JMJN and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1787
•12 September 2025
JMJN and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1787 (12 September 2025)
Applicant/s: JMJN
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4078
Tribunal:Senior Member T Tavoularis
Place:Brisbane
Date:12 September 2025
Decision:Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 11 June 2025 to not revoke the mandatory cancellation of the Applicant’s Class BT Subclass 802 Child visa.
........................SGD........................
Senior Member T Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BT Subclass 802 Child visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – primary and other considerations – protection of the Australian community from criminal or other serious conduct – whether conduct engaged in constituted family violence – the strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – further other consideration involving mental health stigma – impact on Australian business interests – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)Cases
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison v Minister for Immigration and Citizenship (2009) 106 ALD 666 [63]
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Direction No 110 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Migration Regulations 1994 (Cth)
Department of Foreign Affairs and Trade – Country Information Report - PNGStatement of Reasons
INTRODUCTION
The Applicant compiled a series of convictions in Australia since arriving here as a 14-year-old in February 2013. Consequently, his Class BT Subclass 802 Child visa[1] was mandatorily cancelled on 21 August 2024 pursuant to s 501(3A) of the Migration Act 1958 (Cth).[2] In a decision made on 11 June 2025[3], pursuant to s 501CA(4) of the Act, a delegate of the Respondent refused to revoke that mandatory cancellation decision. By application made to this Tribunal on 16 June 2025, the Applicant seeks the setting aside of the decision under review.
[1] Hereinafter referred to as “the visa”.
[2] Hereinafter referred to as “the Act”.
[3] Hereinafter referred to as “the decision under review”.
The hearing of the instant application proceeded before me via Microsoft Teams on 20, 21 and 22 August, 2025. In addition to the evidence of the Applicant, the hearing received oral evidence from five lay witnesses and one expert witness. The five lay witnesses comprised the Applicant’s mother, Ms JS, and four social contacts being Mr DL and his partner, Ms BW, plus Mr MG and Mr OH. The sole expert witness was the clinical psychologist, Dr Mala Ram.
This is an expedited application pursuant to s 500(6L)(c) of the Act. That section requires the Tribunal to make a decision in this application within the period of 84 days after the day on which the Applicant was notified of the decision under review. As mentioned earlier, the instant hearing ran for three days and concluded on 22 August 2025. The 84th day in this matter fell on 3 September 2025.
This left insufficient time for the preparation of detailed written reasons from the conclusion of the hearing to the occurrence of the 84th day. I therefore caused the Tribunal to make (and publish to the parties) a decision - in short form - on 3 September 2025 such as to meet the requirements of s 500(6L)(c) of the Act. Attached to these Reasons and marked “Annexure A” is a true and correct copy of that short-form decision.
Pursuant to the authority of Khalil v Minister for Home Affairs (2019) 271 FCR 326, I now publish my detailed written reasons within a reasonable time of my short form decision.[4]
[4] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–[48].
ISSUES
The issues before this Tribunal are:
·whether the Applicant passes the character test; and if not,
·is there another reason why the mandatory cancellation of his Visa should be revoked by this Tribunal?
Does the Applicant pass the character test?
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record. Pursuant to s 501(7)(c) of the Act, a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
In July 2024, a regional Local Court in New South Wales (“NSW”) sentenced the Applicant to an aggregate head custodial term of imprisonment of 20 months on respective convictions for Stalk/intimidate intend fear physical etc harm (domestic) (x1); Destroy or damage property (x2); and Assault occasioning actual bodily harm (DV) (x2). By the cumulative operation of ss 501(6)(a) and 501(7)(c) of the Act, I will find that the Applicant does not pass the character test which occurs by operation of law.[5] Consequently, the Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[5]Harrison v Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
Is there another reason why the mandatory cancellation of the Applicant’s Visa should be revoked?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa,[6] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction 110[7] has application.
[6] Pursuant to section 501CA(4) of the Act.
[7] Direction No 110 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA commenced on 21 June 2024. It replaces Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA. I will hereinafter refer to Direction 110 as “the Direction”.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
1)protection of the Australian community from criminal or other serious conduct;
2)whether the conduct engaged in constituted family violence;
3)the strength, nature and duration of ties to Australia; and
4)the best interests of minor children in Australia; and
5)expectations of the Australian community.
Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:
a)legal consequences of the decision;
b)extent of impediments if removed; and
c)impact on Australian business interests.
13.I move now to a consideration of each of those primary and other considerations as may be relevant to the instant facts.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
14.In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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
16.I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
17.Prior to assessing the nature and seriousness of the Applicant’s conduct, it is prudent to have at least some measure of understanding of the totality of his unlawful conduct by sentencing courts. Taken in its totality, his offending history appears to disclose the commission of 26 offences dealt with at 10 separate episodes. However, this would be to mis-read the offending history. This is because the five abovementioned five offences dealt with by a NSW regional Local Court in July 2024 were initially taken on appeal to a NSW regional District Court in October 2024.
18.The criminal history notes that each of the appeals for these five convictions were “withdrawn”. The full notation next to each of the five convictions taken on appeal to a regional NSW District Court in October 2024 is cast in these terms: “APPEAL WITHRAWN – CONFIRMED IMPRISONMENT (AGGREGATE) 20 MONTHS…”.[8]Given these appeals did not proceed to finalization, I will not take those five entries into consideration for present purposes. In turn, this means the totality of the Applicant’s offending history comprises convictions for 21 offences imposed at nine separate sentencing episodes.
[8] See R1, pp 38-39.
19.The nature of the Applicant’s conduct can be readily found to be very serious. The offending which attracted the imposition of an aggregate term of 20 month was plainly a crime of violence[9] which also involved violent offending against his former fiancée.[10] The Direction mandates that this type of conduct is viewed very seriously by the Australian Government and its community. That is how this Tribunal will characterize the Applicant’s conduct.
[9] Sub-paragraph 8.1.1(1)(a)(i).
[10] Sub-paragraphs 8.1.1(1)(a)(ii) and (iii).
20.For the sake of completeness, but not in any way changing my finding about the very serious nature of the Applicant’s offending, I will note that early in the criminal history there is reference to the two convictions for Obstruct public officer and one conviction for Assault Public Officer. These convictions fall within the auspices of sub-paragraph 8.1.1(1)(b)(ii) of the Direction as crimes committed against government representatives or officials due to the position they hold or in the performance of their duties. The Direction mandates that such conduct is considered by the Australian Government and its community to be serious.
21.The Applicant has convictions for 21 offences dealt with at nine separate sentencing episodes. He was first convicted in July 2019 and last convicted in July 2024. The commission of 21 offences across a roughly five year timeframe is frequent offending.[11] The conduct also betrays a convincing trend of increasing seriousness. That trend is demonstrated by a comparison between, on the one hand, the Applicant’s first three convictions for the offending particularised in the immediately preceding paragraph to, on the other hand, conduct convicted in July 2024 punished by an aggregate custodial term of 20 months.[12]
[11] Sub-paragraph 8.1.1(1)(e).
[12] Sub-paragraph 8.1.1(1)(e).
22.The Applicant’s conduct has manifested in a range of cumulative effects.[13] First, it has physically and emotionally traumatised its victims. The factual circumstances of the offending convicted in July 2024 cannot be read in ant other way. Second, it is demonstrative of a person yet to develop any modicum of respect for the laws and regulations governing the Australian community. This can be seen from his repeated convictions for breaching lawfully made written orders and/or oral directions compelling him to do or refrain from doing something.
[13] Sub-paragraph 8.1.1(1)(f).
23.Third, his convictions for driving while under the influence of alcohol and for driving while disqualified or suspended from doing so are indicative of a person who has little understanding of the laws and regulations governing the use of Australian carriageways. His drink-driving also had the very real potential for placing other road users at risk. Fourth, his convictions for destroying and damaging the property of others is demonstrative of a person who does not respect the rights of others to own, use and enjoy the property they have lawfully acquired. Fifth, the sheer nature and scope of the Applicant’s conduct has consumed more than its fair share of the Australian community’s law enforcement, judicial sentencing and public healthcare resources.
Conclusion about the nature and seriousness of the Applicant’s conduct
24.Four of the nine factors at paragraph 8.1.1(1) of the Direction are relevant to assessing the nature and seriousness of the Applicant’s conduct. To my mind, the application of the evidence to those relevant factors causes them to cumulatively speak towards a finding that the totality of the Applicant’s conduct has been very serious. I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable. Notably, there is a concession to this effect in the Applicant’s Statement of Facts, Issues and Contentions.[14]
[14] See A2, p 8, [46]. Hereinafter referred to as “SFIC”.
Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence …..; and
(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Sub-paragraph 8.1.2(2)(a): the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
There is careful recitation of the circumstances of the Applicant’s violent crimes and his crimes in the realm of domestic violence in the Respondent’s SFIC[15]. The nature and extent of this conduct was not cavilled with in any substantive way or at all at the instant hearing. It suffices to observe that this conduct unquestionably spawned both physical and psychological harm to its victims. This level of violent offending is contemplated by the Direction which provides at sub-paragraph 5.2(8) that: “The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify….revoking a mandatory cancellation ,…”
[15] See R2, pp 7-8.
I am satisfied that if the Applicant engages in further criminal conduct similar to that already perpetrated, the resulting harm to a victim(s) would range from physical[16], psychological[17] (including potentially catastrophic[18]) harm together with materially quantifiable[19] harm. Further, pursuant to sub-paragraph 8.1.2(1) of the Direction, I am satisfied that the harm resulting from repeated offending of the type sentenced in July 2024 is so serious that any risk of recommission of such offending should now be found to be unacceptable.
[16] That is, resulting from his violent offending and violent offending in a domestic context.
[17] That is, resulting from his violent offending and violent offending in a domestic context.
[18] That is, resulting from his violent offending and violent offending in a domestic context, plus, resulting from his driving while under the influence of alcohol.
[19] That is, resulting from his convictions for property offences plus from the sheer cost of his offending on the community’s law enforcement, judicial sentencing and public health care resources.
Sub-paragraph 8.2.2(b): the likelihood of the non-citizen engaging in further criminal or other serious conduct
During the course of closing submissions, the Respondent submitted the Applicant continues to represent a very real risk of re-offending. I think the evidence affords both plausibility and conviction to that contention. The evidentiary thesis grounding the submission is postulated in these terms: (1) the Applicant’s schizo-affective disorder; (2) that the Applicant was non-compliant with medication for that disorder which compounded its impact on him; (3) the Applicant’s history of alcohol abuse; (4) the Applicant’s illicit substance abuse; (5) the Applicant’s addiction to gambling; (6) the Applicant’s incapacity to deal with stressful situations affecting his life; (7) the Applicant’s incapacity to manage feelings of anger and frustration; and (8) the Applicant’s post-traumatic stress disorder.[20]
[20] Hereinafter referred to as “PTSD”.
The general tenor of the Applicant’s evidence.
The Applicant’s oral evidence contained repeated references to his historically poor behavioural responses towards situations of frustration and seeming impasse. His first reaction towards resolution of those challenges was to become angry and to physically manifest that anger by punching and/or throwing inanimate objects. He told the hearing this tendency towards physical expression of his anger became significantly worse when under the influence of alcohol. It was while in such a severely unregulated state that the Applicant so very seriously offended against his former domestic partner and her father culminating in the aggregate sentence of 20 months’ imprisonment he received in July 2024.
The Applicant’s mental health diagnoses.
In 2019, the Applicant suffered a psychotic episode that saw him admitted to the Meade Centre Armadale Hospital in Perth. The diagnosis made at that time was subsequently confirmed at the same treatment facility in June 2021 by Dr John Shin (Psychiatry Service Registrar) and again in September 2021 by Dr Runy Ruth George (Psychiatric Service Registrar. In January of this year, Dr Edward Fearon (from the Telecare Specialist Clinic) noted the Applicant’s past psychiatric history comprising the abovementioned psychiatric episode in 2019 and resulting diagnosis of schizoaffective disorder.
In a letter dated 24 October 2022, Dr Johannes Khor, Consultant Psychiatrist at the Meade Centre Armadale Hospital in Perth, diagnosed the Applicant with the following disorders: (1) schizophrenia; (2) substance use disorder; (3) alcohol misuse disorder; and (4) gambling disorder.[21] In May 2020, the Applicant was involuntarily admitted to the Armadale / Kelmscott District memorial Hospital in Perth and kept in a locked ward of that hospital’s mental health unit from 8 May 2020 to 13 May 2020. The principal diagnosis was “psychosis” resulting from the Applicant telling the treating team on admission that he was “…hearing multiple voices in his head fighting (strangers), not talking to him or about him…[the Applicant] described a vision in which he was at a table with Donald Trump and other celebrities and then “being taken” back to his country (Papua New Guinea[22]). Also stated “seeing all these conspiracies””.[23]
At the time of this involuntary admission and diagnosis, the Applicant was medicated via a prescription of Risperidone – 1mg tablet in the morning and evening. His subsequent medication comprised a 300mg monthly depot injection of Aripiprazole on which he currently remains.
The Applicant’s inconsistent and unreliable engagement with rehabilitation.
34.On 23 June 2022, a clinical nurse working with Dr Khor wrote to the Applicant and told him: “Dear [Applicant] I have not been able to contact you recently. Our records show that you have not been able to attend a medical appointment since 12/05/2022. You did not attend your last two appointments, or for your recent depot injection despite reminders, until prompted to do so after you presented to ED on 09/06/2022.”[24] The same clinical nurse working with Dr Khor again wrote to the Applicant on 10 October 2022 and told him this:
“Dear [Applicant] I refer to our attempts to contact you for medical appointments with Dr Khor Consultant Psychiatrist, and to administer your depot injection Aripiprozole 300mg IMI 4 weekly. Our records show that you have not attended your last 2 medical appointments as well as previous appointments. You have also been overdue for your depot injection since 29th September. You were contacted by [a clinical nurse from the same clinic] by phone on 30th September when you indicated that you did not wish to continue with your depot injection. You agreed to attend an appointment with Dr Khor and myself on the 6th October to discuss your ongoing treatment by the EEP Team, but you did not attend.”[25]
[21] R1, p 123.
[22] Hereinafter referred to as “PNG”.
[23] R1, p 103.
[24] R1, p 134.
[25] R1, p 125.
In his abovementioned report dated 24 October 2022, Dr Johannes Khor noted that “Despite intensive assertive outreach and psychoeducation, [the Applicant] and his family remain strongly opposed and resistive towards any mental health care. They are all well aware of the risks of untreated psychosis.”[26] Indeed, the Applicant has a demonstrated pattern of intermittent involvement with rehabilitation. In the period shortly after his discharge from involuntary admission to a locked mental health ward from 8-13 May 2020, the Applicant “…failed to attend multiple medical reviews…”[27]This same report (dated 17 June 2020) further notes
“He continued to take his medication for the first 4 weeks but following this weaned off on the advice of his mother and one of his mother’s friends, who he says is a doctor. He reported that his mom felt he did not need medication and that instead had been praying for him and encouraged him to read the Bible. In addition, she had organised for her pastor to come and lead prayers for him.
[The Applicant] felt that the episode had been due to his stress, poor sleep at the time and increased use of THC and that he had “lost his mind”. He felt that now that he was better, he did not need to continue the medication and at the time of review had not taken any risperidone for 1 week. …”[28][26] R1, p 123.
[27] R1, p 128.
[28] R1, p 130.
In terms of the Applicant’s most recent symptomatology and overall presentation, a clinical note prepared by a registered mental health nurse on 28 January 2025 noted the Applicant saying: “He…had been on a depot “on and off” over the past few years. Unsure if he is on the correct medication. His insight into his illness is poor, had difficult [sic] explaining any symptoms of his diagnosis. He explained that he has a hx [sic] of “lashing out” eg. Punching self, objects and that this has been a pattern since he was a child.”[29] In a further clinical note prepared by a psychologist on 11 February 2025 notes the following: “Insight and decision making good. …Current risk low but may change in response to lengthy detainment. Historical psychosis, in remission. Historical problematic use ETOH[30] and THC[31] use. Nil past 10+ months and committed to abstinence. Remains vulnerable to lapse whilst [in detention] due to exposure to substances and minimal access to protective lifestyle interventions.”[32]
[29] A5, p 49.
[30] Denoting: “Ethanol” – the specific type of alcohol found in alcoholic beverages like beer, wine, and spirits.
[31] Denoting: “Tetrahydrocannabinol” – the primary psychoactive compound found in cannabis.
[32] A5, p 45.
Dr Harsha Kadiveti is a psychiatrist attached to the Telecare Specialist Clinic. Dr Kadiveti reviewed the Applicant on 18 April 2025 which is also the date of the relevant clinical note. In terms of a recorded impression, Dr Kadiveti noted: “Schizoaffective disorder currently in full remission, maintained on monthly depot antipsychotic treatment. He demonstrates good insight, stable mood, and is functioning well within the structured environment of [immigration detention]. No active psychotic or mood symptoms were elicited.”[33] In terms of a future plan of treatment, Dr Kadiveti noted: “Continue Aripiprozole LAI 300 mg IM monthly. Next dose due around 10 May. Routine psychiatric follow-up extended to once every 3 months. …”[34]
The sentencing remarks from July 2024.
[33] A4.
[34] A4.
The learned sentencing Magistrate noted “…the facts and they are very disturbing.”[35] His Honour found the Applicant’s conduct to be “…in the midrange of objective seriousness.”[36] It was noted that ”[The Applicant’s] record does contain some other domestic violence related matter. [sic] It is an aggravating factor that it happened in the home.”[37] Although the Applicant raised no objection to the making of an apprehended violence order as part of the sentencing regime, His Honour noted: “As yet, I do not have any evidence that would be safe.” Finally, while the Court took into consideration a submission that the Applicant wants to have a life which does not involve alcohol, the sentence was structured such that it nevertheless contained this recommendation: “Recommended Drug and Alcohol rehab on parole.”[38]
The evidence of Dr Kala Ram, Clinical Psychologist.
[35] R1, p 46, lines 15-16.
[36] R1, p 46, lines 21-22.
[37] R1, p 46, lines 36-37.
[38] R1, p 49.
Dr Ram administered two risk-assessment methodologies. First, via the LSI-R[39] methodology, Dr Ram opined that the Applicant “…falls within the Low-Moderate Risk for re-offending (i.e., approximately 31.1% chance of recidivism). Of clinical relevance is that [the Applicant’s] static (unchanging) factors, such as criminal history, past behaviours (i.e., alcohol / drug misuse) and past instability / mental health, account for his slightly elevated score.”[40] Second, via the HCR-20[41] methodology, Dr Ram sought to determine the Applicant’s likelihood of recommitting an offence of violence in terms of low, moderate or high probability of violence. She noted: “The HCR-20 does not allow for a definite prediction of violence. This test was administered on [the Applicant]. At the time of the assessment, his score places him a Low risk for (future) violence.”[42]
[39] The Level of Service Inventory – Revised.
[40] A20, p 20, [3.2.5].
[41] HCR-20, Assessing Risk of Violence – Version 2.
[42] A20, p 20, [3.2.6.1].
Dr Ram identified certain protective factors[43] she says militate against the risk of reoffending. In short order, they comprised: (1) his accountability and contrition for his most serious offending (i.e. sentenced in July 2024); (2) strong family and community support; (3) pro-social attitudes; (4) stable mental health; (5) sustained abstinence from alcohol and illicit drugs; (6) positive attitude towards rehabilitative engagement; (7) employment prospects upon release; and (8) having a realistic direction for his future. I have misgivings and reservations about the viability and integrity of some or all of these so-called protective factors.
[43] A20, p 29, [6.10].
The starting point for those concerns resides in the High Court’s (with respect) prescient observation that “what has occurred in the past is likely to be the most reliable guide as to what will happen in future.”[44] The Applicant’s evidence about his most serious offending was not entirely unequivocal. His recounting of some of the factual indicia of what occurred was not exactly on all fours with how the evidence stood at the time he pleaded guilty to this very serious conduct. Family and social support was around him at the time he so very seriously offended. So objectionable was his conduct towards his family members that they were left with little or no alternative but to ask to him to leave the family home. The Applicant actually alienated his family in Perth and travelled to the other side of the country and committed his very serious offending. There is little or nothing to suggest those family members will be any more effective at curbing his propensity to offend now than they were before.
[44] See generally: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at p 575.
The Applicant is a talented football (soccer) player and widely regarded as such by his playing peers, his coaches and the footballing community in Perth. The Tribunal received evidence form at least two football playing colleagues who expressed their admiration and respect for the Applicant both as a person and as a footballer. But none of this camaraderie and support from such acquaintances in the past prevented him from descending into a pattern of alcohol and illicit substance abuse and consequential very serious offending.
Any pro-social attitudes the Applicant may now mention to Dr Ram will quickly evaporate into negative inclinations, intentions and actions were he to resume his fractious relationship with alcohol and /or illicit substances. Dr Ram talks about him having a stable level of mental health deriving from a positive attitude towards rehabilitative engagement. This has not been his history regarding rehabilitation. Overall, he has an unconvincing and unreliable pattern of rehabilitative engagement. This engagement has been at its best in the months leading up to this hearing and his earlier efforts to set aside the initial mandatory cancellation of his visa. It was clearly not like this before the commencement of this calendar year.
A remaining and concerning aspect of the Applicant’s aspect of the Applicant’s psychopathology is his capacity to deal with situations of difficulty, frustration and impasse. In those scenarios, he spoke of still being a person who lashes out and hits or throws things rather than thinking through a solution. His candid oral evidence was that this is the sort of person he is rather than this is the sort of person he was. The orientation of this evidence is of concern when it is considered in conjunction with his acceptance that in perpetrating his most serious conduct, he could have quite easily killed someone.
The Applicant has had excellent employment prospects before but prioritised drugs and alcohol above remunerative employment. He is fortunate to have trade qualifications in carpentry. Barely a day goes by when we do not hear of the severe shortage of tradespeople in the building and construction industry. I daresay in the past he had been spoilt for choice in terms of employment opportunities in this field, yet this did nothing to prevent him from offending. Dr Ram talks about him now having a realistic direction for his future. The difficulty with that now-claimed “protective factor” is that this is exactly what he had before his very serious offending and that it did not prevent him from so offending.
He had the same excellent employment prospects in the building and construction industry that he talks about now. On top of that, he had the love and devotion of a domestic partner for whom he was prepared to relocate to the other side of the country so he could be with her. Neither of these elements created enough of “realistic direction for his future” to prevent him from very seriously offending against her and her family and there is little to suggest the situation would be any different now.
In my view, the “little” that could now talk to a perhaps lower recidivist risk than before his removal from the community is to be found in the recent clinical opinion that his schizoaffective disorder is in remission and that the recurring depot injection is having an effect in this regard. As against that, all of the Applicant’s now-claimed abstinence from alcohol and drugs and his apparently new outlook on life has occurred in the closed and contemplative confines of either prison or immigration detention. If returned to the community, that would not be the benign environment in which he would find himself.
In the community, he would be required to deal with the exigencies and uncertainties of everyday life with its inherent pressures and unknown outcomes. Both alcohol and illicit drugs will be more easily available to him in the community. His capacity to resist ill-considered reactions to difficult moments and circumstances will again be tested. Importantly, Dr Ram told the instant hearing that her assessment of the Applicant having a low recidivist risk is contingent upon his continued abstinence from alcohol, illicit drugs and gambling coupled with him strictly observing his prescribed regime of medication and a continued engagement with rehabilitative therapy. The Applicant does not have a convincing history of either maintaining abstinence or any consistent involvement with rehabilitative therapy while in the community.
This is not to suggest the Applicant is entirely devoid of any intention or capacity to engage with at least some form of rehabilitation. While there has been some engagement, there is little or nothing in the material suggestive of any pattern of targeted rehabilitation to address his multitude of psychopathological symptoms be they his anger issues, his PTSD, his gambling and his substance abuse issues. True it may be that he has attended an unknown number of Alcoholics Anonymous meetings and that he has completed four alcohol and drug counselling sessions. But the extent of this rehabilitative engagement is surely indicative of a person whose rehabilitation is in its formative stages. It remains a work in progress. The Applicant is not, with respect, the finished rehabilitated article.
Earlier, I largely discounted the potential for the now-claimed protective elements to now act as a safe and reliable hedge against the Applicant’s recidivist risk. Out of an abundance of caution, I will have regard to whatever favourable evidence there may around those protective factors. First, the Applicant’s mother gave what can only be described as heart-felt and genuine evidence about wanting to support the Applicant if given a second chance to remain in this country. Despite his past conduct while living in the home of her and her husband, the Applicant’s mother would allow him to reside at home again if he remained in this country. Second, while I have expressed doubts about his capacity to sustain it, there is evidence of the Applicant at last coming to some form or realisation that, if nothing else in a rehabilitative or symptoms management sense, a sustained pattern of receiving the depot injection – as directed by the relevant clinician – is something that is working for him.
Third, in the past, the Applicant concealed much of the extent of his involvement in, and reliance upon, illicit drugs and alcohol abuse. Witnesses at the instant hearing spoke of either not knowing either anything or knowing very little at all about this part of the Applicant’s life. Now that these elements of his life have been exposed to all and sundry, it may be the case that he will be more open about the factors that caused him to offend, both with clinicians and the lay people around him. In turn this may speak favourably to his recidivist risk. Fourth, he is a young man in his mid-20’s and does have time to remediate his life’s trajectory despite his very significant mis-steps thus far. But each of these four possibly supportive factors can only be postulated on a very tenuous basis. In short, this is because the Applicant’s historical pattern of conduct does him no favours and has displaced virtually every single protective factor that may have previously assisted him.
Assessment of recidivist risk.
Having regard to the various elements presented by the evidence, I am of the view that the evidence speaks to the Applicant’s state of rehabilitation being in an incomplete state and of it otherwise being a work in progress. I will not cavil with the respective clinical findings about (1) the Applicant’s schizoaffective disorder being in remission since earlier this year and (2) Dr Ram’s respective assessments of a low risk for violent re-offending and a low-moderate risk for generalised offending. Despite these two elements, the Applicant’s history speaks to a real risk of him re-offending if now returned to the community. I reach this finding with the Direction’s dictum that “…the safety of the Australian community is the highest priority of the Australian Government” at the forefront of my mind.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a
non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.Conclusion of Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
a)I have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been very serious;
b)I have found that if the Applicant engages in further criminal conduct similar to that already perpetrated, the resulting harm to a victim(s) would range from physical, psychological (including catastrophic) harm together with materially quantifiable harm. I have also found, pursuant to sub-paragraph 8.1.2(1) of the Direction that the harm resulting from repeated offending of the type sentenced in July 2024 is so serious that any risk of re-commission of such offending should now be found to be unacceptable; and
c)the totality of the evidence points to a finding that this Applicant represents a real risk of re-offending if now returned to the community.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a very heavy level of weight towards this Tribunal affirming the decision under review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1. The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2. This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3. In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b) the cumulative effect of repeated acts of family violence;
(c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
(d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
In July 2024, the Applicant was convicted of two counts of Assault occasioning bodily harm (DV) – T2, two counts of Destroy or damage property (DV), one count of Stalk / intimidate intend fear physical etc harm (domestic) – T2 and two counts of Breached a Family Violence Restraining Order. Further particulars of this conduct are particularised at [26], [27] and [28] of the Respondent’s SFIC.[45] In short order, the Applicant’s family violence conduct involved very violent conduct towards a domestic partner which also brought another member of her family (her father) into its orbit. The Applicant cannot (and will not) now be heard to cavil with these convictions and the conduct grounding those convictions.
[45] R2, pp 8-10.
Paragraph 8.2 of the Direction compels two additional inquiries: (1) it is necessary to ascertain who was a member of the Applicant’s family? and (2) whether any of the Applicant’s conduct against any such family member amounts to family violence for present purposes? I will address each question in turn.
Who are members of the Applicant’s family?
Paragraph 4(1) of the Direction defines family violence to mean “…..violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family….or causes the family member to be fearful.” The Direction (at paragraph 4.1) defines “member of a person’s family” to include “….a person who has, or has had, an intimate personal relationship with the relevant person.” I am satisfied that the domestic partner / victim is a member of the Applicant’s family for present purposes.
Did Any of the Applicant’s conduct constitute family violence?
It will be recalled that ‘Family violence’ in the Direction is defined as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful’.[46] This definition poses two separate questions:
·was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family?
·was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful?
[46] Paragraph 4(1) of the Direction.
It is clear from the descriptions of the Applicant’s conduct perpetrated against his domestic partner was indeed conduct that was violent, threatening and/or behaviour that sought to coerce or control her and at least one other member of her family. I am likewise satisfied that the Applicant’s conduct in each of the relevant incidents was violent, threatening and that it was behaviour that caused domestic partner / victim to be fearful.
Is the Applicant’s conduct captured by paragraph 8.2 of the Direction?
The Applicant’s family violence conduct has been the subject of a multiplicity of convictions in July 2024. Accordingly, his family violence conduct must now be found to fall squarely within the auspices of paragraph 8.2(2)(a) of the Direction. The resulting findings must be that (1) the Applicant’s conduct towards his domestic partner comprises family violence against that victim; and (2) this Primary Consideration is relevant to determination of the instant application. I so find.
Assessment of the seriousness of the Applicant’s family violence conduct
I will now consider each of the factors in paragraph 8.2(3)(a)–(d) in turn for the purposes of assessing the nature and seriousness of the Applicant’s family violence conduct.
Paragraph 8.2(3)(a): requires an analysis of the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness. In terms of sentencing dates, the Applicant’s criminal history runs from July 2019 until July 2024. During that five year period, he compiled convictions for six domestically violent offences. It can therefore be safely found the Applicant’s family violence conduct has been frequent. His first conviction in the realm of domestic violence occurred in January 2024 for a breach of an extant family violence restraining order. This was followed half a year later by the convictions for the very serious domestically violent conduct sentenced in July 2024. The latter conduct is significantly more serious than the former. I am therefore satisfied the Applicant’s family violence conduct also demonstrates a trend of increasing seriousness. This particular sub-paragraph strongly militates in favour of a finding that the Applicant’s family violence conduct has been of a very serious nature.
Paragraph 8.2(3)(b): requires consideration of the cumulative effect of repeated acts of family violence. The Applicant’s family violence conduct has impacted at least one victim and drew another into its orbit. It has also resulted in damage to property and has consumed Policing resources to initially deal with it and then prosecute it through the Courts. It is reasonable to infer his family violence conduct for which he was convicted in July 2024 caused both physical and psychological harm to its victims. This particular sub-paragraph strongly militates in favour of a finding that the Applicant’s family violence conduct has been of a very serious nature.
Paragraph 8.2(3)(c)
: requires consideration of any rehabilitation achieved by the Applicant at the time of my decision since his last known act of family violence. This
sub-paragraph compels three enquiries:
(i)first, sub-paragraph 8.2(3)(c)(i) looks for the extent to which the Applicant has accepted responsibility for his family violence related conduct. In the SFIC filed on his behalf, there is reference to the Applicant feeling remorseful for his family violence conduct;[47]
(ii)second, sub-paragraph 8.2(3)(c)(ii) seeks to understand the extent to which a non-citizen comprehends the impact of their behaviour on the abused person. In his oral evidence, the Applicant accepted the very serious nature of his domestically violent conduct and further accepted there was a real possibility someone could have been killed in the course of it;
(iii)third
, sub-paragraph 8.2(3)(c)(iii) seeks to identify efforts made by a
non-citizen to address the factors which contributed to their family violence conduct. There is little or no evidence before me suggestive of this Applicant having undertaken any family violence prevention courses and / or counselling. Further, I again refer to the Applicant’s evidence about him still being a person who lashes out and hits or throws things rather than thinking through a solution to a given impasse. His oral evidence was that this is the sort of person he is rather than that is the sort of person he was. I repeat: the orientation of this evidence is of concern when it is considered in conjunction with his acceptance that in perpetrating his most serious conduct, he could have quite easily killed someone.
[47] See A2, p10, [55].
The outcome of the three inquiries compelled by this paragraph 8.2(3)(c) strongly militate in favour of a finding that the `Applicant’s family violence conduct has been of a very serious nature. I so find.
Sub-paragraph 8.2(3)(d) requires me to look at whether the Applicant has, ‘re-offended since being formally warned, or otherwise since being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence’. I have searched the material but cannot locate a copy of an actual domestic violence order made against the Applicant providing any warning about the consequences of further acts of domestic violence or of contravening an extant domestic violence order. Likewise, I cannot locate any sentencing remarks dealing with the family violence conduct giving rise to the conviction in January 2024 for the breach of an extant family violence order. That said, it would be remarkable if, at the time of being initially issued with the relevant family violence order, the Applicant did not receive a warning about the consequences of re-committing such conduct either orally from a judicial officer or in writing in the relevant domestic violence order (or equivalent) that usually contains such a warning. Given the absence of sentencing remarks and/or a copy of a domestic violence order from that period, I will, out of an abundance of caution, put this sub-paragraph to one side and render it neutral for present purposes.
Conclusion: Primary Consideration 2
I have found that sub-paragraphs 8.2(3)(a)-(c) facilitate a finding about the very serious nature of the Applicant’s family violence conduct. Having regard to the weight I have allocated to the various components of paragraph 8.2(3)(a)–(d) (inclusive), I am of the view (and I find) that this Primary Consideration 2 confers a very heavy level of weight in favour of this Tribunal affirming the decision under review.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction states:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The subsequent paragraph 8.3(2) also stipulates that in the assessment of any other ties that a non-citizen may have in Australia, the decision-maker must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Paragraph 8.3(1): Ties to immediate family members
The parties have helpfully provided an agreed list of immediate family, extended family, social links and minor children under the age of 18 years. This document is self-explanatory and appears as Exhibit R6 in the material. In terms of immediate family members, the Applicant’s mother and stepfather have provided written statements that detail the nature and extent of their relationship with the Applicant. Despite his past conduct causing them to remove him from their home, they are receptive to the Applicant returning to the family home to reside with them in the event of a successful outcome in the instant matter. This position was confirmed by the Applicant’s mother in her oral evidence to the instant hearing.
The Applicant also has a biological sister and a step-sister in Australia, neither of whom have children of their own. As best as I understood the material, neither of these siblings were impacted by the Applicant’s past conduct and there is nothing before me to suggest they would be resistant towards having the Applicant physically back in their lives. It can be safely found that the Applicant does have strong ties with these immediate family members comprising his mother, step-father, sister and step-sister. I will find that these ties militate in favour of a heavy level of weight in favour of the Applicant pursuant to this Primary Consideration 3. This finding is predicated on the limiting proviso that each of the people representing these immediate ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
Paragraph 8.3(2)(b) Ties to extended family and social links
The abovementioned Exhibit R6 contains reference to evidence from 11 individuals comprising social contacts and acquaintances of the Applicant in Australia. Four of those people also gave oral evidence to the instant hearing. I accept that these contacts are long-term friends of the Applicant and have not been marshalled on any artificial basis to simply garner favourable weight towards this Primary Consideration. With particular reference to the contacts who also gave oral evidence to the instant hearing, it seems clear that these people have formed a very solid bond with the Applicant to the extent of there being a strong level of mutual participation in each other’s lives. For example, the Applicant has christened the child of two of these social contacts to whom I will refer as Child R. By way of further example, another social contact acts as a helper and support person for the Applicant’s mother when required.
Exhibit R6 in the material also contains reference to “extended family” comprising two women in Perth who are cousins of the Applicant’s mother. I will abbreviate their names as Aunty M and Aunty A. There is reference to each Aunty having a spouse and children. Aunty M has a spouse and there is reference to their three adult children. Aunty A also has a spouse and they have four children each of whom are under the age of 18 years. Caution must be exercised around the allocation of weight towards the Applicant’s ties to these extended family members. This is so because there is very limited evidence around (1) the nature and extent of the Applicant’s relationship with these people and (2) the extent to which they would be impacted by his removal. These extended family members can only attract neutral weight for present purposes.
Finally, there is reference in Exhibit R6 to three further people or groups of people representing social ties of the Applicant to Australia. First, there is reference to the Applicant’s ties to the football club he represented during his past playing days. As I have mentioned earlier, he was very well regarded as a footballer by his club and other footballing peers. This can be seen from the material which contains reference to awards and accolades won by the Applicant as a footballer. It can also be seen in the evidence of those social ties with whom the Applicant played football. Second, there is reference to the infant Child R who is the abovementioned Godchild of the Applicant. Both of Child R’s parents gave oral evidence to the instant hearing. I accept that Child R’s parents intend for their child to have a strong relationship with the Applicant into the future.
Third, in the Applicant’s Personal Circumstances Form (“PCF”) there is a reference to apparently close family members who are said to be “Australian Aboriginal”.[48] Several things can be said about these claimed family members. I am not sure where the Applicant is going with this claim and whether there is any evidentiary basis on which to make it. There are no statements from these claimed family members and I suspect the Applicant is unlikely to get them. This is because these people are directly related to the unfortunate former domestic partner and victim of the Applicant’s conduct sentenced in July 2024. His claim about having ties to these people has no evidentiary traction and goes nowhere.
[48] R1, p 72.
I am satisfied the Applicant has strong social ties with the people referred to in [74] and [76] of these Reasons. I will find that these ties militate in favour of a heavy level of weight in favour of the Applicant pursuant to this Primary Consideration 3. This finding is predicated on the limiting proviso that each of the people representing these social ties referred to in [74] and [76] of these Reasons being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
Paragraph 8.3(2)(a): Additional factors to take into account
79.This component of Primary Consideration 3 requires me to look at how long the Applicant has resided in Australia, taking into account the following factors:
·whether the Applicant arrived here as a young child? [49] The Applicant arrived in Australia in February 2013 when he was 14 years old. He has lived here for a period of about 12 years. I will find that the Applicant did not arrive here as a young child. This component of paragraph 8.3(2) does not augment the weight allocable to his ties to this country;
[49] Paragraph 8.3(2)(a) of the Direction.
·whether the Applicant began offending soon after arriving here? [50] The Applicant arrived here as a 14-year-old and recorded his first criminal conviction in Australia some five years after his arrival. He did not begin offending soon after arriving here. Thus, the weight allocable to the Applicant for this Primary Consideration 3 cannot be impugned on the basis of him offending soon after arriving here;
[50] Paragraph 8.3(2)(a)(i) of the Direction.
·the time the Applicant has spent contributing positively to the Australian community during his time here.[51] The Applicant worked as an employed carpenter for the period 2017 to 2023. For the period 2023 to 2024, he was self-employed as a carpenter.[52] I will find he has a moderately strong work history in Australia. He would have no doubt have paid his share of income taxation on his earnings as a carpenter. He appears to have some measure of community involvement via his football (soccer) commitments[53]. He has also volunteered to assist the homeless and destitute in his local area[54]. He has not married in this country and has not fathered a child here. On the basis of his moderately strong employment and community contributions, I will find that this component of paragraph 8.3(2) of the Direction affords a heavy level of weight in the Applicant’s favour towards a finding about the strength of his ties to Australia.
[51] Paragraph 8.3(2)(a)(ii) of the Direction.
[52] See R1, p 74.
[53] See R1, pp 88-91.
[54] See R1, p 75.
Accordingly, I am of the view (and I find) based on my analysis of the evidence around subparagraph 8.3(2)(a) of the Direction that:
· sub-paragraph 8.3(2)(a) does not augment the weight allocable to the Applicant for the purposes of this Primary Consideration 3 because he did not arrive in Australia as a young child;
· sub-paragraph 8.3(2)(a)(i) does not impugn the weight allocable to the Applicant for the purposes for this Primary Consideration 3 because he did not begin offending soon after arriving in Australia;
· sub-paragraph 8.3(2)(a)(ii) does assist the Applicant because of his moderately strong employment and community contributions to Australia.
Therefore, only the specific sub-paragraph 8.3(2)(a)(ii) (employment and community contributions) serves to augment the weight I have already allocated to the Applicant pursuant to the earlier-applicable paragraphs comprising paragraph 8.3(1) and 8.3(2)(b) of the Direction, respectively, relating to his ties to immediate family members in Australia and his social ties in Australia.
Conclusion: Primary Consideration 3
I have referred to the three relevant components of this Primary Consideration 3. I am of the view, after having analysed the evidence relevant to each of those three components to which the evidence applies, that the totality of that evidence points to a heavy level of weight in favour of this Tribunal setting aside the decision under review.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This Primary Consideration requires a decision-maker to consider what impact a decision to refuse or not revoke cancellation of a visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[55] The Direction further requires that the best interests of each child must be considered individually if there is more than one minor child identified.
[55] Paragraphs 8.4(1) and 8.4(2) of the Direction.
In assessing the best interests of each child/ren, a decision-maker is required to take into account:[56]
[56] Paragraph 8.4(4) of the Direction.
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Identification of relevant minor child/ren
85.Earlier in these Reasons (at [75]) I referred to and discounted any taking into account the four minor-aged children of Aunty A and her spouse. I will do likewise for the purposes of this Primary Consideration 4. According to the list appearing at Exhibit R6, that leaves only one relevant minor-aged child for present purposes. That child comprises the abovementioned Child R who is the Applicant’s Godchild. In the Applicant’s SFIC, Child R is referred to in these terms: We note that the Applicant does not have any biological children but rather a godson, [Child R] born on [date redacted] January 2022…..who will be impacted by his removal. We ask that the interest of his Godchild is considered however we note that this relationship is not parental and that the Applicant have ]sic] been incarcerated for the majority of [Child R’s] life.[57]
[57] A2, p 12, [68]-[69].
Both of Child R’s parents have provided written and oral evidence to the instant hearing. In his written statement, Child A’s father says: “…[the Applicant] is a good friend to me and my family, he is the godfather to…[Child R]…that shows how much trust and love we have for one and other [sic].”[58]In his oral evidence, Child R’s father described the Applicant as the closest person he trusts to in Child A’s life. While acknowledging the Applicant has been physically absent from Child A’s life for a considerable period of time, he said Child R would definitely be upset if the Applicant were removed.
[58] A8.
Application of factors at 8.4(4) of the Direction to Child R
The Applicant has been physically absent for a significant portion of Child R’s life thus far. This is not to suggest there is no existing relationship between them but it is suggestive of limited meaningful contact and a predominantly non-parental pattern of involvement in the child’s life.[59] The evidence of both of Child R’s parents was that they would welcome the Applicant’s involvement in Child R’s life into the future. While he is not expected to play a parental role, there are something like 14 years until Child R reaches the age of 18 years. So there is plenty of time for the Applicant to re-establish and re-commence a positive role in Child R’s life.[60] There is no evidence that any of the Applicant’s past conduct has impacted Child R or that possible such future conduct by the Applicant would impact that child either.[61]
[59] Sub-paragraph 8.4(4)(a) of the Direction.
[60] Sub-paragraph 8.4(4)(b) of the Direction.
[61] Sub-paragraph 8.4(4)(c) of the Direction.
There is little or nothing to confirm that for the period of his removal from the community, the Applicant has communicated with Child A either in person (through a prison visit or a visit to the detention facility) or via non-in-person means. It is therefore not possible to reliably gauge any extent to which the Applicant would be able to communicate with Child A via non-in-person means if now removed.[62] Clearly, there are other people who fulfil a parental role regarding Child R.[63] Child R is not yet four years of age and is thus too young to reliably express any views about the impacts he would experience in the event of the Applicant’s removal.[64] There is no evidence that the matters referred to in sub-paragraphs 8.4(4)(g) and (h) of the Direction have any application to the instant facts.
[62] Sub-paragraph 8.4(4)(d) of the Direction.
[63] Sub-paragraph 8.4(4)(e) of the Direction.
[64] Sub-paragraph 8.4(4)(f) of the Direction.
Allocation of weight to the best interests of the relevant minor-aged child
89.If the Applicant were to be permanently removed from Australia as a result of an adverse outcome in the instant matter, I am of the view that the combination of weight allocable to each of sub-paragraphs 8.4(4)(a), (b) and (c) should, at its highest, attract the allocation of a moderate level of weight to the best interests of Child R.
Conclusion: Primary Consideration 4
I will therefore find that this Primary Consideration 4 is of moderate weight in favour of this Tribunal revoking the decision under review.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The normative expectation
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[65] The Direction further explains:
[65] Paragraph 8.5(3) of the Direction.
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1) – (3) of the Direction], without independently assessing the community’s expectations in the particular case.’[66]
[66] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.”
Has the Applicant breached the normative expectation?
It can be safely found the Applicant has clearly breached the Australian community’s expectations by his record of very serious criminal offending in this country which is evidenced by his convictions received in July 2024 for five very serious breaches of the Australian criminal law.[67] Therefore, I will find that the Australian community, ‘as a norm’, expects the Australian Government not to allow this Applicant to remain in Australia.
[67] That is, the five convictions sentenced in July 2024 at a Local Court in regional Local Court in NSW; see R1, pp39-40.
Is the Applicant’s conduct alone sufficient to breach the normative expectation?
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[68]
[68] Paragraph 8.5(2) of the Direction.
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or(f) worker exploitation.
The Applicant has respective convictions for (1) domestically violent offending and (2) respective convictions for crimes committed against government officials (i.e. the Police) in the performance of their duties. This offending comfortably falls within the auspices of the abovementioned sub-paragraphs (a) and (d) of paragraph 8.5(2) of the Direction. I am readily satisfied that these convictions are sufficiently serious such that the Australian community would expect the Australian Government to refuse to set aside the mandatory cancellation of his visa.
Are there any factors modifying the Australian community’s expectations?
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(5), (6) and (7) of the Direction. In summary these are:
a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa (paragraph 5.2(5));
b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time (paragraph 5.2(5));
c)Australia may afford a higher level of tolerance towards criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age (paragraph 5.2(6));
d)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen (paragraph 5.2(7)); and
e)the inherent nature of the non-citizen’s conduct is so serious that it displaces even strong countervailing factors militating in favour of a positive visa outcome for a non-citizen even in circumstances where the non-citizen does not pose a measurable risk of harm to the Australian community (paragraph 5.2(8)).
In relation to sub-paragraph (a) of the abovementioned paragraph [96],the term ‘limited stay visa’ is not defined in the Act. In this case, the Applicant held a Class BT Subclass 802 Child visa until it was mandatorily cancelled on 21 August 2024.[69] This Visa is classified as a ‘permanent visa permitting the holder to travel to and enter Australia for 5 years from date of grant.’[70] As this Visa permitted the Applicant to remain in Australia on a permanent basis, the Visa held by the Applicant cannot be classified as a ‘limited stay visa.’[71] Therefore, this sub-paragraph (a) is not applicable to the Applicant.
[69] R1, p 19.
[70] Migration Regulations 1994 (Cth), vol 2, sch 2, subclass 802.511.
[71] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
In relation to sub-paragraph (b) of the abovementioned paragraph [96], the Applicant has spent about 12 years in Australia since arriving here aged 14 years. He has spent about 48 per cent of his life in this country and is currently aged 25 years. He has a moderately strong work history in Australia and has made certain employment and community contributions while here. He has not married in this country and has not fathered a biological child here. Be that as it may, whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, I will cautiously find the Australian community’s tolerance is not lowered by this part of the principles in 5.2(5) of the Direction.
In relation to sub-paragraph (c) of the abovementioned paragraph of [96], I repeat that the Applicant arrived in Australia as a 14-year-old in 2013. He has spent just under half his life in Australia and he did not come here at a very young age.[72] I will therefore find that the Australian community’s level of tolerance of criminal or other serious conduct by this Applicant is not raised.
[72] This is consistent with my finding at [79] (first dot point) and [80] (first dot point).
In relation to sub-paragraph (d) of the abovementioned paragraph [96], I am of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his very serious criminal offending[73] of the same type already committed and (on the other hand), whatever countervailing considerations may work in his favour, is not necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that his very serious offending (convicted in July 2024) has been of such a significantly serious magnitude as to dispel any applicable countervailing considerations working in his favour.
[73] That is, primarily the offending convicted in July 2024.
In relation to sub-paragraph (e) of the abovementioned paragraph [96], I am of the view that the Applicant’s very serious conduct convicted in July 2024 is so serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I have found that the Applicant still represents a real risk of re-offending and that if he were to re-offend, the resulting harm to the Australian community renders such a risk unacceptable. This means that the balance of the abovementioned sub-paragraph (e)[74] does not need ventilation here.
[74] That is, about whether the Applicant does not pose a measurable risk of causing physical harm to the Australian community.
Having regard to the above discussion around sub-paragraphs (a)–(e) (inclusive) referenced in paragraph [96] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very serious nature of the totality of his offending, this Primary Consideration 5 compels a finding that the community expects the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
The Applicant makes no claim for protection that could possibly engage Australia’s non-refoulement obligations in the event of his removal to PNG.[75] He does not hold, and has no intention to apply for, a protection visa. He is not barred from doing so by either the bar in s 48A of the Act or the prohibition in s 501E of the Act. High Court authority supports the proposition that a non-citizen before this Tribunal who has capacity to make an application for a protection visa allows this Tribunal to defer any assessment of whether any non-refoulement obligations are owed to that non-citizen.[76]
[75] See A2, p 14, [78].
[76] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7 at [29]-[30].
It would be trite to suggest (or find) there will be no adverse consequences for this Applicant were he not to succeed in the instant application. If unsuccessful here, the Applicant will, as a matter of law, be permanently excluded from re-entering Australia. This will result in at least two consequences. The first consequence is permanent exclusion from this country. That consequence is not something that engages the terms of paragraph 9.1 of the Direction. The plain and clear terms of s 501E of the Act prohibit him from making any application for another visa with the exception of a protection visa.[77]
[77] Section 501E(2) of the Act.
The second consequence refers to the impact on him in terms of (1) emotional and other impediments he will experience if removed and (2) the impact upon the ties and other relationships he has with people in Australia. Neither of these two aspects of this second consequence fall for consideration under paragraph 9.1 of the Direction. The former (i.e. impediments) fall for consideration under paragraph 9.2 of the Direction. The latter (i.e. ties to Australia) were considered earlier in these Reasons pursuant to paragraph 8.3 of the Direction.
Accordingly, while there may well be legal and other consequences for the Applicant if unsuccessful in this Tribunal, it would be unsafe to allocate anything more than moderate weight to those legal and other consequences.
Other Consideration (b): Extent of impediments if removed
Factors to be taken into account
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): The Applicant will turn 26 next January. In terms of his age, he is in the prime of his life. His physical health seems good. He was (and could still probably be) a very good footballer. There is no escaping the Applicant’s mental health symptoms which manifested in 2019 with a diagnosis of schizoaffective disorder. On the one hand, the latest clinical opinion is that with the aid of a regular depot injection, this condition is in remission. That said, if he is removed to PNG he will most likely require at least some measure of treatment for his mental health symptoms. The material contains a copy of the DFAT[78] Country Information Report for PNG which makes it clear that (1) “….the PNG Government has not adequately resourced the mental health sector. …”; (2) “…….There is less than one psychiatrist per 100,000 population in PNG according to the WHO. …[79] ; and (3) “…mental health services and specialist medications are often inadequate and largely limited to major urban centres…”[80]My finding will be that the Applicant’s age and state of physical health are not necessarily impediments to him returning to PNG but that his mental health issues do present as impediments. To whatever extent they do present as impediments, I am of the view that those impediments are real but not insurmountable.
[78] Denoting: “Department of Foreign Affairs and Trade”.
[79] Denoting: “World Health Organisation”.
[80] These three quotations can be found in A2, pp15-16, [86].
Paragraph 9.2(1)(b): The Applicant spent about the first half of his life in PNG. The evidence does not suggest has a complete lack of cultural or linguistic familiarity and recollection with and of that country. Twelve years in Australia may, to an extent, slightly cloud a non-citizen’s cultural and linguistic recollection of their country of origin. But when they have spent 14 years in that country of origin before coming here and they are now in their mid-20’s, it is very unlikely those recollections will have been obliterated. I am of the view there are no substantial language or cultural barriers impeding the Applicant’s return and re-settlement in PNG.
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in PNG. First, with reference to economic support, the Applicant has compiled a moderately strong employment history in Australia. He has consistently worked as a carpenter in the building and construction industry in Australia. Although he has mental health symptoms, they have not precluded him from engaging in remunerative employment as a carpenter in this country. It is quite likely he will be able to apply the carpentry and joinery skills and experience he has acquired in the Australian workforce towards doing similar work in PNG. I am of the view that any lack of economic support in PNG is not an impediment to his return and resettlement there.
Second, I have referred to his mental health symptoms. To the extent he may require publicly available care and treatment for those symptoms in PNG, he will be able to avail himself of such medical support as is available to other citizens of that country. While I accept there may be a relative difference between Australia and PNG in the standard of such publicly available care, it is not to suggest that the Applicant will be entirely devoid of such medical support in PNG. The question of medical support in PNG is a real but not insurmountable impediment to his return and resettlement there.
Third, with reference to social support available to him in PNG, the evidence contains scant reference to any friend, relative or contact who could assist the Applicant with short to medium term accommodation until he gets settled there. This lack of social support is, I think, the most significant of the impediments he will face if returned to PNG. It is not an insurmountable impediment, but it will be more difficult to overcome that any of the other impediments I have identified.
Findings about impediments
My findings about impediments are as follows:
·the Applicant’s age and state of physical health are not impediments to his return and resettlement in PNG. His mental health symptoms do represent a real but not insurmountable impediment;
·there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in the PNG;
·any lack of economic support is not an impediment to his return and re-settlement in PNG;
·to the extent that any lack of mental health support is an impediment to his return and re-settlement in PNG, I have found it is a real but not insurmountable impediment; and
·in terms of a lack of social support in PNG, I have found this is the most real and significant impediment to be overcome but is not an insurmountable one.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, a heavy level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Other Consideration (bb): stigma attaching to mental health patients in PNG
There was a broadly postulated contention put on behalf of the Applicant to the effect that he will be shunned or discriminated against in PNG due to his mental health symptomatology. And further, that he will become the subject of violent attack and/or the subject of taunts of involvement in sorcery and / or witchcraft because of his mental health symptoms. I think this contention can be safely dispatched and rendered neutral. This is so because of what appears in the DFAT Report. It acknowledges that “PNG society traditionally viewed those living with mental health conditions as ‘weak’, which often led to a lack of respect within the community…”[81]but goes on to say “DFAT is not aware of violence or accusations of sorcery / witchcraft being made against people living with mental health conditions based solely on their condition(s) or diagnoses.”
[81] A17, p 8, [2.35].
Further, the DFAT report says “anyone in PNG can be accused of sorcery or witchcraft, including men, women, children, and older people.”[82]While the DFAT Report says “Those accused of sorcery are often subject to harassment and sometimes violence, known as Sorcery Accusation Related Violence (SARV)”, it does not follow that the Applicant will face such an accusation and consequential violence based on his mental health condition and / or diagnosis. This latterly propounded Other Consideration (bb) should be put to one side and rendered neutral for present purposes.
[82] A17, p 22, [3.56].
Other Consideration (c): Impact on Australian business interests
The evidence around an “Australian business interest”
The position put on behalf of the Applicant, broadly put, is this: “We contend that this can be a relevant consideration in this case. …We note that the Applicant is a carpenter by trade and assisted in the construction industry. Therefore his skills and his removal from Australia would impact the delivery of this important service in Australia. We submit that this consideration supports a revocation decision.”[83]
[83] A2, p 16, [87], [89]-[90].
More particularly, as best as I understood the Applicant’s oral closing submissions, this contention was particularised in these terms: (1) an employment link would generally only be given weight if a non-citizen’s removal would significantly compromise delivery of a major project; (2) the Applicant accepts his removal would not compromise delivery of any such major national project; (3) the specific submission is that the Applicant’s skills in carpentry and joinery do facilitate (at least in part) the delivery of an important service in Australia, specifically in the building and construction industry; (4) that his removal to PNG would compromise the delivery of an important service in Australia; and (5) that the Applicant has also had some involvement in the mining industry and his removal may also impact this aspect (i.e. mining) of Australia’s business interests.
Arachchi[84]
[84] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311.
As best as I understood the Applicant’s position, the question for present purposes is whether the Applicant’s removal to PNG would significantly impact the delivery of carpentry and joinery services in Australia plus the delivery of mining services in Australia. In Arachchi, His Honour Mr Justice Rangiah said:
‘Paragraph 9.4.2 of Direction 90[85] commences by stating that, “Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia ...”. The requirement is to consider any impact on Australian business interests. The requirement is not confined to business interests of a particular scale or importance.
[85] Now expressed in identical terms in paragraph 9.3(1) of the Direction.
Paragraph 9.4.2 goes on to state that, “an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia”. Three observations may be made. First, this qualification applies only where there is a relevant “employment link”. Second, even where there is a relevant “employment link”, decision-makers are not relieved from their obligation to consider any impacts on Australian business interests. Third, while “generally” weight will only be given to the impact on business interests where the cancellation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia, the Direction does not purport to preclude decision-makers from giving weight to impacts on business interests in other circumstances.
The expression “employment link” must refer to a link between employment of the former or prospective visa holder and impacts on Australian business interests resulting from the person not being able to engage in such employment as a result of cancellation or refusal of a visa. It is unnecessary, in the absence of argument, to consider precisely what is meant by “employment” in this context, or to consider the nature of the link that is envisaged. It is enough to conclude that, in the present case, the applicant’s claim was not confined to any “employment link” but was that he had an ownership interest in a business and that his removal from Australia would affect his partner’s business interests.’[86]
[86] Arachchi, [68]-[70].
Applying Arachchi to the instant facts, I am, first, satisfied that the subject carpentry / joinery business the Applicant conducted on his own account immediately prior to his incarceration is not excluded from consideration for present purposes due to its relative scale or importance. Second, I am also satisfied there is a relevant “employment link” between the Applicant and the business he conducted prior to his incarceration. The Applicant could realistically return to self-employment as a carpenter / joiner or he could also be re-employed in that industry and work for someone else if now returned to the community; Third, it is clear the Applicant’s formerly-conducted business has been impacted due to his removal from the community. This impact would be perpetuated by his permanent removal to PNG.
Findings about this Other Consideration (c)
On the basis that the Applicant’s removal to PNG would – to an extent – compromise the provision of carpentry and joinery services in Australia, I am of the view (and I will find) that this Other Consideration (c) attracts, at best, a moderate level of weight towards restoration of the Applicant’s visa status to remain here. For the sake of completeness, I will refrain from applying Arachchi to the whatever work the Applicant may have done in the mining industry. Such is the dearth of evidence around this element that no safe finding can be made about how it engages this Other Consideration (c).
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of moderate weight in favour of revocation;
(b)extent of impediments if removed: is of heavy weight in favour of revocation;
(bb) mental health stigma in PNG: is of neutral weight; and
(c) impact on Australian business interests: is of moderate weight in favour of revocation.
CONCLUSION
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: is of a very heavy level of weight in favour of affirming the decision under review;
·Primary Consideration 2: is of a very heavy level of weight in favour of affirming the decision under review; weight;
·Primary Consideration 3: is of a heavy level of weight in favour of setting aside the decision under review;
·Primary Consideration 4: is of moderate weight in favour of setting aside the decision under review;
·Primary Consideration 5: is of a very heavy level of weight in favour of affirming the decision under review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 and Other Considerations (a), (b) and (c) are dispositively outweighed by the combined respective and very heavy weights I have allocated to Primary Considerations 1, 2 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 11 June 2025 to not revoke the mandatory cancellation of the Applicant’s Class BT Subclass 802 Child visa.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of
the reasons for the decision herein of Senior Member T Tavoularis
..............[SGD]..............
Associate
Dated: 12 September 2025.
Dates of hearing: 20, 21 and 22 August, 2025 Solicitor for the Applicant: Ms Marial Lewis (Principal)
Crossover Law GroupSolicitor for the Respondent Ms Sophia Xian (Lawyer)
Clayton UtzANNEXURE A
ADMINISTRATIVE REVIEW TRIBUNAL
)
)
No: 2025/4078
)
Re: JMJN
Applicant
And: Minister for Immigration and Citizenship
Respondent
DECISION
TRIBUNAL: Senior Member T Tavoularis
DATE: 3 September 2025
PLACE: Brisbane
Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal AFFIRMS the decision made by a delegate of the Respondent dated 11 June 2025 to not revoke the mandatory cancellation of the Applicant’s Class BT Subclass 802 Child visa.
The Tribunal will give written reasons within a reasonable time of this decision.
...........................[SGD]............................
Senior Member T Tavoularis
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