Ikupu and Minister for Home Affairs (Migration) - [2019] AATA 2545

Ikupu and Minister for Home Affairs (Migration) [2019] AATA 2545 (13 August 2019)
Division: GENERAL DIVISION
File Number(s): 2019/3012
Re: Francis Ikupu
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Damien O’Donovan
Senior Member Theodore Tavoularis

Date:13 August 2019
Place:Canberra

The decision under review is affirmed.
........................................................................
Senior Member Damien O’Donovan
Presiding Member
Catchwords
MIGRATION – non-revocation of mandatory cancellation of visa –Visa – where visa was cancelled under s 501(3A) because applicant did not pass the character test - substantial criminal record under s 501(7) – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 79 – risk of re-offending – the protection and expectations of Australian community – minor children – strength nature and duration of ties – impact on victims – impediments to applicant if removed – decision under review affirmed
Legislation
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Migration Act 1958 (Cth)
Cases
DKXY v Minister for Home Affairs [2019] FCA 495
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
REASONS FOR DECISION
13 August 2019
INTRODUCTION

Mr Francis Ikupu (‘the applicant’) was born in Papua New Guinea (‘PNG’) in 1979. The applicant arrived in Australia on 31 January 1995, and apart from a brief overseas trip in 2014 has lived here ever since. On 24 September 2014 he was granted a Class BB Subclass 155 Five Year Resident Return visa (‘the visa’).[1] On 30 October 2018, the applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (‘the Act’).[2] The visa was cancelled on the grounds that the applicant has a substantial criminal record and therefore failed the character test and was serving a full-time sentence of imprisonment in a custodial institution.[3] On 31 October 2018, the applicant made a request for revocation of the mandatory visa cancellation under section 501(3A) of the Act.[4] On 21 May 2019, a delegate for the Minister for Home Affairs considered the request and decided not to revoke the original decision to mandatorily cancel the applicant’s visa pursuant to section 501CA(4) of the Act.[5] On 30 May 2019, the applicant applied to the Administrative Appeals Tribunal (‘Tribunal’) for review of that decision.
[1]G2, s 501 G-Documents, folio 43.
[2]G2, folio 43.
[3]G2, folio 43.
[4]G2, folio 71.
[5]G2, folio 9 – 10.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations [about the revocation] in accordance with the invitation [proffered under subsection (3)]; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The applicant made the representations required by s 501CA(4)(a) and, for the brief reasons explained below, the applicant does not pass the character test. Consequently, the only substantial issue to be determined is whether the discretion to revoke the mandatory cancellation because there is another reason to do so, should be exercised in the applicant’s favour.
In considering that question the Tribunal approaches the matter consistently with the observations of the Full Court of the Federal Court in Minister for Home Affairs v Buadromo:[6]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]
[6] [2018] FCAFC 151.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 5 May 2006, the applicant was sentenced to 2 years and 4 months imprisonment by the District Court of South Australia after having been convicted of possessing cannabis for sale.[8] The Tribunal is therefore satisfied that the applicant does not pass the character test and the passing of it cannot be relied upon as the basis for the revocation of his visa cancellation. The applicant must establish that there is another reason why the original decision should be revoked.
[8]G9, folio 335.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound, in accordance with s 499(2A), to comply with any lawful directions made under the Act. In this case Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (’the Direction’) applies.[9]
[9] On 28 February 2019, the former applicable direction, Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
Paragraph 6.2 of the Direction provides general guidance in relation to the exercise of the discretion. It relevantly provides:
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…reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3 of the Direction relevantly provides:
(1)…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…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 cancel [non-citizens’] visas if they commit serious crimes in Australia or elsewhere;
(3) A non-citizen who has committed a serious crime, including of a violent…nature, and particularly against women or children…should generally expect to forfeit the privilege of staying in Australia.
(4)…
(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)…
(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 the non-citizen’s visa should be cancelled…
The Direction requires that, informed by the principles set out in paragraph 9 above, I must take into account the considerations in Part C of the Direction in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[10] Part C commences at paragraph 13. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.[11]
[10] The Direction, paragraph 7(1)(b).
[11] Ibid, paragraph 13(2)(a)-(c).
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Tribunal notes the significance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 [now Direction 79] does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 [now Direction 79] does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [now Direction 79] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[13]
[12] [2018] FCA 594.
[13] Ibid at [23].
For the purposes of determining whether the statutory discretion should be exercised favourably to the applicant, set out below are the Tribunal’s findings of fact. The facts are largely uncontentious. The evidence which provides the foundation for the findings is referenced. Some of the findings are based on police reports, which have had the names of some participants redacted. The names of persons involved in the incidents have been inferred from other evidence the applicant gave and the timing of the reports. The names of the applicant’s partners and children have been identified only by their initials.
THE APPLICANT’S BACKGROUND – WORK, SOCIAL AND CRIMINAL HISTORY
The applicant arrived in Cairns, Australia on 31 January 1995.[14] He was 15 years old. He arrived from PNG with his family which consisted of his step father, his mother and his two brothers.[15] Apart from a short trip back to PNG in 1996 and an overseas trip to the Philippines in 2014, he has not left Australia since his arrival.[16] Prior to moving to Cairns the applicant was living in Port Moresby. He had moved to Port Moresby at about the age of 4. Prior to that he had lived in a village. He speaks English and Tok Pisin, which are two of the three important languages in PNG.[17]
[14] G11, folio 344
[15] G2, folio 94.
[16] G11, folio 344.
[17] Transcript of Proceedings, 24 July 2019, 15.
In 1996, the applicant moved with his family to Canberra in the Australian Capital Territory. The applicant finished Year 12 and obtained his Year 12 Certificate and appears to have had regular employment, engaged with local sporting clubs and commenced, though not completed, courses at Canberra Institute of Technology.[18]
[18] G2, folio 94 - 95.
The applicant’s offending began in 1997. Between May 1997 and December 2004 the applicant had convictions recorded for multiple theft and property damage charges and for other offences including offensive behaviour in a public place, possessing a prohibited substance, and resisting arrest. He was before the Children’s Court on 3 occasions, between May 1997 and December 1997 and was before the Magistrates Court on 10 occasions between August 1998 and December 2004. The longest sentence he received in this period was 12 months in an institution imposed by the Children’s Court on 18 December 1997.[19]
[19] G9 folio 336
In 2005 the applicant was involved in a number of incidents which required police attendance including:
(a)A fight in a nightclub in January 2005;[20]
(b)An assault on an Irish tourist in Canberra City in May 2005;[21]
(c)Acting in a disorderly manner in June 2005.[22]
[20] Exhibit 10, folio 10.
[21] Ibid, folio 13.
[22]Ibid, folio 15.
On 5 November 2005, the applicant was arrested in Adelaide and charged with possessing cannabis for the purpose of selling it to another person. The applicant pleaded guilty to the charge and was sentenced on 5 May 2006.[23] The circumstances of the offence are set out in the sentencing remarks:
At about 10.00 a.m. on that day you booked in at the bus terminal in Franklin Street. You purchased a ticket for the 11.00a.m. service to Canberra. You booked in a large black sports bag. While you were waiting for the bus to leave a drug search of the cargo hold of the bus was conducted by a police officer and a police dog. The dog made a positive indication on your large black sports bag. You were asked to alight from the bus. You initially identified the sports bag as belonging to you but denied any knowledge of what was inside the bag.
The bag was opened and it … contained two large vacuum-sealed plastic bags which together contained 16 individual plastic bags, each of which contained between 447.5 grams and 458 grams of female cannabis plant material. Accordingly, each of the 16 bags contained about a pound of cannabis. The total weight of the material was 7.259 kg. The value of the cannabis, if sold in pound lots, was, according to an expert’s evidence, in the region of between about $31,900 and $50,750.[24]
[23] G2, folio 50.
[24] Ibid.
The applicant was sentenced to 2 years and 4 months in prison with a non-parole period of 10 months.[25]
[25] Ibid, folio 52.
The applicant’s evidence to the Tribunal, as to the circumstances in which this offence was committed, was that he had become indebted to an unknown person in Canberra while he was a student. This person loaned him money to cover his study expenses and other bills. When he couldn’t repay the loan he was physically threatened and forced to agree to carry drugs from Adelaide to Canberra.[26]
[26] Transcript of Proceedings, 24 July 2019, 37; G2, folio 95.
On 12 July 2006, while the applicant was still in prison, the Department of Immigration and Multicultural Affairs notified the applicant that his visa may be liable for cancellation on character grounds under section 501 of the Migration Act 1958 in light of his criminal conviction.[27]
[27] G4, folio 259 - 262.
The applicant made a submission in response dated 15 August 2006. The submission stated:
This is my first time in prison and it certainly has been a wake up call. The rehabilitation experience has opened up my eyes and taught me how miserable life can be with when you choose to continue along the wrong path. Freedom is a privilege that must not be taken for granted. While out on parole I plan to get a job and resume my studies. I will also partake in alcohol counselling and anger management courses. With the necessary adjustments and some beneficial guidance from family and friends I see an honest and righteous future manifesting.
So from the depths of my heart, I request an opportunity to remain in Australia. I promise to abide by this country’s laws and contribute positively to this beautiful nation. I am a good person that has made a lot of mistakes. Please give me the chance to make amends.[28]
[28] G2, folio 105.
On 30 August 2006, the applicant was advised that the delegate had decided not to exercise his discretion to cancel the applicant’s visa but instead to warn the applicant that a fresh assessment will be made with a view to considering cancellation of the applicant’s visa if he was convicted of any further offences.[29]
[29] Ibid, folio 103.
He was released on parole on 4 September 2006.[30]
[30] Ibid, folio 54.
The applicant was back before the ACT Courts on 5 March 2007 and 6 March 2007 and dealt with in relation to assault charges and a failure to appear after a bail undertaking. These charges relate to events which occurred prior to his incarceration in South Australia.[31] He was released on a good behaviour order for a period of 18 months.[32]
[31] Transcript of Proceedings, 24 July 2019, 28.
[32] G9, folio 335.
Around this time the applicant began working as a shop attendant. By 2009 he had moved into the construction industry as a labourer. From 2010 he states he worked as a maintenance man for 6 years before returning to labouring work in 2017.[33] It is unclear whether that work was ever consistent or sustained but the applicant did have periods of productive work.[34]
[33] G2, folio 84.
[34] See Transcript of Proceedings, 24 July 2019, 39 – 40; See Exhibit 10, folio 106.
In September 2008, the applicant was involved with police again after his pregnant partner (C.H[35]) called them in relation to a disturbance caused by the applicant. Police attended his partner’s home at 5am in the morning. The applicant was intoxicated and his partner was not prepared to let him in ‘while he was intoxicated’.[36] The applicant agreed to leave following police intervention. However, he returned later that morning banging on the door ‘still heavily intoxicated’[37]. His partner reported that she was ‘afraid he would hurt her’.[38] However, by the time police arrived the applicant was in the house and was ‘asleep in the bed’. The applicant stated that ‘he had kicked in the door because he wanted to go to sleep’.[39] His partner stated that ‘they fought about twice a week but he had never been violent with her’.[40]
[35] G2, folio 95.
[36] Exhibit 10, folio 26.
[37]Ibid, folio 27.
[38] Ibid.
[39] Ibid, folio 28.
[40] Ibid.
The applicant’s son, I.I, was born on 26 December 2008.[41]
[41] G2, folio 99.
On 30 April 2009, police responded to a complaint from C.H in which she claimed that she had been ‘threatened by her 30 y/o boyfriend as she will not give him the car keys cos he has been drinking’.[42] When they arrived the police were advised of a verbal argument and to ensure that no offences occurred, the police arranged for the applicant to stay at a different location.[43]
[42] Exhibit 10, folio 31.
[43]Ibid, folio 32.
In September 2010, the applicant was back before the ACT Magistrates Court on a charge of destroying/damaging property not exceeding $1000. He was convicted and sentenced to a two month term of imprisonment but the sentence was suspended.[44] The applicant describes this offence in the following terms:
My destroy/damage offence in 2010 followed an incident where my then partner [C.H] threatened to prevent me from seeing my son. I was very upset and threw a rock which damaged the back window of a car that belonged to me but I had lent to [C.H].[45]
[44] G9, folio 334.
[45] G2, folio 112.

The applicant’s relationship with C.H. ended around this time. After the relationship with C.H broke down, the applicant’s relationship with his son, I.I, appears to have steadily diminished.
In 2011, the applicant began a relationship with H.M. This was also a troubled relationship. On 2 May 2011, the applicant was back before the ACT Magistrates Court and convicted on the following charges and received the following sentences:
(a)Special Driver Prescribed Concentration of Alcohol (reading 0.202) – fined $750 and disqualified from holding or obtaining a licence for 2 years;
(b)Driving while licence suspended – fined $750 and disqualified from holding a licence for 12 months;
(c)Using an unregistered vehicle – fined $200;
(d)Breach of good behaviour undertaking (relating to 14.9.10 conviction) – sentenced to 2 months in prison;
(e)Assault occasioning actual bodily harm – sentenced to 6 months imprisonment suspended after serving 3 months periodic detention;
(f)Damaging property not exceeding $1000 in value – sentence to 3 months imprisonment to be served as periodic detention;
(g)Common assault – released on good behaviour undertaking for a period of 6 months. [46]
[46] G9, folio 332 – 333.
The applicant’s account of the events which led to these charges is as follows:
My common assault offence in 2011 involved a relationship I had with a woman I was dating named [H.M]. One evening we both became very drunk and had an argument. I threw a laptop at the wall and the screen shattered with fragments hitting her across the arm. I was apologetic and sincerely tried to do everything I could to make it up to her. Our relationship ended soon after this.[47]
[47] G2, folio 112.
At some point after the break-up of the relationship with C.H, she took out a domestic violence order against the applicant which stated that the applicant could not be on her premises or within 100 meters of her. On 21 May 2012, C.H reported to police a breach of the order and they attended in relation to the complaint. C.H reported that she ‘has full custody but allows IKUPU to occasionally take [name of child redacted] for visits’.[48]
[48] Exhibit 10, folio 44.
The report to the police set out the following:
Because of the order [name of spouse redacted] and IKUPU have an arrangement whereby when he comes to collect [name of son redacted] he waits 100m from the house and sends an SMS to [name of spouse redacted] then goes outside and watches [name of son redacted] walk down the road until he reaches IKUPU. This way both parties do not breach the order.[49]
[49] Ibid.
The police reports indicate that the applicant began to breach the orders when he ran out of credit on his phone and so approached the house to let I.I’s mother know that he was ready to collect him rather than by sending an SMS. According to the police report this had occurred four times in the previous month.[50]
[50] Ibid.
On 13 May 2013, the applicant was convicted of minor theft and fined $400.[51]
[51] G9, folio 332.
On 8 June 2014, police were called to an incident which involved the applicant seriously assaulting his brother after his brother had assaulted him.[52] The altercation resulted in the applicant’s brother being taken to hospital.[53]
[52] Exhibit 10, folio 53 – 54. Transcript of Proceedings, 25 July 2019, 99 - 100.
[53] Transcript of Proceedings, 25 July 2019, 99 – 100.
In June 2014, the applicant went on a holiday to the Philippines. On 13 June 2014 and 19 June 2014 he filled out and submitted incoming passenger cards. On those cards he falsely answered ‘no’ to the question: do you have any criminal convictions?[54]
[54] G2, folio 106-107.
In 2015, C.H. moved to Young, NSW with another partner.[55] She lived there for approximately 8 months.[56] In that time the applicant estimates he saw his son twice.[57]
[55] Transcript of Proceedings, 25 July 2019, 96.
[56] Transcript of Proceedings, 25 July 2019, 96.
[57] Transcript of Proceedings, 25 July 2019, 97.
On 14 March 2016, the police were called by I.I’s mother after the applicant failed to return ‘their child’[58] as agreed. It is apparent that the complainant, although redacted in the material before the Tribunal, is C.H. She reported that “she had no serious concerns in relation to [the applicant’s] mental health or the like, and [the applicant] hadn’t seen their son as often recently.[59] The applicant returned I.I later that day having been delayed in Sydney on a visit to Lunar Park.[60]
[58] Exhibit 10, folio 56.
[59] Ibid, folio 57.
[60] Transcript of Proceedings, 25 July 2019, 96.
On 6 July 2016, the applicant was charged with driving a motor vehicle with alcohol in his blood. His reading was 0.198 noting that it was almost four times over the legal limit of 0.05.[61]
[61] G9, folio 332.
Later that year or early in 2017 the applicant began a relationship with D.L.[62] As a result of that relationship, I.I’s mother cut off all contact between I.I and the applicant.[63]
[62] Transcript of Proceedings, 24 July 2019, 52.
[63] Transcript of Proceedings, 24 July 2019, 52.
The applicant’s relationship with D.L. suffered from similar issues to the applicant’s two previous relationships. On 10 March 2017, the police were called by D.L[64] who became concerned after she made him leave her house as ‘he was becoming verbally aggressive towards her’.[65] He kept calling and texting her after he left and she became concerned when he said “I’m going to bring big guns at your work tomorrow”.[66] Before the Tribunal, the applicant explained those words as not being a violent threat but were words he used to describe to D.L the extra effort he would put in to make it up to her for his bad behaviour.[67] The Tribunal accepts that explanation. The police report is clear that ‘no direct threats of violence have been made … that police can establish at this time’.[68]The applicant did attend at D.L’s work the following day with a bunch of flowers.[69]
[64] D.L is not identified in the police report but the applicant confirmed in his evidence that she was the complainant: See Transcript of Proceedings, 24 July 2019, 57.
[65] Exhibit 10, folio 63.
[66] Ibid.
[67] Transcript of Proceedings, 24 July 2019, 57 – 58.
[68] Exhibit 10, folio 64.
[69] Ibid, folio 65.
On 9 June 2017, police were called to a further incident involving a verbal argument between the applicant and D.L. D.L confirmed that “there had been no physical violence or threats of violence and that all she wanted was for [the applicant] to leave her residence”.[70] Police were again called by D.L on 23 June 2017 in relation to a minor incident between her and the applicant.[71]
[70] Ibid, folio 73.
[71] Ibid, folio 75.
On 25 September 2017, police were again called by D.L after the applicant used a vehicle to block her driveway preventing her from leaving her house. Although D.L’s name is redacted in the police report, the report notes that the complainant notified police that the applicant was her ex-boyfriend who she met in ‘January 2017 via online dating’[72] which is consistent with the timeframe of the applicant’s relationship with D.L. The report notes, after she had run into the house [the applicant] had emailed her.[73] She reported the following to police:
The second [email] was a long e-mail in which Mr IKUPU stated he would completely remove himself from Ms [D.L’s] life, if she confessed that she had been texting via online dating applications to other men;
[72] Ibid, folio 78; See also Transcript of Proceedings, 24 July 2019, 56.
[73] Exhibit 10, folio 77.
D.L was adamant that she did no longer wish to be associated with Mr IKUPU and that she feared him because;
… he was extremely upset she did not wish to have a baby with him;
…
Ms [D.L] disclosed a history of violence that Mr IKUPU had displayed and exercised on her, however their was nil independent witnesses to support her reports; and
Ms [D.L] advised police she had applied for protection orders and they were awaiting execution.
Checks on police indices revealed that Mr IKUPU has an interim family violence order awaiting to be served, in which he was the respondent and Ms [D.L] is the applicant.
Ms [D.L] stated she had concerns and disclosed a physical and verbal violent history between her and Mr IKUPU, she stated he has a complete disregard for Police and authority figures. She stated she believed that he was intoxicated when he sent the e-mails and she suspects he is drink driving.
…
Ms [D.L] stated she believed that Mr IKUPU was possessive of her, and that he was a violent unpredictable person. She stated she had even observed him in possession of a silver coloured Taser, that was designed to look like a mobile smartphone
…
Police have considered Emergency Protection Orders (EPO), however this incident has lacked threats and physical violence. There is no evidence aside from Ms [D.L’s] testimony to support historical incidents.[74]
[74] Ibid, folio 79 – 80.
The applicant’s own evidence is that he was never physically violent towards D.L.[75] The Tribunal accepts that evidence.
[75] Transcript of Proceedings, 24 July 2019, 32.
Soon after this incident a family violence order was served on the applicant, an order which he then breached. As a consequence of the breach he was arrested and charged.[76]
[76] See Exhibit 10, folio 85; G9, folio 331.
On 23 November 2017, the applicant was released on bail on the condition that he not be on premises where D.L lives or works.[77] Later that day police attended D.L’s home and she allowed police entry into the premises and stated that the applicant was sleeping in the main bedroom. The police arrested the applicant for being in breach of his bail conditions. Police note that:
Both the [applicant] and Miss [D.L] stated that they misunderstood the conditions and did not believe the defendant being at the location would be in breach of any conditions of the bail undertaking.[78]
[77] Exhibit 10, folio 85.
[78] Ibid.
The applicant was subsequently transported by police to the ACT Watch House.
On 1 December 2017, the applicant was convicted of contravening a family violence order. He was fined a $1000 and entered into a good behaviour undertaking for 12 months.[79]
[79] G9, folio 331.
Soon after his release the applicant got married to D.L.[80]
[80] Transcript of Proceedings, 24 July 2019, 55.
D.L has two sons, M.L and L.L. Neither boy ever lived with their mother full-time while the applicant was in a relationship with her.[81] He was, however, living with D.L at a time when she may have had weekend access to the children.[82] On 13 December 2017, the father of the boys, whose name is redacted but whose identity remains evident on the information contained in the police report, reported to police that the applicant and D.L had driven past their Primary School while he was collecting his sons.[83] On the father’s account, since breaking up with D.L he had been ‘subjected to ongoing harassment and intimidation’.[84] During the incident that day, he reported that the applicant ‘had his window down and was staring at [him]. This caused [him] to feel intimidated’.[85]
[81] Transcript of Proceedings, 25 July 2019, 97.
[82] G2, folio 96; despite the applicant’s statement provided on 17 February 2019, the applicant, in his oral evidence, stated D.L had no contact at all: Transcript of Proceedings, 25 July 2019, 97 – 98.
[83] Exhibit 10, folio 87.
[84] Ibid.
[85] Ibid.
The applicant denies this incident[86]. When read in the context of other material before the Tribunal, the report to the police has the ring of truth about it. On this occasion the Tribunal is satisfied that the applicant’s recollection is not accurate.
[86] Transcript of Proceedings, 25 July 2019, 98.
Late on 20 January 2018, police attended a further domestic incident at the initiative of D.L.[87] The incident ended in the applicant being arrested and taken to the ACT Watch House. The police reported:
The Defendant smelt strongly of intoxicating liquor, was unsteady on his feet, and was slurring his speech.
The Defendant was highly aggressive, and Police formed the opinion that he was conducting himself in a manner directly or manifestly likely to provoke the use of force or violence and therefore likely to cause a breach of the peace to ensue. Due to the Defendant’s level of intoxication he was unable to sign an undertaking to keep the peace.[88]
[87] Exhibit 10, folio 90; Transcript of Proceedings, 25 July 2019, 74 – 76.
[88] Exhibit 10, folio 91.
At 7.30 am the following morning the applicant signed an undertaking before Police to keep the peace for a 24 hour period commencing at 7.30am that day. The applicant acknowledged to Police that he understood the undertaking and that if he failed to keep the Queen’s peace during that period, he would liable for arrest and may be held in custody until the next sitting of the ACT Magistrates Court. By 8.55 am he had returned to D.L’s residence and was refusing to leave. Police arrived and asked the applicant to leave which he refused to do.[89] Police arrested the applicant and returned him to the ACT Watch House.[90]
[89] Ibid, folio 93.
[90] Ibid, folio 93-94.
On 23 January 2018, D.L sought and obtained a further Family Violence Order.[91] She reported to police that ‘she might go to a refuge soon because she doesn’t feel very safe in her house now’. [92]
[91] Ibid, folio 96.
[92] Ibid, folio 97.
By May 2018[93] the applicant’s marriage to D.L had completely broken down and he had been asked to permanently leave her home.
[93] G2, folio 59.
In the early hours of 1 June 2018 the applicant began sending D.L a stream of texts and emails. The substance of those texts were described by counsel for the DPP when the applicant was being sentenced:
On 1 June 2018 between about 4 and 8 am, [D.L] received about 20 abusive text messages from the defendant, including comments such as “And fuck off, you dumb slut, loose whore bag skank of a putrid, worthless, tryna, wannabe, skank with used-up flaps because I’m writing a letter to the DPP confer.[94]
[94] Ibid.
After further approaches by the applicant that day, which, based on the sentencing remarks appear to have been attempts at an apology,[95] police seized the applicant’s mobile phone. Police estimated that since 4am Friday 1 June 2018 the applicant had sent to D.L 109 text messages, 43 emails and called her 40 times.[96] The applicant was charged with using a carriage service to menace, harass or offend.[97] The applicant was released on bail conditions including that he not contact, by any means, directly or indirectly, D.L.[98]
[95] See G2 folio 59 and 61.
[96] G2, folio 60.
[97] G9, folio 330.
[98] Exhibit 10, folio 98.
On 4 June 2018, the police applied for a family violence order on behalf of D.L. The order was granted and was served on the applicant on 8 June 2018. The order prohibited the applicant from being within 100 metres of D.L.
On Tuesday 3 July 2018, D.L was leaving her place of work. She saw the defendant near her car. The applicant then indicated that he wanted to talk to her and complained about the fact that she had been ignoring his emails. A co-worker intervened and walked with D.L to her vehicle. At that point the applicant drove off.[99]
[99] G2, folio 61.
Following this incident the applicant was arrested and remanded in custody.
Prior to being remanded in custody, the applicant had had limited contact with his son, I.I. On his own assessment, he might have seen I.I once in 2018 and he visited his school on 3 occasions in 2017, although he only made contact with him on one occasion.[100]
[100] Transcript of Proceedings, 25 July 2019, 95 – 97.
On 15 July 2018, D.L sent an email to the Minister for Home Affairs in the following terms:
I am writing this email in the hope that it will be read and action can be taken. This is in regard to Francis Michael Ikupu. I live in Canberra, last year I entered into a relationship with frank (sic), it was very abusive at which I suffered seriously, and ended up with mental illness and now on medication. I have been non stop harassed, stalked and abused by him since trying to leave months ago. The police have arrested him many times and he has many times breached FVO’s. I fear for my life if he gets out and I live with my very I’ll (sic) father. My kids don’t stay with me because I fear for there (sic) safety. He was threatened to be deported back in 2007. Since then he has served time in two other jails and committed other offences. He is now locked up till (sic) July 31^st. I am in fear they will let him out. I can’t sleep dreading up and coming court. Since he is not a citizen can u please look into having him deported as he is a threat to the community.[101]
[101] G10, folio 342.
On 21 September 2018, the applicant was sentenced in relation to charges of breaching a family violence order and a charge of using a carriage service to harass in respect of which he pleaded guilty.[102] He was sentenced to a total of four months imprisonment. The sentencing remarks included:
In terms of objective seriousness, the breach of the family violence order is aggravated by the fact that you’re on conditional liberty for the exact same offence, as well as it being a general circumstance of aggravation for both offences. That offence is toward the mid-range of objective seriousness. The carriage service is also toward the mid-range of objective seriousness for that type of offence. [103]
[102] G2, folio 33 – 34.
[103] Ibid, folio 66.
It was these offences, and the sentencing of the applicant to a term of imprisonment, which triggered the determination that his visa should be cancelled. The applicant was notified of the termination of his visa under section 501(3A) on 30 October 2018.[104] On 31 October, he made a request for the cancellation to be revoked.[105] In his request for revocation the applicant highlighted the following matters:
(a)He had lived in Australia for 23 years;
(b)His entire family were citizens of Australia including his wife and three sons;
(c)His wife suffers from medical conditions and requires care and support;
(d)He was actively employed before this matter and had been since completing year 12;
(e)He contributed positively to the community and was always seeking to improve and better himself every opportunity he got.
(f)He had no ties anywhere else.
[104] Ibid, folio 43.
[105] Ibid, folio 70.
The applicant in particular emphasised the impact on his partner, D.L, if he were to lose his visa. In relation to his son, I.I, he claimed to have ‘regular weekend visits until mid 2017’.[106] In relation to L.L and M.L, the applicant claimed that he regarded them ‘as his own’. Each time they visited he claimed ‘we’d spend family time’ on a range of activities. The applicant conceded however that “our children are facing complications because the last contact we had was before Christmas 2017” and “we’re going through a custody battle”. The applicant noted that his “immediate concern is the safety and mental health of my wife”.[107] The applicant asserted that there was absolutely no likelihood that he would re-offend because “my wife is the centre of my world”.[108] The applicant identified a 6 month vehicle immobilising condition in early March 2018 and a “reverse course” which enabled him to get back his driver’s licence as the only programs he had undertaken to help him to avoid offending.[109] The hardship the applicant identified as arising from his removal from Australia caused to members of the Australian community was:
Emotional and psychological consequences detrimental to my wife. My children’s identity and stability for their future. Grief and distraught throughout my family for the rest of our lives.[110]
[106] Ibid, folio 81.
[107] Ibid, folio 82.
[108] Ibid, folio 83.
[109] Ibid.
[110] Ibid, folio 85.
The applicant identified grave fears if he was required to return to PNG:
I don’t know anyone or have any family there. I am unadapt and without the necessary survival skills I will perish. I WILL DIE.[111]
[111] Ibid, folio 86.

The applicant also submitted:
Alcohol however has been my downfall and my charges are mostly alcohol related. I have overcome many obstacles and conquered my weaknesses and bad habits accomplishing so much more as a father and a husband. I strive to further myself and do it for my family. The most recent incident was over texting my wife 170 times over 48 hrs which was considered by police as harassing. I NEVER INTIMIDATE, THREATEN OR HURT MY WIFE. I approached her to make amends and that’s why I was charged with Contravene Family Violence order. MY WIFE AND I LOVE EACHOTHER, please give me a chance to complete our lives.[112]
[112] Ibid.
The application was supported by letters from his mother, a former employer (Mr Elvin) and a long email prepared by the applicant. The applicant’s email presented a picture broadly consistent with the facts outlined above, however it did include some claims which the Tribunal cannot accept. The applicant claims that “Meeting [D.L] has changed me a lot as a person and made me realize how much I value my life and took control of my responsibilities, she enabled me to detest drinking…”.[113] This is not true. The applicant continued to drink throughout his relationship with D.L in an extremely damaging way. The incident involving the police in January 2018 is a clear example of the applicant’s continued drinking, as is the text he sent on 1 June 2018 which the applicant believed was sent while he was intoxicated.[114]
[113] G2, folio 96.
[114] Transcript of Proceedings, 24 July 2019, 35.
The applicant also emphasised his health problems including arthritis, sciatica and medication which he is on which doesn’t allow any consumption of alcohol. He also emphasised that there is nothing for him in PNG and he is not equipped to cope there.[115]
[115] G2, folio 97.
On 15 November 2018, the family violence order D.L took out against the applicant was discharged. In its place the applicant gave an undertaking which included the following terms:
(a)Not to engage in behaviour that constitutes personal violence towards the protected person [D.L] including but not limited to the following behaviour:
(i)Threatening, harassing, intimidating or assaulting the persons;
(b)Not to be on the premises at [address of D.L redacted];
(c)Not to be within 100 meters of the protected person except at a Court or Tribunal proceeding or at a counselling or mediation session;
(d)Not to locate or attempt to locate the protected person or cause someone else to do so;
(e)Not to contact the protected person or cause someone else to do so except at a Court or Tribunal proceeding…or through a solicitor.[116]
[116] Exhibit 2C,
On 21 May 2019, a delegate of the Minister made a decision not to revoke the visa cancellation decision. On 23 May 2019, the applicant sought review of the decision in the Tribunal.
As part of the G Documents, the Tribunal received the following:
(a)A letter of support from R.G a long-time friend of the applicant who lives in Perth;
(b)The email from D.L sent on 15 July 2018 to the “MinistersMailbox”;
(c)An email from the applicant dated 30 May 2019 outlining health issues including gout and atrial fibrillation causing blackouts. The applicant emphasised that he would not survive in PNG if returned;
(d)A discharge referral from NSW Health dated 29 May 2019 relating to the applicant’s atrial fibrillation. The report noted the applicant was to continue with Rivaroxaban for a further 6-8 weeks and to continue with Metoprolol and Flecanide until review by Dr Nguyen. The applicant’s medications on discharge were Esomeprazole [for acid reflux], Mirtazapine [for depression], Quetiapine [for mood disorders], paracetamol, indomeacin [for gout], metoprolol [for heart conditions], rivaroxaban [a blood thinner], magmin [magnesium supplement], colchicine [for gout] and Flecanide [atrial fibrulation][117]; and
(e)A further submission from the applicant dated 30 May 2019 for the most part re-iterating points made in previous submissions and seeking “one last final chance” to prove himself.[118]
[117] G16, folio 357.
[118] G17, folio 363.
The applicant filed additional evidence ahead of the hearing. This consisted of:
(a)A further letter from his mother dated 11 July 2019;[119]
[119] Exhibit 1.
(b)An email from D.L dated 16 July 2019 stating that she was the applicant’s ex-wife and confirming that she was in contact with the applicant and that they “provide emotional support to each other due to our health conditions”;[120]
[120] Exhibit 2.
(c)Evidence of parcels being sent to the applicant by D.L;[121]
(d)Text messages between the applicant and D.L showing the kinds of issues they discuss;[122]
(e)A copy of the undertaking agreed to by the applicant on 15 November 2018 in substitution for the Family Violence Order made on 4 June 2018;[123]
(f)Various medical appointment notes and discharge summaries concerning issues with the applicant’s health;[124]
(g)A further submission from the applicant dated 17 July 2019;[125]
(h)A note from J.D a former employer who indicated he would re-employ the applicant if he were released and if work picked up;[126]
(i)An email from the applicant’s younger brother dated 14 July 2019 stating:
we are the only family he has and know, Francis has been a fairly decent person and worked hard plus [I.I] might need his guidance. He has made mistakes in the past mainly in his youth but that was due to alcohol and has gotten to mend his life and ways in recent years as he’s got older;[127]
(j)An email from the ACT Courts Protection Unit confirming that the applicant and D.L can agree to amend the family violence undertaking to allow contact via phone, Facebook and emails;[128]
(k)A medical report dated 9 July 2019 from Dr Corinna Pan indicating that the applicant is being investigated for possible sleep apnoea in the context of recurrent atrial fibrillation resulting in syncope.[129]
[121] Exhibit 2A.
[122] Exhibit 2B.
[123] Exhibit 2C.
[124] Exhibit 2C.
[125] Exhibit 3.
[126] Exhibit 4.
[127] Exhibit 5.
[128] Exhibit 6.
[129] Exhibit 7.
At the hearing the applicant gave evidence. He was for the most part an honest witness who gave his evidence in a reasonably straightforward manner. He was honest about the length and seriousness of his offending, the nature of his work history and the level of involvement he had with his son and the sons of his ex-wife. He offered explanations and context for various aspects of his offending but did not, for the most part, seek to deny the key factual matters which emerged from the sentencing reports and AFP records.
He appeared to have little insight into the negative consequences of his relationship with D.L and appeared to believe that if he was released from immigration detention that the relationship would continue in some form. He also appeared to genuinely believe that if released he would be a force for good in his son, I.I’s, life even though he accepted that he had very limited contact with him in recent years.
The applicant’s mother gave evidence on his behalf. At a factual level she confirmed that the applicant had no relations back in PNG. She clearly wanted the applicant to be released so he could return to Canberra. However, her evidence indicated that prior to his incarceration she had not had significant contact with the applicant.
The applicant’s friend, R.G, also gave evidence. He was an old friend who clearly admired the applicant, but he currently lives in Perth and has had limited contact with the applicant in the years leading up to his most recent incarceration.[130]
[130] Transcript of Proceedings, 24 July 2019, 48.
The applicant’s former employer J.D also gave evidence. He had formed a positive view of the applicant but from very limited exposure to him. The applicant had only been employed by J.D for a period of a ‘few months’.[131] J.D did not ever socialise with the applicant and J.D’s company did not have any work for the applicant, at the present time, were he to be returned to the Australian community.
[131] Exhibit 4, Transcript of Proceedings, 24 July 2019, 17 – 18.
It became clear during the course of the hearing that D.L was in regular contact with the applicant by Facebook messenger. The Tribunal thought about compelling her to give evidence but it was determined that because, (1) the Tribunal was prepared to accept as genuine the messages and email from D.L filed by the applicant without the need for corroborating evidence (2) the ample contemporaneous written evidence about the attitude of D.L to the offending and (3) given her apparently fragile mental state which may be aggravated by attendance and participation in the hearing[132] it was preferable not to take steps for her to give evidence.
[132] Transcript of Proceedings, 25 July 2019, 104.
In light of these findings it is now necessary to address the considerations in the Direction.
Primary Consideration A: The protection of the Australian Community
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. This criterion covers not only proven criminal conduct but also behaviour or conduct of concern where a conviction may not have been recorded or where the conduct may not strictly speaking have constituted a criminal offence. Such conduct may include, for example, involvement in activities indicating contempt or disregard for the law.[133] It includes conduct which may be considered under s 501(6)(c) and/or section 501(6)(d) of the Migration Act which includes behaviour relevant to assessing whether there is a risk that a person would harass, molest, intimidate or stalk another person in Australia.[134]
[133] See definition of Serious Conduct in Direction 79 Annex B
[134] Migration Act s 501(6)(d)(ii).
Paragraph 13.1(2) of the Direction further provides that decision-makers should 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Amongst those factors are:
(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…government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (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 immigration status…
...”
It is clear from the facts set out above that the applicant has a very long history of offending and other violent anti-social behaviour. His offending began 2 years after his arrival in Australia and it has continued throughout his time in Australia.
His early offending (prior to 2006) could perhaps be explained on the basis that he was relatively young and was adapting to a new culture having only arrived from PNG in 1997. However, even in that early period there were offences and other conduct which were of a serious nature. Convictions were entered in relation to possessing a prohibited substance, resisting arrest and robbery using force on a person. In addition, reports were made to police about violent conduct in a nightclub fight in January 2005 and an assault on an Irish tourist in May 2005. This second incident was an unprovoked assault on a stranger.[135]
[135] The Direction, paragraph 13.1.1(1)(a).
The drug offence for which the applicant was incarcerated in 2006 was a serious drug offence. The seriousness of the crime is reflected in the sentence which was imposed on the applicant (2 years and 4 months). However there were extenuating circumstances which led to the offence and the applicant has never committed a similar offence since being released from prison.[136]
[136] Ibid, paragraph 13.1.1(1)(a), (d) and (e).
From 2008 the applicant’s offending has fitted a clear pattern. The applicant has been repeatedly reported to police for intimidating conduct involving his domestic partners. While there is no evidence of a deliberate physical assault on any of those partners, the applicant has consistently behaved in a manner which has led domestic partners to require police intervention into the applicant’s conduct with the result of family violence orders being made against him. The picture that emerges is of a person who behaves in such a way that his domestic partners find him intimidating and frightening when he is drunk.[137]
[137]Ibid, paragraph 13.1.1(1)(b), (e) and (f).
The applicant consistently gets so angry that he damages property – kicking down the door to enter the home of C.H, throwing a rock through the window of a car he had loaned to C.H and smashing H.M’s laptop against the wall as the Tribunal has referred to in paragraphs [28], [31] and [34] of this decision.
One of his domestic partners was injured in one of these incidents, leading to the applicant being convicted of assault occasioning actual bodily harm. The applicant’s former partner, C.H. was sufficiently concerned about the applicant after they broke up that she maintained a domestic violence order against him to limit her contact with him and to manage any adverse situation that may have arisen when the applicant had access to his son.
The applicant’s relationship with D.L was characterised by the same features. Verbal aggression or some other form of harassment producing a genuine fear resulting in police action. Even accepting that D.L’s behaviour towards the applicant was very inconsistent (for example by allowing him to sleep at her house in breach of his bail conditions in November 2017) there is no doubt that on many occasions she was genuinely afraid. Her statement to police on 25 September 2017 that ‘she believed that Mr IKUPU was possessive of her, and that he was a violent unpredictable person’[138] is credible and consistent with what is known about him. It is echoed in her email to the Minister of 15 July 2018 where she states that ‘He is now locked up till July 31^st. I am in fear they will let him out. I can’t sleep dreading up and coming court [sic].’[139]
[138] Exhibit 10, folio 80.
[139] G10, folio 342; The Direction, paragraph 13.1.1(1)(b) and (f).
It is also clear that the applicant has little or no respect for lawful authority. His behaviour in January 2018 when he:
(a)was arrested for a breach of the peace at D.L’s house;
(b)signed an undertaking not to breach the peace at the ACT Watch House;
(c)then returned to D.L’s house again only to be arrested a second time
is but one example demonstrating an unwillingness to confine his behaviour within lawful limits. As the applicant conceded, by the time he returned to D.L’s house after being released that day he was no longer intoxicated.[140] It was a conscious choice on his part.[141]
[140] Transcript of Proceedings, 25 July 2019, 76.
[141] The Direction, paragraph 13.1.1(1)(c).
In the end it was a combination of the applicant’s harassment of his former domestic partner and a refusal to respect lawful authority which landed him in jail and brought about the cancellation of his visa. The custodial sentence is not a one-off event but the culmination of a pattern of behaviour which dates back to 2008.[142]
[142] Ibid, paragraph 13.1.1(1)(b), (c), (d) and (f).
In assessing the offending and serious conduct the following should be noted. The applicant is certainly capable of violent offending. Over the years he has assaulted other men, including his brother. His behaviour towards women is undoubtedly aggressive, frightening and intimidating but to date appears to fall short of physical violence. The applicant has been aggressive towards police in the performance of their duties resulting in his arrest on a number of occasions. The applicant has been a consistent offender over many years and the seriousness of the offending, particularly in relation to domestic partners, has not diminished. The applicant has, however, avoided any further drug offending since his conviction in 2006.[143]
[143] Ibid, paragraph 13.1.1(1)(a), (c), (e) and (f).
There are also a number of aggravating factors relevant to the consideration of the nature and seriousness of the applicant’s offending which the Tribunal is obliged to take into account.
First, the applicant has provided false information to the department by not disclosing prior criminal offending.[144] When the applicant returned to Australia on two occasions in 2014 he filled out incoming passenger cards on which he falsely denied having any criminal convictions.[145]
[144] Ibid, paragraph 13.1.1(1)(g).
[145] G2, folio 106 – 107.
Second, the Direction compels a decision maker to examine whether the non-citizen has re-offended since being formally warned, in writing, about the consequences of further offending in terms of that non-citizen’s migration status.[146] This factor is clearly not favourable to the applicant. He was indeed warned about the adverse consequences to his migration status arising from his offending.
[146] The Direction, paragraph 13.1.1(1)(h).
By letter dated 30 August 2006, the Minister for Immigration and Multicultural Affairs (as he or she was then known) notified the applicant that the visa authorising his continued stay in Australia could be liable for cancellation on character grounds. He was given the benefit of the doubt on that occasion, while at the same time, the Minister made his/her position abundantly clear :
“Registered Post
30 August 2006
Dear Mr Francis IKUPU
NOTICE OF DECISION NOT TO CANCEL VISA UNDER SECTION 501 OF THE MIGRATION ACT 1958
On 12 July 2006, the Department of Immigration and Multicultural Affairs notified you that visa may be liable for cancellation on character grounds under section 501 of the Migration Act 1958. You responded to this notice with a written submission dated 16 August 2006.
You have not satisfied the Delegate of the Minister of Immigration and Multicultural Affairs that you pass the character test, but the Delegate has decided NOT to exercise his discretion under subsection 501(2) of the Migration Act 1958 to cancel your visa. Instead you are to be WARNED that a fresh assessment will be made with a view to considering cancellation of your visa if you are to be convicted of any further offences.
Please note that cancellation of your visa may be reconsidered in the event of further or fresh information coming to notice. Your visa may also be cancelled in the event of your incurring a liability for cancellation on new or different grounds.
Would you please acknowledge receipt of this WARNING by signing the statement on the attached duplicate copy of this letter and returning it to me?
Yours sincerely
[name redacted]
Case Officer
Character Section
Department of Immigration and Multicultural Affairs”[147]
[emphasis in original]
[147] G2, folio 103 - 104

This letter was forwarded by registered post to the applicant. We are satisfied the applicant received this letter of warning. There is no contention that he did not understand its contents.
Despite receiving this letter, the applicant continued to offend, and he was dealt with by lawful authority on:
·5 March 2007;
·6 March 2007;
·14 September 2010;
·2 May 2011;
·13 May 2013;
·16 July 2016;
·1 December 2017; and
·21 September 2018.
The content and terms of the letter of warning issued by the Minister to the applicant in August 2006 could not have been clearer. The reality that the applicant has ignored a duly issued warning by the Minister about the effect of any continued offending on his migration status in this country is confirmatory of the very serious nature of his subsequent conduct.
He was given an opportunity – in the form of a written warning - to modify and ameliorate his conduct. He has failed to do so and, indeed, re-offended on multiple occasions after receiving that warning. This aggravates the gravity of the offending for the purposes of considering whether revocation is appropriate.
The applicant’s offending is not at the most serious end of the spectrum but its nature and its consistency weighs heavily against revocation of the cancellation decision. The applicant has never met the expectation that non-citizens will be law abiding and will respect important institutions.[148] The nature and seriousness of his past offending is sufficiently serious that it weighs against any decision to revoke the cancellation, but it is not so serious that it could not be outweighed by other factors.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
[148] The Direction, principle 6.3(1).
Paragraph 13.1.2(1) of the Direction provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires the Tribunal to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires the Tribunal to consider 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 reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any assessment of the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct, can be properly informed by the nature of his offending apparent in his criminal history to date.

The Tribunal is mindful of the provision in the Direction stipulating that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.[149] Given the applicant’s offending history, it is likely that if the applicant engaged in criminal or serious conduct in the future, it would take the form of harassing, intimidating and stalking his domestic and romantic partners. The conduct is likely to fall short of actual physical violence directed towards his partners, but the prospect of physical violence cannot be completely ruled out.
[149] The Direction, paragraph 9.1.2(1).
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The applicant’s long history of aggressive conduct towards domestic partners and his history of disregard for law and law enforcement suggest that there is a very strong likelihood that the applicant will engage in the kind of criminal and serious conduct which has got him into trouble to date. The applicant suggests that there is no chance that he will re-offend and that he has learned his lesson.[150] However, he expressed very similar sentiments in 2006 when his visa was under threat and yet continued to offend after his release from prison. In these circumstances it is difficult to accept such a submission.
[150] Exhibit 3; See also Transcript of Proceedings, 24 July 2019, 29 – 30.
The evidence strongly suggests that the applicant is incapable of accepting the boundaries requested of him by domestic partners and imposed upon him by the law. He shows up at properties when he is not welcome. He refuses to leave when asked. There have been occasions when partners have indicated that they do not want to have anything to do with him and yet he has refused to accept that decision. The applicant’s conduct in the 6 months before he was incarcerated was consistent with a person who will succumb to his own internal urgings regardless of the requirements of the law or the desires of those with whom he is in a relationship. This pattern of behaviour supports the conclusion that it is most unlikely that he will behave any differently if returned to the Australian community.
The only new development which could support a more optimistic assessment is the applicant’s claim that he has given up alcohol since his incarceration. He claims not to drink alcohol in Villawood, notwithstanding its illicit availability, and asserts that his heart medication has diminished his desire to consume it.[151]
[151] Transcript of Proceedings, 24 July 2019, 31 – 32; Transcript of Proceedings, 25 July 2019, 80.
If the applicant had any real insight into his problems with alcohol these claims might be able to be given more credence. However, the applicant has a history of minimising the problem that he has with alcohol and suggesting that he has the issue under control when it is clear that he does not. For example, the pre-sentence report prepared in relation to the applicant on 21 September 2018 included the following:
Mr Ikupu reported a history of problematic alcohol use which is evidenced in the nature of his previous convictions. He claimed to have stopped using alcohol at problematic levels independently sometime in March 2017.[152]
[152] Exhibit 10, folio 118.
The police reports of the alcohol fuelled incident in January 2018 confirm that this self-assessment was wildly inconsistent with the reality.
In these circumstances, we are satisfied that there is a strong likelihood of the applicant re-offending. There seems a very convincing likelihood that he will again offend in the realm of his domestic relationships. Of particular concern is the lack of any convincing and independent evidence that the factors which give rise to his propensity to offend have been identified and been the subject of remedial management or control.
In these circumstances, we are satisfied that there is a very strong likelihood that the applicant will engage in serious conduct in the form of harassing, intimidating and stalking his domestic partners and criminal offences as a consequence of using carriage services to intimidate and harass. In addition we expect that he will breach family violence orders taken out by domestic partners to protect themselves from the conduct.
Conclusion: Primary Consideration A
As noted above, the applicant’s offending is not at the most serious end of the spectrum. However, the applicant has never met the expectation that a non-citizen will be law abiding and will respect important institutions[153] and the Tribunal considers it to be extremely likely that the applicant will re-engage in the same kind of conduct which led to his incarceration in 2018.
[153] The Direction, principle 6.3(1).
The nature and seriousness of his past offending is sufficiently serious that it weighs against any decision to revoke the cancellation, but is not so serious that it could not be outweighed by other factors. The likelihood of further offending weighs heavily against a revocation of the cancellation. The Tribunal considers it very likely that if the applicant is released into the Australian community, members of the community will be the subject of - at the very least - serious conduct (as defined in the Direction) and in all probability criminal conduct of some kind.
In light of these conclusions, any decision to revoke the cancellation would involve acceptance by the Tribunal that the applicant’s high likelihood of engaging in serious conduct is outweighed by other factors. Primary Consideration A weighs in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by the cancellation of the applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors comprise:
(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.
There are three children whose interests the Tribunal must have regard to in the applicant’s case, namely I.I, L.L and M.L. Because of the factual similarities in the relationships, it is convenient to deal with L.L and M.L together, but in doing so we have given each child’s best interest separate consideration.
Biological Son (I.I)
I.I is the applicant’s biological child. The applicant has known him since birth. The applicant was in a relationship with I.I’s mother, C.H, when I.I was born in December 2008. By 2010 that relationship had broken down. While it is difficult to make precise findings, it would appear that the applicant did have regular contact with I.I perhaps including every second weekend and part of the school holidays from 2010 to 2015. However, contact was limited after 2015. I.I’s mother moved interstate in 2015 for 8 months and in that time the applicant saw his son only twice.[154] By 2016, C.H was back in Canberra and the applicant re-engaged with I.I. The extent of that engagement is unclear but it included at least one weekend away with the applicant. That trip away however occurred in a context where, on I.I’s mother’s assessment ‘the applicant had not seen their son as often recently’.
[154] Transcript of Proceedings, 25 July 2019, 96 – 97.
By the end of 2017, when the applicant commenced a relationship with D.L, I.Is mother cut off all contact between the applicant and his son. From the beginning of 2017 until the applicant’s incarceration in July 2018, it appears that he only saw I.I on three occasions and these were short visits while I.I was at school.
The applicant obviously has a continued interest in his son’s progress as he has access to copies of his school reports and he professes a strong desire to be a part of I.I’s life to help him and provide guidance. There is also evidence that the applicant assisted his son to deal with a bullying issue at school. The Tribunal is conscious that it is a significant matter to remove a father from any prospect of direct contact with his biological son.
However, the applicant’s relationship with I.I is characterised by long periods of absence and only limited direct contact. There does not appear to be much prospect of that changing if the applicant is returned to the community. The evidence indicates that I.I’s mother does not want the applicant to have contact with I.I while he is in a relationship with D.L[155] and she (C.H) has been effective in preventing that contact since at least the start of 2017.[156] The applicant appears determined to pursue a relationship with D.L. Accordingly, if he remains in Australia the applicant is unlikely to have a significant parental role in I.I’s life.
[155] G2, folio 95.
[156] G2, folio 96.
Given his history, it is not the case that the applicant is likely to play a positive role in I.I’s life, but the Tribunal has not seen any evidence which suggests that the applicant’s conduct has had any negative impact on I.I.
As I.I has been separated from the applicant for extended periods previously, it is unlikely that the applicant’s removal from Australia would have any immediate effect on I.I. However, the Tribunal does not discount the significance of separating a child from their biological father. That concern is however ameliorated to some degree by the fact that I.I is looked after by his mother who appears to have been his primary carer since he was born.[157]
[157] See The Direction, paragraph 13.2(4)(e).
The applicant does report some very positive interactions with his son[158] and it seems reasonable to infer that if asked, I.I would prefer to have his father in the country rather than living in PNG, but I.I did not provide any evidence of any kind to assist the Tribunal. Given the apparently strained relationship between the applicant and I.I’s mother, nothing negative is inferred from the absence of evidence. There is also no suggestion that the applicant has abused or neglected I.I or inflicted trauma on I.I as a result of his conduct.[159]
[158] G2, folio 113-114.
[159] See The Direction, paragraph 13.2(4)(g) and (h)..
Revocation would be in I.I’s best interests, in the sense that it is, broadly speaking, preferable for him to have physical access to his biological father. But a decision not to revoke is unlikely to harm his interests in any significant way.
Step Children (L.L and M.L)
The impact of the removal of the applicant from Australia on L.L and M.L will be insignificant. L.L and M.L are not the biological children of the applicant. They are the biological children of D.L. In the time that the applicant has been involved with D.L the role he has had in the children’s lives appears to have been minimal.
At the commencement of the applicant’s relationship with D.L there may have been some two-day visits each week to D.L’s home and the applicant may have interacted with them then. But that contact was short lived. D.L no longer has any form of contact with her boys and the applicant’s contact with them since early 2017 appears to have been restricted to an incident which is best characterised as stalking when the applicant drove past the children’s primary school with D.L while their father was collecting them from school. The contact resulted in a complaint being made to the police and the children’s father feeling concerned for his safety.[160]
[160] Exhibit 9 folio 87.
Accordingly, the following conclusions can be drawn:
(a)The relationship between the step-children and the applicant was short and insubstantial;
(b)The applicant is unlikely to play a positive parental role in relation to the step-children in the future;
(c)Given the stalking incident, the applicant’s future conduct could well have a negative impact on the step-children;
(d)The separation from the applicant would not have an impact on the step-children;
(e)The step-children’s biological father already fulfils the parenting role;
(f)The views of the step-children on the question of the applicant’s removal to PNG are unknown; and
(g)There is no evidence to suggest that the applicant has abused, neglected or traumatised the step-children.
Given how slight the relationship between L.L and M.L and the applicant is, there is nothing to suggest that revocation would be in the step-children’s best interests.
Conclusion: Primary Consideration B
As the applicant’s relationship with his biological son has been characterised by significant periods of limited or no contact, the Tribunal is satisfied that removal of the applicant from Australia to PNG would not have a significant negative impact on the interests of I.I. However, the harm resulting from physically removing a father from a child’s life means that revocation would be in the best interests of I.I.
While the fact that the applicant has some contact with his biological son and this could continue if he were to remain in Australia, this factor is of limited weight in support of a decision to revoke the cancellation.
The interests of M.L and L.L do not alter that assessment in any way given the very slight nature of the connection between them and the applicant.
Accordingly, to the extent this Primary Consideration B weighs in favour of revocation, it does not outweigh the weight attributable to Primary Consideration A in favour of non-revocation.
Primary Consideration C: Expectations of the Australian Community
We turn now to the final primary consideration: the expectations of the Australian community.
In approaching this primary consideration, the Tribunal notes the following matters which are relevant to applying this consideration to the applicant.
(a)The expectations of the Australian Community are not matters for evidence;[161]
(b)Decision makers are bound to have due regard to the Government’s view regarding community values, standards and expectations as set out in the Direction;[162]
(c)Community expectations will not always favour non-revocation;[163]
(d)The principles in the Directions ‘reflect community values with respect to determining whether the risk of future harm from a non-citizen is unacceptable’;[164]
(e)Being able to come to or remain in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding and will respect important institutions such as Australia’s law enforcement framework and will not cause or threaten harm to individuals or the Australian community;[165]
(f)Australia has low tolerance for 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 and from a very young age.[166]
[161] Uelese v Minister for Immigration and Border Protection [2016] FCA 348
[162] See, for example the Direction, paragraph 6.2 and 6.3; DKXY v Minister for Home Affairs [2019] FCA 495 at [31].
[163] DKXY v Minister for Home Affairs [2019] FCA 495; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466.
[164] The Direction, paragraph 6.2(1).
[165] Ibid, paragraph 6.3(1).
[166] Ibid, paragraph 6.3(5).

The applicant has been in Australia the whole of his adult life. For over 24 years he has been part of the Australian community. Accordingly a higher level of tolerance of criminal and serious conduct is expected by the Australian community when considering whether to revoke the cancellation. That factor is, however, significantly off-set by the expectation that non-citizens are law abiding and will respect important institutions such as Australia’s law enforcement framework.
The applicant has consistently engaged in criminal and serious conduct since 1997. He has, on a number of occasions, breached family violence orders (or their equivalent), undertakings to keep the peace, bail conditions and good behaviour undertakings. There is very little prospect that his offending will cease or that he will show more respect for the law enforcement framework.
The Tribunal accepts that the applicant’s lengthy time in the Australian community means that a higher level of tolerance is afforded to his criminal offending and serious conduct. However, his prolonged history of offending and its inherent pattern of disrespect for Australian lawful authority leads us to the conclusion that the expectations of the Australian community favour non-revocation of the visa cancellation.
Other Considerations
It is necessary to consider the Other Considerations listed at paragraph 14(1) of the Direction. We have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). We address each in turn.
(a) International non-refoulement obligations
There are no non-refoulement obligations that are relevant to the applicant disclosed either in the material or during the course of the hearing. Consideration (a) is not relevant in this case.
(b) Strength, nature and duration of ties
The applicant has resided in Australia since arriving here as a 15 year old. He is now 40 years of age and has spent the last 24-25 years of his life here. While Principle 6.3(5) provides that Australia may afford a higher level of tolerance for criminal conduct committed by a non-citizen who has lived in Australia for most of their life, the applicant commenced offending in this country just over two years following his arrival.
The applicant does have family in Australia, specifically, Canberra. He has a nine year old child from a previous relationship. That child’s mother also resides in Australia, in the Canberra area. He also has a mother and two brothers who reside in Australia. His step-father also lives here and the applicant gave evidence about remaining in contact with his step-father.
There are readily made concessions by the Respondent that:
·the applicant has resided in Australia for approximately 25 years;
·the applicant has made some contribution to the Australian community;
·the applicant has a number of family members who reside in Australia and that he thus has family ties to Australia.
The Tribunal is of the view that each of these concessions is well made.
The Tribunal however, does not accept the applicant’s contention that one of his main ties – if not the main tie – to this country is his relationship with D.L and his asserted desire to remain here because of his concern about her safety and mental health. In his Personal Circumstances Form, the applicant records his relationship status as “Currently Married.”[167] According to the applicant, D.L’s overall condition is such that she requires constant support and care and that such responsibility necessarily devolves to him. According to the applicant’s evidence, his wife’s diagnosed post traumatic distress disorder (PTSD) and Borderline Personality Disorder (BPD) as well as her symptoms of depression and anxiety have seen the child protection authorities intervene and remove her nine and 10 year old children from her care. According to his evidence, the applicant wants to resume his relationship with his spouse and play a role in her ongoing care.
[167] G2, folio 74-86.
The applicant’s subjective assessment of the relationship and his significance to D.L does not square with most of what is known about his relationship with D.L including the relevant sentencing remarks and D.L’s own evidence. At the sentencing hearing that took place in September 2018, the prosecutor submitted:
“MS SUTTON: In January 2017, [the spouse] and Francis Ikupu herein referred to as the defendant, commenced a relationship. During their relationship, [the spouse] and the defendant resided together in [suburb redacted] in the ACT. The relationship was on again and off again. In mid-May 2018, the relationship ceased with the defendant moving out of the residence. [The spouse] continued to reside at that residence with her father.”[168]
[our underlining]
[168] Ibid, folio 59, lines 31-36
Also at the sentencing hearing on 21 September 2018, the applicant’s legal representative submitted:
“MS BUCKLEY: …he tells me that he stopped working as a result of the breakup of his marriage. He says that that was a very difficult time for him, but when he was released from custody, he would like to go back to working in the construction industry.
Your Honour, in relation to his current thoughts, he says he would like to move forward with his life. He can only explain his behaviour in relation to the offences before the court in that he was distraught over the breakdown of his marriage.[169]

[our underlining]
[169] Ibid, folio 64, lines 23-32.
The remarks make clear that the marital relationship is over.
Further, the material before the Tribunal contains two items of evidence directly from D.L. First, there is the email she sent directly to the Minister on 15 July 2018. The terms of that email are worth reproducing:
Dear Peter
I am writing this email in the hope that it will be read and action can be taken. this is in regard to Francis Michael Ikupu. I live in Canberra. Last year I entered into a relationship with frank (sic), it was very abusive at which I suffered seriously and ended up with mental illness and now on medication. I have been nonstop harassed, stalked and abused by him since trying to leave months ago. The police have arrested him many times and he has many times breached FVO’s. I fear for my life if he gets out and I live with my very I’ll (sic) father. My kids don’t stay with me because I fear for my safety. He was threatened to be deported back in 2007. Since then, he has served time in two other jails and committed other offences. He is now locked up till July 31^st. I am in fear they will let him out. I can’t sleep dreading up and coming court (sic). Since he is not a citizen can u (sic) please look into having him deported as he is a threat to the community.
Thank you[170]
[170] G10, folio 342.
On 16 July 2019, D.L forwarded the following email to the applicant, presumably for the information of the Tribunal:
From:              [email address of spouse redacted]
Sent:               Tue, Jul 16 2019 7:15pm
Subject:          Francis Michael Ikupu
To:                  [email address of applicant redacted]
To whom it may concern,
I am Francis ikupu’s ex-wife [D.L].Me and Frank are currently in contact and provide emotional support to each other due to our health conditions.
Kind regards
Importantly, the email quoted in paragraph [148] above contrasts with the applicant’s evidence given at the hearing. He told the Tribunal hearing that as recently as the morning of its commencement, he had been in contact with D.L and that she was apparently receptive to an electronic dialogue with him.
Two things can be said about that evidence. First, with reference to the abovementioned email from D.L dated 16 July 2019, it goes no further than to evince an intention that she and the applicant will “provide emotional support to each other”. That does not equate to a resumption of a domestic, marital relationship. Second, the evidence falls well short of supporting the applicant’s claims that he needs to remain in the country to support and care for her. The applicant’s claims, in this regard, are difficult to sustain and lacking in credibility.
The applicant’s relationship with D.L is fragile and mercurial. While the applicant has put a great deal of store on the resumption of contact with her over the internet since he has been in detention, the reality of the relationship is that D.L spent most of the first half of 2018 ensuring that the applicant was out of her house and out of her life. There is no evidence to suggest that the applicant provided any useful assistance to her when he was out in the community nor that she would accept any more direct assistance from him were he returned to the community. The family tie which the applicant has identified as the most significant in terms of justifying his continued presence in Australia, is in fact weak and dysfunctional.
We thus do not allocate any weight (pursuant to Consideration (b)) to the applicant’s ties with his spouse in circumstances where the evidence establishes that the relationship ended in 2018 and D.L took considerable measures to ensure that it did not resume. Nothing said at the hearing persuades us that the relationship will be resumed to the level the applicant suggests (or at all) were he to be returned to the Australian community.
Further, no weight can be allocated to the applicant’s ties to step-children in circumstances where both of those children have been removed from D.L’s care and prior to that event, the applicant had limited exposure to them.
As discussed above, the applicant has a biological child from a previous relationship. In his Personal Circumstances Form, the applicant was asked to describe his relationship with I.I including when it began, how often he sees I.I and the role that he plays in the life of that biological child. He said these things:
“[I.I] is my biological son and I have being [sic] with him since birth. Although his mother and I ended our relationship I would have regular weekend visits from ages 3 until mid 2017. I have always maintained a positive role model image in my sons [sic] presence providing encouragement, support and discipline with all the love and care. I would help with his homework and taught him how to ride a bike.”[171]
[171] Ibid, G2, page 81.
This submission overstates the relationship in a number of ways. It leaves out altogether the period when I.I’s mother moved him interstate and the applicant had very limited contact and does not discuss the very limited contact in 2017/18.
The applicant also spoke about the impact that cancellation of his visa (or the non-revocation of the cancellation decision) would have, or has had, on the child(ren). He said:
“Our children are facing complications because the last contact we had was before Christmas 2017. We’re going through a custody battle for entitlement for our kids and its deeply impacted my wife’s health. [I.I] indicated he would cry and say ‘I want to go to Dads’, June 2017.”[172]
[172] Ibid. Note: in this response in his Personal Circumstances Form, the applicant is speaking in the plural, that is, on behalf of himself, his spouse and the three children relevant to this decision. Hence the reference to “Our children…” etc.
At the hearing, the applicant readily acknowledged his relationship with the mother of his biological child was at an end. He spoke of having “resolved” the issues of his proposed parenting role in the life of the biological child at a previous mediation. Despite that, there is no evidence of any parenting plan (or equivalent) or family law consent orders in the material. As noted above, the relationship between the applicant and I.I’s mother does not seem conducive to the applicant playing any meaningful role in that child’s life. While a measure of weight can, pursuant to this Consideration (b), be allocated to the applicant’s biological child in favour of revocation, such weight is limited because (1) the applicant is estranged from the biological child’s mother; (2) there is no parenting plan and/or family law consent orders in place regarding that biological child; and (3) the applicant has had only very limited contact with the biological child since 2017, and, patchy contact in the years prior to that. Although the applicant’s tie to I.I is long and, as his biological father, important, the relationship itself is not strong.
The applicant’s other ties to the Australian community are similarly weak. His mother is concerned about him but the evidence suggests he rarely sees her.[173] Only one of the applicant’s brothers showed any support for him and his email in support was, on its face, luke-warm. For example, the brother uses phrases such as ‘Francis has been a fairly decent person’ and ‘[I.I] might need his [the applicant’s] guidance’.[174] This is hardly evidence of a supportive and loving brotherly relationship.
[173] Transcript of Proceedings, 24 July 2019, 62.
[174] Exhibit 5.
The applicant called a friend to give evidence who lived in Perth and who has hardly seen the applicant in recent years. The applicant also called an employer, who had engaged him for ‘a few months’ to give evidence. The only other support the applicant received comes in the form of a letter from a former employer, C.E.[175] The ties with sporting clubs which the applicant mentions appear to lie in the distant past.
[175] G2, folio 93.
While far from convincing, there is at least a slight measure of strength and some durability in the applicant’s ties to Australia. Consistent with Paragraph 14.2(1)(b) of the Direction, those ties and thus this Consideration (b) favours revocation.
However, that finding must be tempered by the factors appearing at Paragraphs 14.2(1)(a)(i) and (ii) of the Direction. First, with reference to Paragraph 14.2(1)(a)(i) of the Direction, the Applicant arrived here in January 1995 and began offending in the first half of 1997. Thus, less weight should be attributed to the length of time the applicant has lived in Australia, in circumstances where the applicant began offending so soon after arriving here. Second, with reference to paragraph 14.2(1)(a)(ii) of the Direction, to the extent it can be said the applicant has spent time contributing positively to the Australian community, that time is either outweighed or at least significantly counter-balanced by his serious criminal conduct during the corresponding period. This is evidenced by his 23 sentencing episodes involving the commission of some 50 individual offences.
While this Consideration (b) may weigh in favour of revocation, it is of limited weight only.
(c) Impact on Australian business interests
This consideration is not relevant in determining this application.
(d) Impact on victims
D.L is the most recent victim of the applicant’s crimes. She made her views clear in her email dated 15 July 2018 stating ‘I fear for my life if he gets out and I live with my very I’ll (sic) father’.[176] Her current conduct suggests her views have softened to a degree and there is evidence that her father no longer lives with her. However, it is difficult to predict how she will react if the applicant were to be returned to the Australian community. She has not provided any evidence which suggests she has resiled from her assessment of July 2018 (the email of 16 July 2019 which she prepared for the Tribunal does not deal with the issue at all) and she had never agreed to a lifting of the restrictions on the applicant approaching her[177]. It is, in the Tribunal’s assessment, likely that the applicant will renew efforts to pursue a relationship with D.L if he is returned to the Australian community and there is a likelihood that D.L will suffer adverse impacts were this to occur. This consideration weighs against the applicant, but not strongly.
[176] G10, folio 342.
[177] The Tribunal notes that she did agree to convert the court orders to an undertaking, but an undertaking in very restrictive terms – Exhibit 2C.
(e) Extent of impediments if removed
Paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
In assessing the applicant by reference to the criteria set out in Paragraph 14.5(1)(a),(b) and (c), it is worth noting that there are some relevant matters which the Tribunal is satisfied are not impediments.
The Tribunal is satisfied that there are no substantive language barriers which will impede the applicant from establishing himself and maintaining basic living standards in PNG. He lived in that country until he was 15 years of age. He speaks both English and Tok Pisin which are both prevalent languages there.
The applicant’s age should not be an impediment either. He is 40 years of age. He is mature enough to travel and live independently and he has many years of working life ahead of him. His age also means he has significant work experience. As mentioned earlier, the applicant has a work history in this country, having secured remunerative employment on a regular basis from 2007 until 2018 in diverse roles such as “shop attendant” at a hotel, labouring work and as a maintenance officer in a remedial health business.[178] This should assist him to find work in PNG.
[178] G2, folio 84.
However, there do appear to be other impediments to the applicant establishing himself and maintaining a basic living standard on his return to PNG.
No evidence was led by either party about what social, medical and/or economic support would be available to the applicant if he was returned to PNG. Accordingly there is no basis on which the Tribunal could conclude that the applicant will receive any special support to assist him to establish himself in a completely new country.
In relation to cultural barriers the evidence shows that the applicant has maintained a connection with the culture in PNG while he has been in Australia.[179] However the applicant claims that because of what he refers to as the Wantok System – where a job is gained through family and friends – he will be unable to acquire a job and is therefore ‘without any chance of survival’.[180] It is very difficult to assess this claim. The applicant led no specific evidence about the Wantok System and the difficulties he would face so there is nothing more than his assertion which the Tribunal has to consider. The respondent did not deal with the claims in any substantive way, accepting only that ‘if returned to Papua New Guinea the applicant would suffer some emotional hardship’.[181]
[179] G8, folio 324.
[180] G2, folio 114.
[181] Exhibit 9, paragraph 50.
Given the dearth of evidence in relation to the issue, the Tribunal has proceeded on the basis that the applicant will experience difficulty in gaining employment in PNG as a consequence of his lack of family and friendship connections. As an impediment to employment it is likely to be significant, but given his skills and work history, the Tribunal is not willing to proceed on the basis that the applicant has no chance of finding work if returned to PNG.
There is also a question as to whether the applicant’s health amounts to an impediment to him establishing himself in PNG and maintaining basic living standards. In his submission to the Department, the applicant identified arthritis and sciatica as his main health problems.[182] At hearing, the evidence did not suggest these were major problems.[183]
[182] G2, folio 97.
[183] Transcript of Proceedings, 25 July 2019, 80 – 83.
In an email dated 30 May 2019,[184] he contends:
·that he has experienced “…my first Gout flare up upon my big toe…”;
·“…on the 29 April I suffered Atrial Fibrillation where…around midnight when a sharp pain ran up the back of my neck as my vision began to blur and I became nauseous…”
·“I felt myself struggling to remain on my feet… I literally ‘blacked out’…”;
·“Again, just very recently on Thursday the 23nd [sic] of May at around 11:30pm at night, I suffered another Atrial Fibrillation attack and collapsed…”;
·“I have suffered detrimental health conditions due to the predicament I am in…”;
·“…never before in my life have I experienced such health risks emotionally, psychologically and physically.”;
·“[T]herefore I believe I am in no shape or form a threat to anyone.”
[184] G16, folio 353.

For these symptoms, the applicant was transported to the Liverpool Hospital and eventually came under the care of Dr Tuan Nguyen. The evidence before the Tribunal contains a report from the Liverpool Hospital[185] which is informative in a couple of respects. First, it contains a concise summary of the applicant’s reported symptoms upon presentation:
[185] G16, folio 356-360.
“ADMISSION SUMMARY
Presenting Problems
Dizziness
PRINCIPAL DIAGNOSIS
Atrial fibrillation
Complications and Co-morbidities: new or requiring changes to treatment
Atrial fibrillation
Gout
Hypotension
Sleep apnoea
Nicotine dependence
Summary of Progress
Dear Doctor,
Thank you for seeing Francis Ikupu who presented to Liverpool Hospital with syncope on 24.05.19
Francis Ikupu was under the care of Dr Tuan Nguyen
Below is a summary of progress during their admission:
Issues:
1.    Atrial Fibrillation
…
2.    Nicotine dependency
-Current smoker
-Education given
-GP to continue smoking cessation advice
3.    Asymptomatic hypotension – Episode of SBP to 88 while NBN for procedure
-Responded well to IV fluid bolus
4.    Gout
-Acute flare up of gout during admission
-Uric acid 0.38
Given STAT dose of 1mg colchicine, then 00 microg daily for 3 days
5.    Sleep apnoea
-Patient reported snoring
-GP to refer to respiratory physicial for sleep study
Medications
Medications on admission:
…”[186]
[186] Ibid, folio 356-358.
Second, this report from the Liverpool Hospital contained a treatment plan:
“Plan
Patient discharged to Villawood Detention Centre
-Patient to use simple analgesia at home
-Patient to eat and drink as tolerated
-Patient to reduce caffiene [sic] intake as discussed
-Patient to cease smoking
-Patient to take Rivaroxaban for 6-8 weeks
Patient to follow up with GP in 4-5 days
-GP to assess for clinical improvement
-GP to provide scripts for all medications
-GP to monitor HR and BP, reduce dose of flecanide accordingly
-GP to chase formal for TTE, TOE and CTCA imaging scan…
-GP to refer to respiratory physician for sleep study
-GP to monitor for resolution of gout
-GP to continue smoking cessation advice
-GP to write referral letter to see Dr Tuan Nguyen
Cardiology followup with DR Tuan Nguyen at Liverpool Hospital;
Date/Time: 1pm on 2^nd July
…
Patient to represent to Emergency if any deterioration, worsening of condition or new problems arise
…
Liverpool Hospital”[187]
[187] Ibid, folio 358.
The prescribed medications which the applicant was taking at the time of discharge are noted at paragraph [77] above.
The applicant was eventually referred to a respiratory physician, Dr Corinna Pan, for a sleep study. Dr Pan’s report appears in the material.[188] Her report seems preliminary and largely inconclusive:
“We will see him again after he has had a sleep study. Additionally, I explained to him at length about the association between current atrial fibrillation and severe untreated sleep apnoea, hence the importance of ruling that out.”
[188] Exhibit 7.
Based on this material, the Tribunal accepts that the applicant has a number of conditions which have required treatment while he has been in immigration detention. In relation to the minor conditions, gout and acid reflux, neither constitute impairments to the applicant establishing himself in PNG. It is common knowledge that gout is readily treatable (and avoidable) and should not impair the applicant’s health if he is returned to PNG. Acid reflux is not a condition which impairs functioning in any material way.
The applicant is also on medication to treat psychiatric conditions. The Tribunal does not have any evidence as to whether this medication is required long term or is the result of mood changes while the applicant has been incarcerated. In the absence of evidence about the reasons for the medications, the Tribunal is not satisfied that it should take into account as an impairment the possibility that the applicant has a psychiatric condition requiring ongoing treatment if he were returned to PNG.
The most significant condition from which the applicant suffers is atrial fibrillation. The applicant has experienced atrial fibrillation symptoms which have resulted in admission to hospital. His prognosis and allocated treatment plan do not suggest significant ongoing concern from medical practitioners about the condition.
It is probable that if returned to PNG, the applicant will be able to follow his allocated treatment plan consisting of “…use simple analgesia at home…”, “…eat and drink as tolerated…”, “reduce caffeine intake…”, “…cease smoking…”, “… take rivaroxaban for 6-8 weeks…”. [189]
[189] G16, folio 358.
In light of the available evidence, the Tribunal is not satisfied that the applicant’s atrial fibrillation would amount to an impediment to the applicant establishing himself in PNG and maintaining a basic standard of living. The Tribunal also notes that in his submission dated 17 February 2019 the applicant indicated he suffered from sciatica and arthritis. In light of the evidence that the applicant believed he could resume labouring work if he were released back into the Australian community, the Tribunal was not satisfied that these conditions amounted to a serious impediment to the applicant undertaking work for which he was qualified.
The Tribunal accepts that a person who is sent back to a country like PNG where he has no family support or friendship networks will experience difficulty in establishing themselves and maintaining basic standards of living. Consequently, the future for the applicant on return is potentially very bleak. The Tribunal cannot be certain that he will find the means to support himself in PNG. However, the applicant has a number of factors in his favour which suggest that notwithstanding the impediments identified above, he will be able to make a life for himself in PNG. First, he understands two of the important languages that are spoken in PNG. Second, he was exposed to PNG culture as a child and has maintained a connection with the culture in his time in Australia. Third, he has a proven ability to work, including as a labourer and comes well recommended by an Australian employer. His health, although not perfect, is still good for a man who is 40 years old. In these circumstances it seems probable that he will eventually be able to establish himself and maintain basic living standards if he is returned to PNG.
Accordingly, this Consideration (e), on balance, weighs moderately in favour of revocation.
Summary of findings – Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant.
·Strength nature and duration of ties: is of limited weight in favour of revocation.
·Impact on Australian business interests: not relevant.
·Impact on victims: weighs in favour of non-revocation, but not strongly.
·Extent of impediments if removed: weighs moderately in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the power to revoke the applicant’s visa: either the applicant must be found to pass the character test, or the Tribunal must be satisfied that there is another reason why the original decision should be revoked. In exercising the power, the Tribunal must comply with the Direction. As the Tribunal has noted above, the applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before us, the Tribunal finds that there is not another reason for the Tribunal to revoke the cancellation of the applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Migration Act to revoke the mandatory visa cancellation decision, the Tribunal has complied with the Direction.
Of critical significance is the convincing likelihood of the applicant re-offending. The Tribunal is satisfied that if the cancellation decision is not maintained and the applicant is returned to the community, it is very likely that he will commit offences similar or identical to the offences which led to his incarceration in 2018. Those offences which involved the harassment, intimidation and stalking of domestic partners are serious and members of the Australian community should be protected from them.
In reaching this view, the Tribunal fully recognises that it is a significant step to remove the applicant from Australia and return him to an uncertain future in PNG, a country he has not called home since 1995. The Tribunal is equally conscious that in removing the applicant it is cutting him off from any real prospect of a close relationship with his biological son. However, in a context where there is little prospect of that relationship being maintained even if the applicant remained in Australia, it was not sufficient to outweigh the important consideration of protecting the Australian community. A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the applicant’s visa.
Consequently, the Tribunal has decided not to exercise the discretion to revoke the cancellation of the applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 198 (one hundred and ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan and Senior Member Theodore Tavoularis

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Associate
Dated: 13 August 2019

Date(s) of hearing: 24 and 25 July 2019

Applicant: In person

Advocate for the Respondent: Mr Adam Ray (Solicitor)

Solicitors for the Respondent: Clayton Utz

Date(s) of hearing:	24 and 25 July 2019
Applicant:	In person
Advocate for the Respondent:	Mr Adam Ray (Solicitor)
Solicitors for the Respondent:	Clayton Utz