…
There were, however, no assertions, nor any evidence that the Applicant belonged to any tribe. When asked further about his fears of harm, the Applicant stated that it was because he did not know anyone in PNG, as well as because he had lived in Australia, that he feared that he may be kidnapped and held for ransom or killed (transcript/42-43). There is, however, no objective or corroborative evidence of this type of harm to persons who have returned to PNG after living in Australia. Also, the DFAT Report under the heading, “Conditions for Returnees” (Exhibit R2/125) states at paragraph 5.33:
There is no mechanism available to monitor returnees once they have returned to PNG. DFAT does not have any information available on conditions faced by those who have not refused protection, and who have been returned to PNG.
As there is no corroborative evidence to support the Applicant’s claims that he will face harm if returned to PNG, the Tribunal cannot conclude that Australia’s non-refoulement obligations are engaged and regards this consideration as being neutral. The Tribunal does, however, note that the Applicant can apply for a protection visa, making it unnecessary to reach a definitive conclusion about whether non-refoulement obligations are owed to the Applicant (paragraph 14.1(4) of Direction No 79).
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, 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).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Further, paragraph 6.3(7) of the principles section of Direction No 79 states:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
The Applicant has resided in Australia for approximately seven and a half years, having arrived here when he was 16 years of age on 18 January 2013 (G11/59) with his parents and four younger siblings (G15/107). Since coming to Australia, the Applicant has not been back to PNG (transcript/27).
The Applicant has a 22-year-old brother, a 16-year-old brother, a 12-year-old sister and a seven-year-old brother living in Australia (G15/107). The Applicant’s evidence was that all his family resides in Australia, and that he did not have any family in PNG (transcript/20, 26, 42). The Applicant also described having a close relationship with his 22-year-old brother who is studying at university, and that he often seeks advice from the Applicant (transcript/40). The Applicant’s evidence was that on at least one occasion his brother had expressed suicidal thoughts and that the Applicant had called the police to assist him (transcript/47). As well as his parents and younger siblings, the Applicant also listed four cousins as his close family members on his personal circumstances form (G15/11).

The evidence of the Applicant and his mother was somewhat inconsistent. They both initially stated in their evidence that they had no family in PNG. However, subsequently they both indicated that they may have some family members in PNG, but that they had not maintained contact since arriving in Australia. For example, the Applicant stated that (transcript/22):
… for me going back to PNG, like, it’s not an option for me to go. Because all my family’s here, all my siblings, my parents, everyone is here. I’ve got no-one back at home and I – ever since I came here I never ever contact any of my relative or extended family that I know. I don’t even know anyone back at home.
He later stated that his family had not maintained contact with any relatives since coming to Australia (transcript/46): “since we come [sic] here, like, we cut off from everyone, like, that’s what I was saying from the start, like, I said likes since we came here, like, we cut everyone, like, out of it because there’s too much going on”.
The Applicant’s mother stated that her husband has family members in PNG but that “they don’t know about my kids and we are our own family” (transcript/60). The Applicant’s mother further stated that she also had family in PNG, including her mother who was suffering from health issues and was homeless following the death of her father (transcript/60).
The Tribunal’s impression was that there was a reluctance on the part of the Applicant and his mother to acknowledge any family members in PNG. However, the Tribunal accepts that the Applicant’s immediate family is in Australia, and that he does not appear to have any ongoing relationship or contact with any family members in PNG. The Tribunal accepts that the Applicant’s family in PNG are likely to be able to offer him minimal to no support if he is returned there.
The Applicant has ties to the Australian community, having finished his secondary schooling in Australia and having joined his local football team when he was in year 11, where he progressed to play in the senior team. The Applicant’s football coach, R, stated that the Applicant attended church in the two years prior to his going to prison and also regularly participated in a “young adult male bible study group” also run by R at his home (letter from R in Exhibit A2). The evidence of R indicated that he would be able to continue to offer the Applicant this support if he is able to remain in Australia, and could also assist him to find work because R is the owner of a building company (transcript/57-58). The Applicant’s friend, B, gave evidence that she was willing to help him settle into the community and to find work (transcript/64-65), which is also indicative that he has friends in the community who are willing to support him (Exhibit A1).
The Applicant committed his first offence of “possessed an article with intent to injure (disable)” on 19 December 2015 (S2/37), approximately two years and 11 months after arriving in Australia, when he was 19 years of age. He was convicted in the Perth Magistrates Court on 11 January 2016 (G6/27). This, in the Tribunal’s opinion, was a short time after reaching the age of 18 and can also be regarded as having commenced within a short time of having arrived in Australia. The Tribunal is also of the opinion that the Applicant had only been participating in, and contributing to, the Australian community only for a short period of time before he started offending, and notes that the Australian community would have a lower tolerance of his offending as a result (paragraph 6.3(5) of Direction No 79).
The Applicant has made some positive contributions to the community. The Applicant’s friend, B, gave evidence that she met the Applicant at a football match, and that in approximately 2014 or 2015 he “helped volunteer at several Indigenous workshops aimed to improve the social, emotional an [sic] general health and well-being of Aboriginal and Torres Strait Islanders throughout Perth metro, through sporting and social events in the Indigenous community” (A1; transcript/64-65). In his personal circumstances form, the Applicant also stated that he had volunteered with church fundraising and had worked as a mechanic and a roof carpenter (G15/115-116). However, the Applicant’s positive contributions are somewhat minimised by his offending history over a 22 month period and his prison sentence from 30 January 2018 until 30 March 2019 (G10/54).
The Applicant’s mother gave evidence that the Applicant’s younger siblings miss him and ask when he is coming home. She further stated that the Applicant has previously helped her to cook, do dishes and to drop and pick up the younger children from school (transcript/61). The Applicant’s mother and father wrote a character reference in support of his staying in Australia, and stated their willingness to offer him accommodation in their home and that they would help and support him to find a job and to plan for his future (Exhibit A1). The Applicant’s mother’s evidence was that she was worried about the Applicant’s wellbeing if he were returned to PNG because she did not think it was safe (transcript/60).
The Tribunal finds that if the Applicant were removed to PNG, it would have a detrimental emotional impact on his mother and father, who will be concerned for his welfare and miss him as well as his 22-year-old brother, who relies on the Applicant for advice and support. His younger siblings will also miss having an in-person relationship with their older brother and may be detrimentally affected by his removal. The Tribunal refers to its discussion above regarding the best interests of relevant children in this regard.
The Applicant has resided in Australia for approximately seven years, having arrived in Australia as a 16-year-old. This is not a lengthy period but can be regarded as significant, given that the Applicant finished his teenage years and early adulthood in Australia. The Applicant did start offending shortly after arriving in Australia and has made some contributions to the community in 2014-2015, which appears to have been interrupted by his offending and prison term. The Applicant’s immediate family (his parents and four younger siblings) reside in Australia, and they are likely to suffer emotional detriment if he is removed to PNG. He also has support from his football coach, R, and friend, B. Overall, the Tribunal finds that this consideration weighs moderately in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before the Tribunal.
Impact on victims
Paragraph 14.4(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
This consideration also does not arise on the material before the Tribunal, because the Tribunal has no information regarding the impact of a decision not to revoke on victims or their families.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides:
(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, medical and/or economic support available to them in that country.
The Applicant is 24 years of age and his evidence was that he is in good health, except for an anterior cruciate ligament injury which occurred when he was playing football in prison (transcript/51).
There are unlikely to be any language barriers because the Applicant speaks English and “Pidgin” (transcript/46), with English being an official language (see DFAT Report, Exhibit R2/104, paragraph 2.7).
When he moved to Australia as a 16-year-old, the Applicant described having some difficulty adapting to the Australian culture (transcript/20). As he has only been in Australia for the last seven years and grew up in PNG until the age of 16 years, the Applicant will have some familiarity with the PNG culture. The Applicant’s evidence was that his family would not visit or relocate with him if he were returned to PNG (transcript/44 and 45). The Applicant’s mother, when asked if she would visit him, did not directly address the question, stating that, amongst other things, “[u]nfortunately, we don’t have anyone there and we don’t have anyone in the city to touch down and then to – hometown, it’s very difficult” (transcript/60). The Tribunal accepts that although the Applicant’s parents and siblings are citizens of PNG, there is nevertheless some reluctance to return there to visit the Applicant. The Tribunal acknowledges that the Applicant may have difficulty adjusting to life in PNG as a result of living in Australia for the last seven years. He is also likely to experience emotional hardship from being separated from his parents and siblings as well as having a lack of any family support or friends in PNG.
The Applicant was concerned about his ability to find employment in PNG because he believed that a person’s employment opportunities in PNG were based on knowing someone who could give them a job. Although the DFAT Report acknowledges corruption in the business sector in PNG (R2/105, paragraph 2.15), there is no evidence to support the Tribunal making a finding that the Applicant’s ability to find employment would be impacted by his lack of contacts in PNG. The Applicant’s ability to speak English, together with his skills as a diesel mechanic (transcript/45) and his certificate IV in Work Health and Safety may assist him to find employment, particularly given the prevalence of the “minerals and energy extraction sector” in PNG which “accounts for the majority of export earnings” (R2/104, paragraph 2.11).
The Applicant’s mother’s evidence was that she could try to send him some money if he was returned to PNG, however she was concerned that the money would not reach him due to problems with the “communication systems” (transcript/63).
The Applicant stated that he was worried about contracting COVID-19 if returned to PNG (transcript/43). At the time of the hearing, the number of active cases in PNG was 222 (transcript/72; see email from Respondent dated 25 August 2020). The Tribunal agrees with the Respondent’s submission that the Applicant’s risk of catching COVID-19 if returned to PNG is speculative (transcript/72). It is likely that the Applicant would have the same access to healthcare as other PNG citizens, although the Tribunal notes the DFAT Report states that “PNG’s health sector faces a number of major challenges” including “a critical shortage of medical staff for health, frequent shortages of essential medicines and supplies, and leadership and management capacity limitations at all levels of the system” (R2/106, paragraph 2.21).
After living in Australia for the last seven years, the Applicant would undoubtedly face difficulty in re-adjusting and establishing himself in PNG. The Applicant expressed concerns about being homeless if he is returned to PNG. However, there was no evidence before the Tribunal about access to social welfare in PNG, or the availability of accommodation for the Applicant if he was returned to PNG. His mother may be able to provide him with some limited financial assistance, but the Applicant will have little or no family support, nor any other existing social networks if he were returned there. Although the Applicant may be able to maintain contact with his family members in Australia by telephone, the internet or other electronic means, he is likely to experience emotional hardship if he is separated from his immediate family. The Tribunal also notes the Applicant’s mother’s evidence about poor communication systems in PNG (transcript/63), and if that is accepted, it may mean that communicating with his family in Australia would be difficult or less frequent.
Overall, the Tribunal finds that the Applicant may encounter some difficulties and hardship establishing himself and maintaining a basic standard of living if he were to return to PNG and is likely to suffer emotional hardship from being separated from his immediate family. Consequently, the Tribunal finds that this consideration weighs moderately in favour of the revocation of the Cancellation Decision.
Impact of COVID-19 pandemic
If the Tribunal affirms the Reviewable Decision, the Applicant must be removed to PNG as soon as is reasonably practicable (under s 198 of the Migration Act). Given current restrictions on international travel due to the COVID-19 pandemic, it may not be possible for the Applicant to be removed in the immediately foreseeable future. Thus, if the Tribunal affirms the Reviewable Decision, the Applicant may face an additional period of detention before it will be reasonably practicable to remove him to PNG. However, as noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299] “[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides”.
The Tribunal finds that this factor weighs slightly in favour of the revocation of the Cancellation Decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 79.
In relation to the first primary consideration, the Tribunal found that:
(a)the nature and seriousness of the Applicant’s conduct weighs strongly against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.1 of Direction No 79); and
(b)the risk to the Australian community should the Applicant commit further offences weighs strongly in favour of the Tribunal refusing to revoke the Cancellation Decision (paragraphs 13.1 and 13.1.2 of Direction No 79).
Overall, with respect to the first primary consideration, the Tribunal concluded that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of

Direction No 79), weighs strongly in favour of the Tribunal refusing to revoke the Cancellation Decision.
With respect to the second primary consideration, being the best interests of minor children (paragraph 13.2 of Direction No 79), the Tribunal found that the best interests of the Applicant’s seven-year-old and 12-year-old siblings weigh moderately, and the interests of his 16-year-old brother weigh slightly in favour of revocation of the Cancellation Decision
The Tribunal has found that the third primary consideration, being the expectations of the Australian community (paragraph 13.3 of Direction No 79) would be that the Cancellation Decision should not be revoked. The Tribunal must now determine the weight to be applied to this consideration.
In determining the weight to be afforded to the third primary consideration, the Tribunal notes that the first primary consideration regarding the protection of the Australian community weighed against the Applicant. This consideration was comprised of the nature and seriousness of the Applicant’s offences, which weighed strongly against the revocation of the Cancellation Decision. It was also comprised of the likelihood of the Applicant

reoffending, with the Tribunal finding that the Applicant had a moderate risk of

reoffending, and that any risk of similar offending in the future is unacceptable, given the nature of harms caused to individuals and the community from sexual offending.
Further, in determining the weight to be applied to the third primary consideration, the Tribunal must also balance the first primary consideration of the protection of the Australian community with the considerations that weigh in the Applicant’s favour. These considerations include: the primary consideration of the best interests of minor children, namely the interests of the Applicant’s minor siblings which, for his seven and 12-year-old siblings weighed moderately and for his 16-year-old brother weighed slightly, in favour of revocation of the Cancellation Decision. Additionally, the Tribunal found that the impediments the Applicant would face if returned to PNG weigh moderately in favour of the revocation of the Cancellation Decision (paragraph 14.5(1) of Direction No 79). Further, the strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No 79) weighed moderately in favour of the revocation of the Cancellation Decision. The Tribunal has also considered the uncertainty of the impact of the COVID-19 pandemic, including the amount of time the Applicant may potentially be detained for until he can be returned to PNG, which weighed slightly in favour of the revocation of the Cancellation Decision.
The Tribunal could not conclude that Australia’s non-refoulement obligations are engaged by any claims raised by the Applicant or on the materials before it and found this consideration to be neutral.
Thus, after balancing the relevant primary and other considerations, the Tribunal concludes that the expectations of the Australian community would weigh strongly against the revocation of the Cancellation Decision (paragraph 13.3 of Direction No 79).
In conclusion, the Tribunal is not satisfied that there is another reason why the Cancellation Decision should be revoked. This is because the Tribunal finds that the primary considerations of the protection of the Australian community, and the expectations of the Australian community outweigh the considerations which favour revocation of the Cancellation Decision, being: the primary consideration of the best interests of the Applicant’s three minor siblings; the other considerations of strength, nature and duration of ties; extent of impediments if removed; and the possible delay in the Applicant being removed due to the impact of the COVID-19 pandemic.
Having had regard to all the relevant primary considerations and relevant other considerations in accordance with Direction No 79, the Tribunal is of the view that the correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision dated 16 June 2020 is affirmed.

I certify that the preceding 149 (one hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...........[Sgd]..........................................................
Associate
Dated: 7 September 2020

Date of hearing:

21 August 2020

Representative for the Applicant:

Representative for the Respondent:

Self-represented

Mr L Dennis, MinterEllison

[2020] AATA 3441

7 September 2020

Key Legal Topics

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Immigration

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