Kapi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 1664
•30 May 2024
Kapi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1664 (30 May 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1413
Re:Caspa Cambi Kapi
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member A. Julian-Armitage
Date:30 May 2024
Date of written reasons: 13 June 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision made by the Respondent’s delegate dated 6 March 2024 is set aside and substituted with a decision that pursuant to subsection 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) the mandatory cancellation of the Applicant’s visa is revoked.
...............................[SGD].........................................
Member A. Julian-Armitage
Catchwords
MIGRATION - Non-revocation of mandatory cancellation of a Child (Class AH) (Subclass 101) visa - PNG citizen - where the Applicant does not pass the character test - where Applicant has a substantial criminal record - where Applicant convicted of offence of rape - where Tribunal considered evidence with respect to recidivistic risk - whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked - consideration of Ministerial Direction No. 99 - decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
LRMM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3162 (6 October 2023)
Mohmmad Azam Khan v Minister for Immigration and Ethnic Affairs [1994] FCA 955Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Refugees Convention
REASONS FOR DECISION
Member A. Julian-Armitage
13 June 2024
BACKGROUND
The Applicant is a 24-year-old citizen of Papua New Guinea (PNG). The Applicant was born in Australia to parents with PNG citizenship and departed Australia in July 1999.[1] Since then, he arrived and departed Australia periodically in 2002 and 2008.[2] He returned to Australia in 2017 as the holder of a Child (Class AH) (Subclass 101) visa (visa).[3]
[1] Exhibit R1, p 2, para 3.
[2] Exhibit Tr1, G25, p 239.
[3] Exhibit R1, p 2, para 4.
The Applicant’s offending consists of a single offence of Rape, for which the Applicant was sentenced in June 2020 to a period of imprisonment of five years and six months.[4]
[4] Exhibit Tr1, G34, p 43.
On 14 June 2022, the Applicant was notified that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act), on the basis that he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis.[5]
[5] Exhibit R1, p 2, para 6.
On 17 June 2022, the Applicant made written representations requesting the revocation of the cancellation of the visa.[6]
[6] Exhibit R1, p 2, para 7.
On 6 March 2024, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) made the decision to not revoke the earlier mandatory cancellation,[7] which was delivered, by hand, to the Applicant on 7 March 2024.[8] On 11 March 2024, the Applicant lodged the instant application before this Tribunal seeking review of the non-revocation decision.[9] I am satisfied that this Tribunal has jurisdiction to review the non-revocation decision pursuant to s 500(1)(ba) of the Act.
[7] Tr1, G3, p 16.
[8] Tr1, G3, p 13.
[9] Exhibit Tr1, G2, p 9.
The application was heard in Brisbane on 15 and 16 May 2024. The Tribunal heard oral evidence from the Applicant, as well as the following parties:
·Mr Justin Humphrey;
·Dr James Freeman;
·AX (the Applicant’s mother); and
·CZ (the Applicant’s minor sister).
The Tribunal also received written evidence with the totality of that material being consolidated into an Exhibit Register, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
Legislative Framework
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
“The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; or
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. It stipulates that a person will not pass the character test if they have a “substantial criminal record”. In turn, a “substantial criminal record” is where a person has been sentenced to a term of imprisonment of 12 months or more.[10]
[10] See ss 501(6)(a) and 501(7)(c) of the Act.
The Tribunal finds that the Applicant fails the character test,[11] due to him being sentenced to a term of imprisonment of five years and six months, for the offence of Rape.[12] Accordingly, I find that he cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[11] See Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].
[12] Exhibit Tr1, G4, p 42-43.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the s 501CA(4) discretion, this Tribunal is bound by s 499(2A) of the Act and must comply with any directions contained therein. In the present case, Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction or Direction 99) has application.[13]
[13] Direction No. 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation
under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that inform a decision-maker’s application of the considerations relevant to the decision. These principles are found in paragraph 5.2 of the Direction and are as follows:
1Australia 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.
2Non-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.
3The 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.
4Australia 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.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the
non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.Paragraph 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;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
THE OFFENDING
The Applicant has resided in Australia on a permanent basis from 2017 (aged 17 years) to the present date,[14] although he appears to have had a long-standing connection with Australia, having been born here. He completed his secondary schooling (years 11 and 12) here,[15] and has since completed some vocational education/training as well.
[14] Exhibit A1, para 75.
[15] Exhibit A1, para 78.
The Applicant’s offending consists of a single offence of Rape that occurred in 2018, for which he was sentenced in June 2020 by the Brisbane District Court, following a plea of guilty.[16] There is nothing on the material before me, nor have the parties agitated, that there is any other criminal history pertaining to this Applicant, either in Australia or overseas. For completeness, the Tribunal notes the Applicant has a very minor traffic history that consists chiefly of speeding infringements.[17]
[16] Exhibit R1, p 5, para 26.
[17] Exhibit Tr2, TB4, p 36-37.
The Applicant was sentenced to five years and six months imprisonment. He was granted a parole eligibility date of 28 April 2022. At the time of committing the offence, the Applicant was 19 years of age, and the victim was 17.[18]
[18] Exhibit R1, p 5, para 26.
The offence occurred at an after party for the Applicant’s school formal. The Applicant slept in the living room with four of his classmates.[19] The victim consented to the Applicant sleeping next to her and at some point, the parties kissed and cuddled, until the victim fell asleep.[20] The victim awoke to the Applicant perpetrating the offence, which only ceased upon the entry of a third-party, who turned on the lights after hearing a commotion.[21]
[19] Exhibit R1, p 6, para 26.
[20] Exhibit R1, p 6, para 26.
[21] Exhibit R1, p 6, para 19.
In sentencing, the Brisbane District Court confirmed the unimpeachably serious nature of the Applicant’s offending:
“You lay next to the complainant. There was some kissing and cuddling. The complainant then went to sleep. She woke up shortly after and you had removed her pants, her underwear was pulled to the side, and your penis was inside her vagina. That caused her pain. You were not wearing a condom. She asked you to stop, and you would not. She began crying and again asked you stop, saying "no", and you again persisted. By this stage, the male of the couple, had woken up and asked you to stop, and you still persisted. Then both of that couple again asked you to stop. By this stage, the mother of the girl hosting party overheard the commotion and came down, turned on a light, and it was only that stage that stopped.
…
The Crown has accepted the plea on the basis that it cannot exclude that you initially held an honest and unreasonable belief regarding her consent. However, by the time you were removing her pants, you must have known that she was asleep - even in your drunken state. And, certainly, once she said no, you clearly knew that she was not interested. The fact that you were drunk perhaps explains why you behaved the way you did on this particular night, but it does not in any way excuse your behaviour. What can be said for you is that you did express remorse, and I accept that you are sorry for your actions. You have no previous convictions, and that is a positive thing”.[22]
[22] Exhibit Tr1, G6, p 47.
The Applicant was sentenced to a term of imprisonment of five years and six months. The Court affixed a parole eligibility date of 28 April 2022 and records before the Tribunal appear to indicate that the Applicant was released in October 2023.[23]
[23] Exhibit Tr1, G5, p 44.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm resulting from 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.
I will deal with each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraph 8.1.1 considerations
Sub-paragraph 8.1.1(1)(a): the essence of this area of the Direction provides for the types of offences committed within the genre of sub-paragraph (i), (ii) or (iii) to be viewed very seriously by the Australian Government and the Australian community. The Applicant’s offence falls squarely within subparagraph (1).
In addition, given the fact that the victim did not voluntarily engage in the conduct constituting the offending and the Applicant persisted despite the victim’s protests, it follows that there would have been a degree of force engaged by the Applicant.
The Respondent contends, and the Applicant concedes, that the offending has been “very serious” in nature and I agree.[24] It is without doubt that the offending falls within sub-paragraphs (i) and (ii) and therefore favours a finding that the offending has been “very serious”.
[24] Exhibit R1, p 6, para 27-29; Exhibit A1, para 29.
Sub-paragraph 8.1.1(1)(b): this area of the Direction refers to the types of crimes that may be considered serious by the Australian Government and the Australian community. The Respondent contends that the offence was committed against a vulnerable member of the community - being an intoxicated, sleeping female under the age of 18.[25] For the purposes of this sub-paragraph, it can readily be said that people who meet these characteristics can be found to be vulnerable members of the community, and I so find.
[25] Exhibit R2, p 2, para 6.
Sub-paragraph 8.1.1(1)(c): this sub-paragraph looks to sentencing of certain non-precluded offending. I have already found that the conviction falls within sub-paragraph (1)(a)(i) and (ii) and therefore I am precluded from considering the sentence imposed in this regard. The Applicant does not appear to have any other criminal offending history, either in Australia or overseas. Therefore, the provisions of this sub-paragraph are not engaged.
Sub-paragraph 8.1.1(1)(d): two questions arise for consideration within this sub-paragraph. The first requires an assessment of the frequency of the Applicant’s offending and the second is whether there is a trend of increasing seriousness. The Applicant’s offending constituted a single incident committed during one transaction of events. His offending did not occur over multiple or repeated incidents and, with the exception of this offence, the Applicant has an otherwise unblemished record (save for an unremarkable traffic infringement history). Therefore, it cannot be said that the Applicant’s criminal offending has been frequent or that there is an increasing trend of seriousness.
Sub-paragraph 8.1.1(1)(e): the cumulative effect of the Applicant’s offending can be gleaned from the seriousness of the incident that the victim was subjected to. The victim’s impact statement speaks to the traumatic impact the incident had on her and states that:[26]
“I may not recall the little details of the night but I will never forget the sheer terror of feeling [the Applicant’s] weight on me. I will never forget those words he whispered in my ear. I was in complete shock, a type of surreal numbness I’ve never known. I was frozen, I couldn’t move, I was terrified.
…
I sat at the bottom of [redacted, third party]’s shower breathing heavily down in [redacted, other third party]’s arms. I went to some very dark places inside myself. Suicide was heavy on my mind simply because I was so down and numb. I felt as if death would be not different.”
[26] Exhibit Tr2, TB1, p 3.
It is obvious that such an offence would have a substantial impact on the victim. In the present case, the victim’s impact statement evidences that the impact on her was not only physical, but psychological.
Therefore, I am of the view that the cumulative effects discernible from the commission of the offence, on a cumulative basis, has been serious.
Sub-paragraph 8.1.1(1)(f), (g) and (h): the considerations in these sub-paragraphs are not relevant to the conduct of this Applicant.
Conclusion about the nature and seriousness of the Applicant’s conduct
Upon applying each of the relevant sub-paragraphs contained in paragraph 8.1.1(1) of the Direction, I am satisfied that the evidence before me leads me to the conclusion that the totality of the Applicant’s unlawful conduct in this country has been very serious.
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.
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.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Respondent contends that were the Applicant to re-offend in a similar vein to his past offending, it would potentially cause extreme physical and/or psychological harm to the Australian community.[27] The Respondent’s position is that the Applicant’s conduct has caused significant and lasting emotional and psychological trauma to the victim and her family.[28] Overall, the Respondent contends that the magnitude of the potential harm is such that any risk of recurrence is unacceptable.[29]
[27] Exhibit R1, p 7, para 31.
[28] Exhibit R1, p 7, para 31.
[29] Exhibit R1, p 7, para 31.
The Applicant readily concedes that were he to re-offend in the nature of his previous offending, the potential harm that the Australian community would suffer would be psychological or physical harm.[30]
[30] Exhibit A1, para 33.
It is incontrovertible from the nature of the Applicant’s offending that, were he to engage in further criminal offending in the nature of his past criminal history, such conduct could cause deep physical, psychological and conceivably financial harm to individuals. Further, were the Applicant to re-offend in the same nature as his previous offending, his victims would be highly vulnerable to the emotional impacts caused by such conduct, with potential consequences including mental health issues.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
I now turn to consider the likelihood of this Applicant engaging in further criminal or other serious conduct.
The Respondent submits that there is insufficient evidence to support a conclusion that the Applicant is now rehabilitated[31] and that I should have regard to the following matters:
·The Applicant’s position is that the sole cause of his offending was a combination of it being the first time he had imbibed in alcohol use and his inexperience with the levels of alcohol he had ingested on the night of the incident. In 2020, the Queensland Corrections Service assessed the Applicant’s risk of general reoffending to be 7 out of 20, which is considered a moderate risk of reoffending.[32]
·The Applicant has failed to engage with offence specific courses despite recommendations and offers. A Rehabilitation Needs Assessment assessed that the Applicant had needs in the areas of substance abuse, pro-criminal attitude and sexual offending.[33]
·The impact of alcohol on the Applicant remains unexplored and there is an uncertain risk that he will be impacted by alcohol or other substances in a similar way in the future.[34]
·The Applicant’s remorse and insight should be treated cautiously in circumstances where he previously attempted to downplay the circumstances of his offending and provided inconsistent accounts. The Respondent draws my attention to the fact that the Court observed that the Applicant had taken responsibility for his actions immediately after the incident, but he later downplayed his offending when interviewed by the police.[35]
[31] Exhibit R1, p 7, para 32.
[32] Exhibit R1, p 7, para 32.1
[33] Exhibit R1, p 8, para 32.2
[34] Exhibit R1, p 8, para 32.3
[35] Exhibit R1, p 8, para 32.4
In contrast, the Applicant contends that he is a very low risk of reoffending,[36] and that I should have regard to the following factors:
·There were particular time-specific and contextual factors in relation to his offending that are unlikely to reoccur.[37] His offending comprised a single, isolated incident. The Sentencing Judge characterised the offending as “out of character”.[38]
·There are significant protective factors present that will collectively act to decrease the likelihood of future offending.[39] Relevant to this is several courses the Applicant has completed (which are addressed more fulsomely in the reasons below) and the genuine remorse the Applicant says he has for his actions.[40]
·There are significant deterrent factors including the pain the Applicant says he suffered whilst incarcerated and his contention that he was not previously aware that his visa was capable of being cancelled nor had he received any warnings from the Department.[41]
[36] Exhibit A1, para 63.
[37] Exhibit A1, para 36.
[38] Exhibit A1, para 36.
[39] Exhibit A1, para 37.
[40] Exhibit A1, para 37(e) and (h).
[41] Exhibit A1, para 39.
In addition, the Tribunal was furnished with a clinical forensic psychologist’s report from Dr James Freeman dated 7 May 2024 who also gave oral evidence at the hearing. Dr Freeman’s professional assessment of the Applicant’s recidivistic risk was based on a number of clinical calculations which are as follows:
·Hare Psychopathy Check List (PCL-R): this is a 20-item rating scale, with a score based on both a “semi-structured interview” and collateral information.[42] Dr Freeman’s report says that this test is a popular measure of psychopathy and research has indicated that it is a reasonably accurate predictor of sexual and violent recidivism.[43]
oIn the PCL-R, the Applicant received a total raw score of 2, equating to a percentile rank of 0.7. This was reportedly a score “well below the average prisoner’s ranking” and falls below the cut off raw score of 30 in order to be classified as suffering from psychopathy.[44]
·Sexual Offender Risk Appraisal Guide (SORAG): this is a 14-item instrument used to assess the risk of violent and sexual recidivism of previously convicted sex offenders within a specific period of release. It is based on dynamic and static factors.[45] The Applicant’s SORAG score of -1 reportedly indicates that he can be considered in the “low risk” category.[46]
·Sexual Violence Risk – 20 (SVR-20): this is an actuarial scale of 20 risk factors, such as psychopathy, homicidal ideation, lack of realistic plans and sexual deviation. An exploration of these factors reportedly did not reveal any characteristics of risk factors requiring attention.[47]
[42] Exhibit A3, p 7, para 12.1.
[43] Exhibit A3, p 7, para 12.1.
[44] Exhibit A3, p 7, para 12.3.
[45] Exhibit A3, p 8, para 12.8.
[46] Exhibit A3, p 8, para 12.8.
[47] Exhibit A3, p 8, para 12.9.
Dr Freeman’s clinical summary of the Applicant can be summarised as follows:[48]
·The Applicant has no marked deviant elements of his psychological presentation that can explain the “uncharacteristic offence”.
·The Applicant’s behaviour at the time of the offending is consistent with what is known about younger males who experience difficulties in recognising and responding to risk, which has been linked to the prefrontal cortex that does not fully develop until the age of 25.[49]
·The Applicant does not present with psychopathic tendencies that have been closely linked with sexual recidivism, along with sexual deviancy and criminal versatility.
·The Applicant presents as a pro-social individual and there do not appear to be any outstanding criminogenic needs.[50]
[48] As provided in the “Clinical Summary and Concluding Remarks” section of the Report, see Exhibit A3, p 10-12, para 15.1-15.6.
[49] Exhibit A3, p 11, para 15.2.
[50] Exhibit A3, p 12, para 15.6.
In oral evidence, Dr Freeman stated that the key core predictors for sexual recidivism include sexual deviancy, criminal versatility and previous sex offences. He went on to say that whilst empathy is important, it is not a predictor of re-offending. He was questioned on the fact that the Applicant had not advised him that the victim had told him to stop during the offending and asked whether his opinion on recidivism would be altered with this in mind. Dr Freeman remained firm that recidivism is not affected by minimisation, but by important predictors such as sexual deviancy and anti-social behaviour. He affirmed that minimisation is not a proven predictor of re-offending.
Although much was made by the Respondent in relation to the Applicant’s alcohol use, Dr Freeman made it clear that the Applicant does not have an alcohol disorder, nor substance abuse issues.
Throughout the hearing, the Respondent tested Dr Freeman’s conclusions at length without causing him to alter or reconsider his findings. He confirmed that the Applicant does not suffer from any alcohol or substance abuse and that he accepted his guilt, furthermore, that the recidivist risk assessment is true and accurate.
I note the Respondent’s closing submissions and allegations as to Dr Freeman’s leanings towards the Applicant’s position. I cannot agree with this position as I found Dr Freeman to be both professional and truthful in relation to the evidence he provided this Tribunal, both in written form and orally. I am satisfied with Dr Freeman’s clinical findings which have been of invaluable assistance to my assessment of risk.
Information and evidence on the risk of the non-citizen re-offending including evidence of rehabilitation
While assessing risk, I must have regard to evidence of any rehabilitation undertaken by the Applicant. Based on the material before me, the Applicant has completed a number of rehabilitative courses. These can be summarised as follows:
Course/Program name Completion/relevant date Details Universal Class, “Drug and Alcohol Abuse 101”[51] Certificate of Completion issued 10 April 2024 - Drug ARM, “(24 hour) LISI explore program”[52] Certificate of Completion issued 17 September 2021 - Getting Started: Preparatory Program[53] Start date: 3 November 2020
Completion date: 14 December 2020Completion status noted as “Completed”.
Queensland Corrective Services “Resilience: Build Don’t Break Program”[54] Completion date: 23 June 2022 Blue Knot, National Counselling and Referral Service[55] 20 May 2022 – 21 February 2023 Completion of 12 telephone counselling sessions on 12 separate dates. [51] Exhibit A9.
[52] Exhibit Tr1, G13, p 82.
[53] Exhibit Tr1, G13, p 83-86.
[54] Exhibit Tr1, G13, p 89.
[55] Exhibit Tr1, G21, p 221-222.
Whilst it is admirable that the Applicant has undertaken these courses, the offence was clearly uncharacteristic and fuelled by inexperienced alcohol consumption and immaturity. Despite the fact that the Applicant has completed courses targeted towards drug and alcohol abuse, the evidence before me, including that of Dr Freeman, is clear that the Applicant does not have a drug or alcohol dependency problem. The Applicant’s offending did not arise due to him having a problem with alcohol consumption, but rather the fact that he was a first-time drinker and could not gauge his capacity to control his actions whilst under the influence of those quantities of alcohol.
Assessment of recidivist risk
Based on Dr Freeman’s clinical opinion, this Tribunal is comfortable in finding that the Applicant’s recidivistic risk is in the low category and that the offence was uncharacteristic of the Applicant,[56] proof of which is the fact that the Applicant has no other offending, despite spending considerable time in the community prior to sentencing, as well as consistently engaged in pro-social behaviour. It is evident that the crux of Dr Freeman’s clinical opinion stems from his finding that the Applicant does not display psychopathic tendencies that would give rise to a repetition of the offending behaviour.
[56] Exhibit A3, p 12, para 15.2 and 15.6.
Further, Dr Freeman has drawn my attention to the importance of the various protective factors that are now present, such as the fact that the Applicant is older and more mature and is able to monitor his behaviour and avoid situations of risk that are akin to the situation that gave rise to the offence. Whilst in the community, the Applicant has evidently behaved appropriately and has calibrated his behaviour in a pro-social manner.
For all these reasons, I am led to the conclusion that the Applicant presents a low recidivist risk, and so find.
Conclusion: Primary Consideration 1
With respect to the weight attributable to this Primary Consideration 1, I find:
·The nature and seriousness of the totality of the Applicant’s conduct to date to have been very serious;
·That were the Applicant to re-offend in any aspect of his history, it could give rise to physical, psychological and conceivably financial harm with doubtless long-term adverse mental health results; and
·That in respect of recidivist risk, the Applicant represents a low recidivistic risk.
In considering and analysing all the material before me, I am led to the finding that this Primary Consideration 1 confers a heavy, but not determinative, weight against the revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
I am satisfied, and the parties agree, that this Primary Consideration 2 is not applicable.[57] I allocate neutral weight to this consideration.
[57] Exhibit A1, para 66-67; Exhibit R1, p 9, para 34.
PRIMARY CONSIDERATION 3: STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. Overall, the Applicant contends that this Primary Consideration should weigh strongly in his favour.[58] The Respondent concedes that this Primary Consideration weighs in the Applicant’s favour but says that it does not outweigh the first and fifth Primary Considerations.[59]
[58] Exhibit A1, para 83.
[59] Exhibit R1, p 10, para 42.
There are four requisite considerations to be addressed in paragraph 8.3 of the Direction. I will address each in turn.
On the evidence before me, it appears that the Applicant’s nuclear family for the purposes of Primary Consideration 3, as well as minor children to be considered for the purposes of Primary Consideration 4, are as follows.
Immediate family members:
·AX (the Applicant’s mother);
·CZ (the Applicant’s minor sister);
·The Applicant’s younger minor sister;
·The Applicant’s minor brother; and
·Bina, the Applicant’s grandmother.
Extended family members:[60]
·Benny, the Applicant’s uncle;
·Lina, the Applicant’s “grandma auntie”;
·Some nine cousins;
·Some nine other uncles, aunties and “grandma aunties”.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
[60] See Exhibit A1, para 71, table entitled “Caspa’s close relatives in Australia”.
This sub-paragraph requires me to firstly identify the Applicant’s immediate family in Australia who are citizens, permanent residents or persons who have the right to remain indefinitely in Australia. AX (the Applicant’s mother) is a single parent and a permanent resident, as the Applicant’s father passed away earlier in the Applicant’s life. Further, CZ, the Applicant’s younger minor sister and his minor brother all appear to be permanent residents.[61] Bina is in Australia on a bridging visa.[62]
[61] Exhibit A1, para 71.
[62] Exhibit A1, para 71.
The Applicant contends that AX and CZ would experience emotional, physical and financial hardship should he be removed from Australia, due to the “separation of the family unit”.[63] Both AX and CZ gave evidence before the Tribunal confirming they are aware of the Applicant’s criminal conduct.
[63] Exhibit A1, p 73.
In her statement, AX confirms that the Applicant has played a central role in the family unit, especially with respect to the care for his siblings, both physically and financially:[64]
“Caspa has always been a wonderful son. Before he was in jail [sic] he would help support our family from his wages. I know that he respects me and values me as his mother
…
Caspa is very close with his brothers and sisters, who are all still minors, Before he was put in jail [sic], Caspa would take them to church every week and would often take them to play at a park or something like that.”
[64] Exhibit A2, p 47-48, para 9-10.
AX gave evidence that her husband died some time ago, leaving her with four young children. She was granted a protection visa through which she received permanent residence. She presently works as a cleaner but is heavily reliant on the Applicant for emotional and financial support, given that she has significant and incurable medical issues.[65] She testified that these issues are chronic in nature and that she is often hospitalised. She otherwise requires regular rest due to her ill health. Consequently, the Applicant has played a central role in the day-to-day functioning of the household. Indeed, AX stated the Applicant “plays the man role in my house with children and me … he assists financially”. She went on to state that she had not worked until the Applicant was incarcerated and has since had to do so in order to keep up with the household bills and expenses. It is clear from this evidence that the Applicant’s removal from Australia would be a major disruption to the functioning of this household, with significant financial and emotional distress being conceivable. AX would need to undertake work and raising her three minor children alone, whilst simultaneously seeking ongoing treatment and support for her chronic medical issues.
[65] See Exhibit A8, medical certificate of Dr Saji Manuel confirming that AX is suffering from chronic medical issues for which she is on “life-long treatment”.
CZ confirmed the evidence of her mother and went on to further state that the Applicant plays a pivotal role, not only as her brother, but as the man of the house on whom she and her siblings rely for financial and emotional support. Her statement speaks to the impact the Applicant’s departure would have on her:[66]
“If Caspa gets deported it would be devastating for us as Caspa’s young siblings, Caspa is the only older brother who we have loved so much in our heart. To lose our brother who is a father figure as well.
…
As Caspa little siblings who saw him as and [sic] father and brother at the same time all were left broken-hearted, shattered and hopeless …
…
To be honest I don’t see my life going any further with him not being here with me … [h]is presence in our lives is irreplaceable, providing emotional support, guidance, and stability.”
[66] Exhibit A2, p 45, para 8-12.
The Tribunal also received a statement from Bina, the Applicant’s grandmother. She is presently in Australia, having resided in Australia since 2021. Her statement confirms that, as she lacks the support of a husband, the Applicant’s care of the household and his family members has also extended to her.[67]
[67] Exhibit Tr1, G15, p 134.
The evidence of both AX and CZ confirms the important and pivotal role the Applicant plays within the family unit, which is further underpinned by the death of his father and the ill-health of his mother, requiring him to assume the male parental role for his younger siblings. Clearly, were the Applicant required to leave Australia, it is unquestionable that his immediate family would suffer emotionally, financially and conceivably psychologically. Therefore, I find that considerable weight applies in the Applicant’s favour due to the above considerations.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to a child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
This element in Primary Consideration 3 requires a determination of whether more weight should be given to the Applicant’s ties to Australia where he has Australian citizen biological children. The Applicant does not have any biological children.
The relevant children who are Australian permanent residents are CZ, the Applicant’s younger minor sister and the Applicant minor brother. I have considered the impact this decision will have on them above and will deal with them more fulsomely when I consider their best interests with respect to Primary Consideration 4. With respect to the Applicant’s ties, the presence of these minor children evidences the Applicant’s important presence in his family’s household, as detailed above. I re-iterate that the Applicant plays a strong male parental role in the upbringing and care of his siblings which warrants the allocation of substantial weight.
Paragraph 8.3(3): Strength, nature and duration of ties with any family or social links generally
The Applicant enjoys strong familial and social links in Australia by virtue of him having been born here and having spent a significant part of his life here. In addition to the evidence mentioned above, the Tribunal was furnished with statements from the Applicant’s uncle, Benny, which speaks generally about the Applicant’s role within his family and affirms that he is “a good role model for his sibling and community”.[68]
[68] Exhibit A2, P 41-42.
It is clear from the evidence that the Applicant has limited family remaining in PNG. Those family members consist of his mother’s brother and family and his maternal grandfather. On the evidence, the Applicant does not share strong links with these family members, nor is it the case that they could provide him with any assistance with accommodation or support were he required to leave Australia. The Applicant’s extended family members are all in Australia and include two aunts who also provided statements to this Tribunal,[69] in support of the familial links they have with their nephew, the Applicant.
[69] See Exhibit Tr1, G15, p 140-141 and 144-145.
In addition, Justin Humphrey gave evidence of his social ties to the Applicant, dating back to 2018. His evidence was that he and the Applicant enjoy close social ties, visiting each other regularly.
The Tribunal also received numerous statements, references and letters of support from the Applicant’s family friends and other associates.[70] These include people from the PNG community in Australia[71] and members of the Applicant’s church community.[72] They attest to the fact that the Applicant has formed significant social circles during his time in Australia and that he plays an important role within the local PNG community here. These links are not insubstantial and have arisen out of deep ties that the Applicant has forged over time. Based on the substantial family and social links the Applicant enjoys in Australia, a considerable amount of weight should be allocated in the Applicant’s favour under this subparagraph and I so find.
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
[70] See Exhibit Tr1, G15.
[71] See Exhibit Tr1, G15, p 123-124; 129-130
[72] Exhibit Tr1, G15, 138-139.
This component of Primary Consideration 3 requires me to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements:
(a)whether the Applicant has been ordinarily resident here during his formative years;
(b)whether the Applicant has positively contributed to the Australian community during his time here; and
(c)can the weight be allocable to the strength of the Applicant’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here.
The term “formative years” is undefined in the Act but is generally regarded as the years between five and 18.[73] The Applicant has resided in the Australian community from the age of 17 and has completed the final two years of his schooling here. Therefore, the Applicant has spent a portion, albeit the latter portion, of his formative years here. Accordingly, I am directed to ascribe “considerable weight” to the fact that the Applicant has resided in Australia during, and since, his formative years.[74]
[73] Exhibit A1, para 78; Mohmmad Azam Khan v Minister for Immigration and Ethnic Affairs [1994] FCA 955.
[74] Direction 99, para 8.3(4)(a)(i).
Following his completion of secondary school in Australia, the Applicant has positively contributed to the Australian community through his involvement and connection with the Seventh Day Adventist community. In addition, he commenced work and an apprenticeship in the field of mechanics with Toyota.[75] Accordingly, I ascribe weight in the Applicant’s favour, given these contributions.
[75] Exhibit Tr1, G14, p 106.
In relation to subparagraph 8.3(4)(a)(iii), the weight I allocate in the Applicant’s favour cannot be reduced due to him having spent a portion of his formative years here.
Conclusion: Primary Consideration 3
In applying the relevant components of Primary Consideration 3 to the evidence and facts before me, I find that the Applicant has substantial and deep-rooted familial and social ties in Australia. The predicament of his immediate family, including the substantial health issues faced by his mother, is an important feature in this case. The stark reality is that if the Applicant was deported, his mother and minor siblings would suffer emotional and financial hardship. Therefore, I find that the evidence, in its totality, leads me to a finding that this Primary Consideration 3 is of heavy weight in favour of exercising the power to revoke the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
I must determine whether the non-revocation of the Applicant’s visa would be in the best interests of minor children in Australia that would be affected by the decision (per paragraph 8.4(1) of Direction 99). This primary consideration only applies with respect to children under the age of 18 years at the time of the decision (paragraph 8.4(2) of Direction 99).
In the circumstances, the relevant minor children include those stipulated above, but I will transpose them again here for completeness. These are CZ, the Applicant’s younger minor sister and the Applicant’s minor brother. The material before me also identifies other minor children including his minor cousins (aged 14, 12 and 10 years),[76] as well as the four minor children identified in the Applicant’s Statement of Facts, Issues and Contentions,[77] and some seven cousins who the Applicant says are in their teens.[78]
[76] See Exhibit Tr1, G15, p 126.
[77] Exhibit A1, para 71.
[78] Exhibit Tr1, G21, p 204.
The key element of this consideration in the instant case is the relationship the Applicant has with his siblings. The Respondent says that less weight should attach in the Applicant’s favour for the following reasons:[79]
·The Applicant has been in gaol and immigration detention since 2020, being a long period of absence;
·The children live with their mother who fulfills the parental role;
·CZ will turn 18 in two years’ time and the Applicant is unlikely to play a positive role in the future; and
·There is no independent evidence of the effect any separation would have on the children.
[79] Exhibit R1, p 10-11; para 44.
Overall, the Respondent contends that, should I find that this Primary Consideration weighs in the Applicant’s favour, it does not outweigh the first and fifth Primary Considerations.[80]
[80] Exhibit R1, p 11, para 47.
Conversely, the Applicant has pointed out the following features of the Applicant’s presence as the eldest male in his family:[81]
·AX is a single mother;
·AX has considerable health requirements, including the need for physical assistance; and
·The Applicant views himself as a protector and provider for his family, given the absence of a father.
[81] Exhibit A1, para 85.
The Applicant highlights that he has acted in a positive parental role for his siblings since his arrival in Australia right up to his incarceration.[82]
[82] Exhibit A1, para 86.
It is difficult to quarrel with the Applicant’s contention that he plays a parental role with respect to his minor siblings. The Tribunal heard cogent evidence from AX detailing the chronic nature of her illness and how dependent she is on the Applicant for support. Further, CZ gave evidence that the Applicant’s presence is needed at home due to there not being a father figure. Despite the fact that the Applicant has been separated from his family due to his incarceration and detention, it is clear that, should he return to the community, he would resume his parental role within the family unit. It is difficult to envision how this pivotal role the Applicant plays within his nuclear family could be successfully undertaken remotely. Given these factors, I am led to a finding that this subparagraph warrants an allocation of a substantial amount of weight in the Applicant’s favour.
With respect to the remaining relevant minor children, I agree with the Respondent’s position that lesser weight should ascribe to them because they either appear to be adequately cared for by another family member or because there is insufficient information with respect to them. Furthermore, there is nothing to suggest that the Applicant plays a parental role in the lives of these other minor children. Consequently, only a minor amount weight can apply in the Applicant’s favour.
Conclusion: Primary Consideration 4
Given that I have found that the Applicant plays a parental role with respect to his three minor siblings, I am of the view that the best interests of the minor children would be served with an allocation of a heavy weight in favour of the revocation of the mandatory cancellation of the Applicant’s visa, and I so find.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
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.[83] The Direction further explains:
“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.”[84]
[83] Paragraph 8.5(3) of the Direction.
[84] 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.
This Applicant has breached the Australian community’s expectations by the nature of his criminal offending in this country. Therefore, the Australian community, “as a norm” expects the Australian Government not to allow him to remain in Australia.
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:[85]
(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.
[85] Paragraph 8.5(2) of the Direction.
The Applicant’s offending falls squarely within the parameters of subparagraph (c) above, as an offence committed against a woman. As such, the Australian community would expect that the Australian Government can and should cancel the Applicant’s visa.
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(4), (5) and (6) 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;
(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;[86]
(c)Australia will generally 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 lives or from a very young age;[87]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;
(e)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;[88] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[86] Paragraph 5.2(4) of the Direction.
[87] Paragraph 5.2(5) of the Direction..
[88] Paragraph 5.2(6) of the Direction.
In relation to sub-paragraph (a) above, the term “limited stay” is not defined in the Act. In the present case, the Applicant held a Child (Class AH) (Subclass 101) visa which cannot be categorised as a limited stay visa for the purposes of the Act.
In relation to sub-paragraph (b) above, the Applicant has spent part of his formative years in Australia and has contributed socially and financially to the Australian community through activities within his church group, his contributions to the PNG community in Australia and through his employment.
With respect to sub-paragraph (c), despite the fact that the Applicant was born in Australia and spent a portion of his formative years here, it is difficult to maintain an argument that the Applicant has spent most of his life in Australia, having returned here on a permanent basis when he was 17 years of age. Therefore, no consideration will be made in respect of this aspect of the subparagraph.
With respect to sub-paragraph (d), as mentioned previously in this Decision, the Applicant has spent a partial component of his formative years in Australia, hence some tolerance can be allocated underpinned by this consideration.
With respect to (e), it is unquestionable that the offence was very serious in nature, however, there are other countervailing factors which operate in favour of the Applicant’s position.
With respect to (f), the Applicant’s offending clearly falls within the provisions of subparagraph 8.5(2)(c).
Conclusion: Primary Consideration 5
The nature of the Applicant’s offending confirms that the expectations of the Australian community, at first glean, would be a finding against the revocation of the mandatory cancellation of his visa, based on the fact that the offending triggered the operation of 8.5(2)(c) coupled with the seriousness of the offence generally. However, this is countervailed by the Applicant’s time in Australia, including a portion of his formative years here and the notable contributions that he has made to the Australian community. These countervailing factors are such that they provide some assistance to the weight to be allocated with respect to this Primary Consideration 5. Therefore, Primary Consideration 5 confers a heavy, but not determinative, level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
Per paragraph 9.1(1) of the Direction, decision-makers must be mindful that unlawful non-citizens are liable to removal from Australia as soon as practicable, and in the meantime, detention. I acknowledge that in the event of a non-revocation decision, the Applicant will be liable to removal from Australia as soon as reasonably practicable and will not be able to apply for another visa while in Australia with the exception of a protection visa.[89]
[89] Ss 189, 198 and 501E of the Act; Exhibit R2, p 13, para 47-49.
Subparagraph 9.1.2(1) of the Direction provides that if a non-citizen raises non-refoulement claims, the decision-maker must consider them:
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
Subparagraph 9.1.2(2) provides further guidance on the consideration of non-refoulement claims and in circumstances where the decision-maker can proceed on the basis that such claims would be assessed if the person applies for a protection visa:
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non- refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non- refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether nonrefoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
In LRMM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration),[90] this Tribunal considered the extent to which it is obliged to consider such claims under this Primary Consideration:
[90] [2023] AATA 3162 (6 October 2023).
[196] On 11 May 2022, the High Court of Australia – in its decision of M1/2021 v Minister for Home Affairs[219] (‘Plaintiff M1’) turned its mind to the question of whether a decision-maker can, ‘defer’ consideration of Australia’s non- refoulement obligations to a future date or event, such as if the Applicant were to apply for a Protection visa. Prevailing authority militated against any such deferral by a decision-maker even in circumstances where an Applicant were able to seek a Protection visa.
[197] The approach formulated by the High Court in Plaintiff M1 was expressed thus:
‘Decision-makers' approach to non- refoulement
[28] Where the representations do not include, or the circumstances do not
suggest, a non- refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non- refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
[29] Where the representations do include, or the circumstances do suggest, a non- refoulement claim by reference to unenacted international non- refoulement obligations, that claim may be considered by the decisionmaker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non- refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non- refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.’
[202] I am satisfied that Plaintiff M1 makes it possible for this Tribunal to defer any consideration of whether this Applicant is a person to whom Australia may owe nonrefoulement obligations. Be that as it may, I am of the view that this Tribunal should nevertheless engage with the substance of the Applicant’s representations if, for no other reason, than they may be relevant to the exercise of finding another reason why the mandatory cancellation of his Visa should be revoked.
The Applicant claims that if he were to be returned to PNG, as a member of the Sikin Tribe native to the Wapenamanda District of Enga Province, he would be at risk of being implicated within the inter-tribal conflict this tribe is currently involved in. The Applicant derives his affiliation with this tribe through his late father, as tribal identification is patrilineal in PNG culture.[91]
[91] Exhibit A1, para 114.
The Applicant specifically claims that he is someone to whom Australia holds non-refoulement obligations under the 1951 Convention Relating to the Status of Refugees (Refugees Convention).[92]
[92] Exhibit A1, para 115.
The Applicant has provided very comprehensive submissions with respect to tribal violence in PNG and the potential harm that he says would be visited upon him were he to be deported. This includes excerpts of reports from the Department of Foreign Affairs and Trade, the United States State Department and the World Bank.[93] I have had regard to these submissions and have duly considered them.[94] Further, AX also gave evidence that she fears the Applicant would be subject to tribal harm if returned to PNG on account of him being male and due to his family lineage.
[93] Exhibit A1, 113-129.
[94] See also Tr1, G18, p 171-184.
Overall, the Applicant’s position is that having regard to the evidence, it is open for this Tribunal to reach a level of satisfaction that the Applicant’s claims would likely be found to engage Australia’s obligation with respect to non-refoulment. The Applicant submits that consequently, I should grant “high weight” in his favour with respect to this consideration.[95]
[95] Exhibit A1, para 130.
The Respondent has also provided submissions with respect to this Other Consideration. It is the Respondent’s position that the subject visa is not a protection visa as defined by the Act nor is there evidence that the Applicant has previously applied for a protection visa, which would allow him to remain in Australia pending the determination of an application for a protection visa.[96]
[96] Exhibit R1, p 13, para 57; Direction 99, para 9.1(2); s 198(2)(c)(i) of the Act.
The Respondent drew my attention to Plaintiff M1/2021 v Minister for Home Affairs (Plaintiff M1),[97] where the majority held that, in deciding whether there was another reason to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4)(b)(ii) of the Act, where the Applicant was able to lodge an application for a protection visa:[98]
·The delegate was required to read, identify, understand and evaluate the representations made in response to the invitation issued to the Applicant under s 501CA(3)(b) that raised a potential breach of Australia’s international non refoulement obligations;
·Australia’s international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and
·to the extent Australia's international non refoulement obligations are given effect in the Act, one available outcome for the delegate was to defer assessment of whether the applicant was owed those non-refoulement obligations on the basis that it was open to the applicant to apply for a protection visa under the Act.
[97] [2022] HCA 17, 96 ALJR 497 at [9].
[98] Exhibit R1, p 14, para 58.
As such, the Respondent contends that a decision-maker is entitled to defer assessment of whether the Applicant is owed non-refoulement obligations, on the basis that it is open for him to apply for a protection visa. However, in doing so, it is nevertheless necessary for the decision-maker to take account of the alleged facts underpinning the claim, where such facts are relied upon by an applicant for there being “another reason” why the cancellation decision should be revoked.[99]
[99] Exhibit R1, p 14, para 59-60.
Overall, the Respondent submits that, after I have “read, identified, understood and evaluated the Applicant’s claims on non-refoulement obligations”, I should decline to make an assessment of whether the Applicant is owed such obligations, given that the Applicant has not lodged a protection visa application with the Department.[100]
[100] Exhibit R1, p 15, para 62.
I have considered the extensive submissions provided by both parties with respect to this Other Consideration and in particular the evidence received throughout the hearing in respect to the tribal and ethnic in-fighting in PNG.
I do not consider that the Tribunal is in an optimal position to make a finding with respect to the protection needs that may be required by the Applicant. The Applicant is still at liberty to apply for a protection visa and, in the event that he does, that application would be the appropriate course to have his claims comprehensively assessed. Therefore, I am of the view, and so find, that Other Consideration (a) carries neutral weight in the instant case.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 24 years old and does not appear to suffer from any mental or physical health conditions.[101] He concedes that neither (a) nor (b) are relevant barriers to his resettlement in PNG.[102] That then leaves subparagraph (c), namely the social, medical and/or economic support available to the Applicant in PNG.
[101] Exhibit R1, p 16, para 67; Exhibit Tr1, G16, p 163.
[102] Exhibit A1, para 132.
Unarguably, the social, medical and/or economic conditions in PNG are far inferior to those available to Australian citizens and residents. I accept that the Applicant would experience some difficulties in adjusting to life in PNG, after having spent all of his adult life in Australia. I also accept that he would suffer a degree of emotional hardship as a result of being separated from his mother and siblings.[103] In respect to any financial hardship the Applicant may experience in PNG, any level of hardship experienced by his re-adjusting to life in PNG may well only be temporary until such time as he is able to establish himself to a standard of living commensurate to that available to other citizens of PNG. The Applicant has acquired mechanical skills in Australia which presumably he would be able to draw upon when seeking employment in PNG.
[103] Exhibit A2, 134.
However, as mentioned previously, I accept the Applicant does not enjoy strong family links in PNG and that he cannot rely on the support and assistance of the few family members left there, due to their dire economic situation. Naturally, these factors will undoubtedly cause the Applicant some level of re-settlement hardship until such time as he is able to secure gainful employment.
Findings on impediments
Considering the impact the Applicant would sustain if removed to PNG, I am of the view, and find, that Other Consideration (b) confers a moderate level of weight in favour of revocation of the mandatory cancellation of the Applicant’s visa.
Other Consideration (c): Impact on victims
Neither party has agitated the relevance of this Other Consideration (c). I do not view it as relevant and treat it neutrally.
Other Consideration (d): Impact on Australian business interests
Paragraph 9.4(1) mandates that an assessment be undertaken on the impact on Australian business interests the removal of the Applicant would have. Paragraph 9.4(1) stipulates that evidence with respect to an employment link would generally only be given weight where a non-revocation decision would significantly compromise the delivery of a major project, or of an important service in Australia.
The Applicant raised that he was pursuing an apprenticeship as an automotive mechanic in the context of this Other Consideration and that the letter of support indicates that the Applicant’s former employer would be more than willing to re-engage the Applicant in employment.[104] The Applicant goes on to raise that the Australian labour market is estimated to experience a shortage of around 40,000 automotive technicians.[105] Whilst the Applicant concedes that his automotive mechanical skills do not rise to the level of a major project, he says it is nevertheless open to the Tribunal to ascribe a low weight in the Applicant’s favour due to the delivery of an important service.[106]
[104] Exhibit A1, para 140.
[105] Exhibit A1, para 141.
[106] Exhibit A1, para 143.
It is the Respondent’s position that the Applicant is unable to establish any employment link. Based on the material before me I must agree that the letter purported to be an offer of employment is merely a letter of support which does not constitute a clear and definitive offer of employment. Regardless of this, it is difficult to find that the Applicant’s work experience would trigger the operation of this Other Consideration. Accordingly, I allocate neutral weight to this Other Consideration.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·Legal consequences of the decision: is of neutral weight;
·extent of impediments if removed: is of moderate weight in favour of revocation of the mandatory cancellation of the Applicant’s visa;
·impact on victims: is of neutral weight; and
·impact on Australian business interests: is of neutral weight.
CONCLUSION
Pursuant to s 501CA(4)(b) of the Act, there are two alternate conditions for exercising the power to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether I am satisfied if there is another reason to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: weighs heavily, but not determinatively, against revocation of the mandatory cancellation.
·Primary Consideration 2: weighs neutrally.
·Primary Consideration 3: weighs heavily in favour of revocation of the mandatory cancellation.
·Primary Consideration 4: weighs heavily in favour of revocation of the mandatory cancellation.
·Primary Consideration 5: weighs heavily, but not determinatively, against revocation of the mandatory cancellation.
I have found that the combined weights I have allocated to Primary Considerations 3 and 4 and Other Consideration (b) respectively, are sufficient to outweigh the combined weights I have allocated to Primary Consideration 1 and 5.
A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours setting aside the Respondent’s decision under review made on 6 March 2024.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision made by the Respondent’s delegate dated 6 March 2024 is set aside and substituted with a decision that pursuant to subsection 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) the mandatory cancellation of the Applicant’s visa is revoked..
I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Member A. Julian-Armitage.
...............[SGD]........................
Associate
Dated: 13 June 2024
Date of Decision: 30 May 2024
Date of Hearing: 15 May 2024, 16 May 2024
Solicitor for the Applicant: Mr Simon Mason, Vocare Law
Representative for the Respondent: Mr James Byrnes of Counsel, instructed by Sparke Helmore
ANNEXURE A – EXHIBIT REGISTER
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED A1. Statement of Facts, Issues and Contentions A 02/05/2024 A2. Applicant Bundle of Documents 02/05/2024 A3. Forensic Psychologist’s Report 07/05/2024 08/05/2024 A4. Serco detention case note - 28/03/2024 A5. Statement of Applicant from 7 April 2024 07/04/2024 10/04/2024 A6. Statement of AX from 8 April 2024 08/04/2024 A7. Statement of Justin Humphrey from 8 April 2024 A8. Medical certificate of Dr Manuel - A9. Universal Class Certificate – Drug and Alcohol 101 A 10/04/2024 A10. Applicant Closing A 17/05/2024 A11. Applicant Reply to Respondent’s Closing A 20/05/2024 R1. Statement of Facts, Issues and Contentions R
09/05/2024 R2. Respondent Closing 20/05/2024 Tr1. Section 37 G-Documents - 19/03/2024 Tr2. Tender Bundle - 09/05/2024
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