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

KWBF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 132 (5 January 2022)
Division:GENERAL DIVISION
File Number: 2021/7806
Re:KWBF
APPLICANT

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

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:5 January 2022
Date of written reasons: 2 February 2022
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides not to exercise the discretion under section 501(1) of the Migration Act 1958 (Cth) to refuse to grant the applicant a Bridging E (Class WE) visa.
...[sgd]....................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – refusal of visa on character grounds – citizen of Papua New Guinea – Bridging E (Class WE) visa – Applicant does not pass the character test – whether there is another reason the visa should not be refused on character grounds – consideration of primary and other considerations – Direction 90 – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842
FYBR v Minister for Home Affairs [2019] FCAFC 185.
PYDZ v Minister for Immigration, Citizenship. Migrant Services and Multicultural Affairs [2021] FCA 1050
Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
Secondary Materials
Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Department of Foreign Affairs and Trade, DFAT Country Information Report Papua New Guinea, Report (10 February 2017)
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
2 February 2022
INTRODUCTION

This matter involves an expedited review of a decision of a delegate of the respondent made on 13 October 2021 to refuse to grant the applicant a Bridging E (Class WE) visa (the “visa”) pursuant to section 501 of the Migration Act 1958 (Cth) (the “Act”).
The Tribunal heard the matter on 20, 21 and 24 December 2021. Mr Siva Valliappan appeared as legal representative for the respondent. The applicant was unrepresented.
On 5 January 2022, the Tribunal set aside the decision under review and in substitution decided not to exercise the discretion under section 501(1) of the Migration Act 1958 (Cth) to refuse to grant the applicant a Bridging E (Class WE) visa. Set out below are the written reasons for the Tribunal’s decision.
BACKGROUND
The applicant is a 28-year-old citizen of Papua New Guinea who first arrived in Australia on 13 November 2019 as the holder of a Visitor (Class FA) (subclass 600) visa (“visitor visa”). On 31 January 2020, the applicant returned to Papua New Guinea for approximately four weeks before returning to Australia on 26 February 2020. The applicant was granted a further visitor visa on 5 August 2020 which was valid until 5 February 2021.
At the time of his return to Australia, the applicant was in an intimate relationship with an Australian citizen, Ms N. The applicant and Ms N were initially residing together in Victoria however because of the lockdown associated with the COVID-19 pandemic, they subsequently lived together for an extended time at a caravan park in New South Wales. At that time Ms N had one child, M, who was approximately one year of age. The applicant is not the biological father of M, although the Tribunal accepts the applicant’s evidence together with that of Ms N that the applicant has assumed a parenting role in respect of M.
On 26 October 2020, the applicant was taken into custody as a consequence of an incident involving Ms N. The applicant subsequently pleaded guilty to and was convicted in the Local Court of New South Wales of Assault Occasioning Actual Bodily Harm (DV) for which he was sentenced to time already served, being five months and one day. Following his release from prison the applicant was taken into immigration detention. While in detention Ms N gave birth to her second child, D. The applicant is D’s biological father.
The applicant grew up in a remote area of Papua New Guinea near the town of Wabag in Enga province as a member of the Kala tribe. The applicant told Tribunal that because of civil and political unrest and the cultural practice of “payback”, the applicant’s family had facilitated his travel to China where the applicant studied aeronautical engineering for approximately two years. The applicant told the Tribunal that as a consequence of financial difficulty the family suffered, they were no longer able to afford his education in China and therefore he returned to Papua New Guinea. The applicant stated that on his return to Papua New Guinea it had been his intention to travel on to Australia to spend time with Ms N who he had met online. The applicant told the Tribunal that he subsequently travelled to Australia where he spent time with Ms N and commenced living with her. The applicant told the Tribunal that the couple then decided to make the relationship permanent and as a consequence he felt a cultural obligation to return to Papua New Guinea in order to seek the blessing of his parents. The applicant told the Tribunal that during this return visit to Papua New Guinea he remained in Port Moresby because of his ongoing concern for his safety in his home village. After visiting Papua New Guinea for approximately four weeks the applicant returned to Australia where he continued to live with Ms N until the time of his arrest.
Following his arrest, on 12 February 2021, the applicant lodged an application for a Protection (Class XA) (Subclass 866) (“protection visa”).
On 14 April 2021, the applicant lodged an application for a Bridging (class WE) (Subclass 050). On 19 April 2021 a delegate of the respondent refused to grant the bridging visa on the basis that the delegate was not satisfied that the applicant would comply with conditions of the visa. The applicant sought review of the delegate’s decision with the Administrative Appeals Tribunal (“AAT’) and on 26 April 2021 a member of the AAT affirmed the delegate’s decision.
On 28 June 2021, a delegate of the respondent decided to refuse to grant the protection visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia owed protection obligations in accordance with the Act. The applicant subsequently sought review of that decision in the AAT and on 8 September 2021 a member of the AAT affirmed that decision.
On 21 July 2021, the applicant lodged a further application for a bridging visa for the purpose of allowing the applicant to remain in the community while seeking further review of the protection visa refusal. On 24 August 2021, the applicant was served with a notice of intention to consider refusal of the bridging visa under section 501 of the Act.
On 8 September 2021, the applicant completed a personal circumstances form in response to the notice. The applicant stated in his response form that he had sought an extension of time to lodge a further review of the decision to refuse a protection visa in the Federal Court and was seeking further legal advice in relation to such a review.
On 13 October 2021, a delegate of the respondent decided to refuse to grant the bridging visa under section 501 of the Act.
On 23 October 2021, the applicant lodged an application for merits review of that decision which is the matter before this Tribunal.
LEGISLATIVE FRAMEWORK AND ISSUES TO BE DETERMINED
The Act sets out the legislative provisions relevant to the issues to be determined by the Tribunal in relation to this matter.
Under section 501(1) of the Act, a non-citizen such as the applicant may be refused a visa if they do not satisfy the decision-maker (in the present circumstances the Tribunal) that they have passed the character test. The relevant character test is set out in section 501(6) of the Act.
For the reasons set out in more detail below, the Tribunal is not satisfied that the applicant passes the character test for the purpose of section 501(1) of the Act by reason of section 501(6)(d)(i) of the Act. More specifically, the Tribunal is satisfied that while the risk of the applicant reoffending again in a similar manner is low it is not so minimal or remote as to be readily dismissed as a risk and therefore, in the Tribunal’s view, the terms of section 501(6)(d)(i) are met.
As the Tribunal is not satisfied that the applicant passes the character test, the remaining issue for the Tribunal to determine is whether to exercise its residual discretion under section 501(1) to refuse to grant the applicant’s visa.
Section 499 of the Act provides the Minister with the power to make and give directions to individuals exercising powers under the Act. A person exercising such power (including the Tribunal) must comply with such direction.[1]
[1] See section 499 (2A) of the Act.
On 8 March 2021, the Minister issued Direction No 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA – in accordance with section 499 of the Act (the “Direction”). The Direction came into effect on 15 April 2021.
The Tribunal accepts that the Direction is consistent with the Act and the Tribunal has therefore applied the Direction in making its decision in this matter.
Paragraph 5.2 of the Direction sets out guiding principles for decision-makers the exercise of the discretion as follows:
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.
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 measureable 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-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 8.4(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 measureable risk of causing physical harm to the Australian community. Paragraph 7 of the Direction sets out guidance in relation to the manner in which relevant considerations are to be taken into account as follows:
While the Direction provides that primary considerations should generally be given more weight, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration where the Tribunal considers it appropriate to do so.[2]
CONSIDERATION
[2] Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68, 75–76 [42]; [2011] FCA 1303.
Primary considerations
Paragraph 8 of the Direction lists the primary considerations as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
Protection of the Australian community
Paragraph 8.1 of the Direction provides that:
1When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
2Decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
The Tribunal is satisfied that the National Criminal History report in respect of the applicant included in the Tribunal materials is accurate. The report notes that the applicant was convicted of Assault Occasioning Actual Bodily Harm in the Local Court of New South Wales on 26 March 2021 (the “assault offence”). The applicant was sentenced to time already served for the offence, being five months and one day.
There is no evidence before the Tribunal of the applicant having committed any other criminal offence.
The applicant’s assault offence occurred in connection with an incident involving his partner Ms N. Based on the description given by the Sentencing Judge, which the applicant accepted as being accurate, together with the applicant’s direct evidence at the hearing, the offending can be summarised as follows:
(a)at the time of the incident, the applicant and Ms N had been in an intimate relationship for approximately one year and were at the time residing together at a caravan park in New South Wales;
(b)the victim, Ms N, was approximately three months pregnant at the time. Also present in the caravan at the time was Ms N’s firstborn child M who was approximately eight months of age.
(c)during the evening the applicant commenced consuming beer and by the conclusion of the drinking session had consumed approximately 10 to 12 cans of beer;
(d)late in the evening Ms N overheard the applicant speaking loudly on the phone to someone in the bathroom. Ms N approached the applicant in the bathroom and observed him engaged in a video call with an unknown female and a verbal argument ensued;
(e)the applicant closed the bathroom door;
(f)the verbal argument escalated into a physical altercation;
(g)Ms N pulled on the shirt of the applicant and the applicant threw several punches connecting with the victim’s face, one on each side of the cheek and one connecting with the nose and mouth, causing minor bleeding. Ms N felt immediate pain and attempted to scratch the applicant’s face. To prevent this from happening the applicant pushed Ms N in the neck area to create distance. During the altercation Ms N fell and hit her head on the toilet bowl. Ms N felt pain to the back of the head and began to feel dizzy; and
(h)while Ms N was on the floor, a witness entered the caravan and assisted Ms N in removing her from the situation and taking her to hospital for assessment and treatment.
The applicant was subsequently charged and pleaded guilty to the offence. There was also initially a second charge which was ultimately withdrawn.
In sentencing, the Sentencing Judge noted that the applicant had pleaded guilty at a relatively early stage. The Sentencing Judge also noted that the applicant stated that he was intoxicated at the time, that he had been assessed as a low risk of reoffending but that the offence “crosses a threshold, it is quite a high level of violence in the circumstances”.
In the Tribunal’s view the applicant’s offending is very serious. In forming this view the Tribunal has had careful regard to the nature of and circumstances surrounding the offence including that the offending involved an act of a violent nature against Ms N and occurred in a domestic relationship setting, thereby constituting an act of family violence. The Tribunal has also had regard to the fact Ms N was approximately three months pregnant at the time of the offending. The offending also resulted in a term of imprisonment which further reinforces the seriousness of the conduct.
The Tribunal notes that the applicant’s assault offence is the applicant’s only criminal offence and that there is therefore no issue of a frequency of offending or a trend in increasing seriousness of offending or the cumulative impact of repeat offending.
Risk to the Australian community
As referred to above, in sentencing comments the Sentencing Judge noted that a risk assessment had been undertaken for the purpose of sentencing and had rated the risk of the applicant reoffending again as being low. However, the Sentencing Assessment included in the materials notes the risk assessment as being “low-medium”. The corrective services records before the Tribunal also note an assessment that the applicant is a low risk of harm to others.
As previously noted, the assault offence is the applicant’s only criminal conviction. There was a reference in the police report to earlier disagreements between the applicant and Ms N, although in their direct evidence to the Tribunal both the applicant and Ms N denied that any of their prior disagreements had escalated into violence. The police report also made reference to an allegation by Ms N that the applicant had previously thrown a bottle at her. However, in her direct evidence, Ms N denied this. She told the Tribunal that she had been angry and frustrated at the time of the assault offence and that she told the police the applicant had previously thrown a bottle because she wanted the applicant to be punished but that it was not a true statement. Ms N told the Tribunal that the applicant had never previously hurt her and that he was not a violent man and she was not in any way concerned for her safety. When asked about the existence of an apprehended violence order (“AVO”) against the applicant she told the Tribunal that it had been put in place in response to the assault offence and that she had had attempted to have it revoked and believed that it had either been revoked or amended to allow the applicant to live with her if released.
The Tribunal accepts the applicant’s and Ms N’s evidence in this respect. More specifically, the Tribunal is satisfied that the assault offence is the only act of violence that the applicant has committed against Ms N. The Tribunal is also satisfied based on the material before it that the AVO that was previously in place has been amended to allow the applicant to reside with Ms N and the children should he be released back into the community.

There was also evidence of an altercation between the applicant and a number of other young men in connection with an incident that occurred in Port Moresby, Papua New Guinea, in 2016. The respondent contends that the incident is another example of the applicant engaging in violent behaviour and should be considered to add to the level of risk of the applicant engaging in violent behaviour again if released back into the community in Australia. In his direct evidence to the Tribunal, in explaining the incident, the applicant stated that he had been approached by a number of young men in Port Moresby who knew him from his home village in Enga province. The applicant told the Tribunal the young men began punching him as payback for the political views of his father. He told the Tribunal he punched back but in self-defence. He told the Tribunal that the police were not involved and there were no charges as a result of the incident. The Tribunal found the applicant’s explanation for the incident to be consistent and credible and accepts his evidence in this respect.
The corrective services records include multiple references to the applicant being of good behaviour while in custody noting that the applicant appeared to mix well with other inmates and showed respect for officers. The applicant attended a bible studies group as well as church services regularly and worked as a prison cleaner for a time for which he was commended for completing his duties to “a high standard”.
There were also a number of personal references included in the Tribunal materials which describe the applicant as being good natured and mild mannered and expressing surprise that the applicant committed the assault offence.
Both the applicant and Ms N told the Tribunal that they believed that the assault offence was out of character for the applicant and was largely attributable to the excessive alcohol the applicant consumed on the night in question. In her direct evidence, Ms N told the Tribunal that: “the alcohol got to him”; “he is a loving person”; and “he is a loving father. He treats me well. It was just that one time”. Ms N expressly denied that the applicant had ever previously engaged in violence against her, and she was confident he would not do so again. Ms N told the Tribunal that she wants to be with the applicant, to live with him and to jointly raise the children together.
The Tribunal is satisfied that the assault offence was very much out of character for the applicant and that the applicant is not a violent person by nature. The Tribunal is also satisfied that the applicant has not otherwise engaged in violent behaviour that should in any way elevate the Tribunal’s assessment of the risk of him engaging in violent behaviour again in the future.
However, the assault offence itself was very serious and the Tribunal accepts that if conduct of that kind were to be repeated in the future, there is a real risk of it causing serious physical and or psychological harm to members of the Australian community including, potentially, the applicant’s partner. That remains of very serious concern to the Tribunal.
The question therefore is what is the risk of it being repeated? The Tribunal accepts that the applicant’s excessive alcohol consumption on the night in question was a significant contributing factor to the offending.
In his direct evidence, the applicant told the Tribunal that he did not believe he had a general issue with alcohol but acknowledged that on the night in question he had consumed far too much and that he believed it had contributed significantly to his offending conduct. He told the Tribunal that he had rarely consumed that much alcohol in a single session before and that generally he would consume approximately 4 to 6 beers over the weekend, 2 to 3 times a month. He told the Tribunal that he does not consume drugs of any kind. This evidence was consistent with the evidence of Ms N. The applicant told the Tribunal that given the serious consequences that flowed from his drinking session on that night he was now committed to abstaining completely from the use of alcohol in the future.
While the Tribunal accepts that the applicant does not appear to have a general issue with the use of alcohol, there is no doubt that he consumed a very significant amount alcohol on the night of the assault offence and that excessive drinking was a contributing factor in his offending. The Tribunal accepts the applicant’s evidence that he generally drinks 4 to 6 beers over the weekend, 2 to 3 times a month, and not more frequently than that. There was evidence that alcohol had been involved in prior disagreements between the applicant and Ms N although the Tribunal accepts that those prior disagreements had not escalated into violent conduct. The Tribunal accepts that the applicant does not consume recreational drugs of any kind or have any other form of substance abuse issue. The Tribunal also accepts the applicant’s commitment to abstaining from drinking in the future is genuine. However, that commitment has not yet been tested in the community and it would amount to a not insignificant behavioural adjustment to the applicant’s pre-custodial practice of casual drinking. The Tribunal is also concerned that the applicant has not engaged in any form of rehabilitation program specifically focussed on alcohol. The applicant did attend a number of counselling sessions where the issues surrounding his offending were explored in general terms however those counselling sessions appear to have been more focused on conflict resolution and managing relationship issues. The Tribunal accepts that through his involvement in the counselling sessions offered to him the applicant has taken some steps at better understanding his offending and how to avoid a repeat of that offending and, in that sense, has made attempts to rehabilitate himself. In the Tribunal’s view however, those efforts would have been further enhanced through the applicant’s participation in some form of alcohol focussed counselling. Having considered the evidence, the Tribunal is satisfied that there remains a low but not minor or remote level of risk of the applicant engaging in excessive drinking again in the future and that this in turn represents a risk factor in assessing the likelihood of conduct similar to the offending conduct being repeated.
The respondent contends that the applicant has not fully accepted responsibility for his offending or the seriousness of it and that this should also be considered a risk factor of the conduct being repeated. In his written statement the applicant stated:
… I am deeply sorry from the bottom of my heart about the violent behaviour towards my partner. I also accept the time that I have served in the prison because it had taught me a lesson that my actions were inappropriate and I really regret so much that I shouldn’t have treated my partner or any other person in this matter like that, and I promise that I will never do it again to her or any other person in my lifetime. I did not reflect a respectable woman deserved to her and I admit that I was totally wrong there is no excuse for such kind of bad behaviour.
I was not there for my first baby’s [M] birthday when she turned 1, and I was not there to support my partner when she gave birth to my 2nd baby [D] on […], just two months ago. I never thought for one second that I would ever leave them alone like this, but it is been 9 months now and I just couldn’t believe what I have done to my young family. I feel that I have abandoned them in these tough times of Covid19 pandemic. I am truly ashamed of father that I had become and I’m looking forward to making up for my absence in their lives and spending the next years of my life them, making beautiful memories.
My partner is not working at the moment because there is no one to help her take care of the kids and she is doing tough. Knowing the situations that my young family is going through, it is very hard for me to continue on to stay here in the detention. I just don’t know what else to say but I am “PLEASE SORRY”.
Because of this extreme isolation I have been through, I have been regretting a lot of my actions that cause me to go through all these and everyday I miss them so much, and I always wish I would go back in time and avoid my mistakes.
Life in the criminal detention had made me humble before the rule of law and completely change my life forever for the better. I am a Australian non-citizen (foreigner) and didn’t know much of the Australian laws back then, but after going through the situations, I now understand the power and the importance of the Australian laws and I am looking forward to submitting myself and carefully obeying all of them starting from the detention centre and to the communities outside in Australia if I am given the chance of a bridging visa.
Therefore, after going through some very important counselling programs in the detention centre. I have now come to realise my mistakes very well. I have talked with my partner about how much of a changed person I am and she was so excited about it and looking forward to meeting me soon. I have also set up positive goals to achieve and promise not to touch any drink that contains any form of alcohol. I am now in a better position to be a caring husband, loving father, and a good friend towards my family, friends and the community.
In cross examination the legal representative for the respondent referred the applicant to a number of earlier statements he is recorded as having made that might suggest an inclination to be dismissive of the seriousness of the offending conduct. For example, there was an earlier statement referring to the incident as “a little fight” and also an earlier statement that might suggest a view that the injuries were not “serious”.
When pressed on this, the applicant told the Tribunal that the incident had started out as a little fight but had then escalated. The applicant expressly rejected the notion that his offending conduct could be described as having been minor and accepted that it was serious. When pressed on whether he considered the injuries to the victim were serious the applicant told the Tribunal that he hesitates when asked the question because he had not intended to cause Ms N “big harm” or to “really try and hurt her”.
The legal representative for the respondent also questioned the applicant’s acceptance of responsibility for his offending on the basis of earlier statements that referenced the applicant suggesting that Ms N had been the instigator of the incident. When pressed on this point the applicant told the Tribunal that Ms N grabbed him and he had retaliated and in that sense he believed she had “started it”.
While the Tribunal retains a level of concern regarding the applicant’s answers to the questions put on these points, as expressed at the hearing, the Tribunal considers it appropriate to exercise a degree of caution when seeking to extract precise meaning from words being used by someone for whom English is a second language. While through the course of the hearing the applicant generally spoke English very well, it was clear that from time to time he was struggling to find a precise word or grappling with the precise meaning of a word.
Having heard the applicant’s evidence directly it was clear to the Tribunal that when answering questions regarding his perception of the seriousness of Ms N’s injuries the applicant was having some hesitation in using the term “serious” because in his view the injuries could have been far more serious and he appeared to be struggling to find the right words to express that. The Tribunal does not understand the applicant’s evidence in this respect to be suggesting a view that what he did was not seriously wrong or to suggest that he did not hurt Ms N. The applicant made various statements including in his direct evidence that satisfies the Tribunal that he does accept what he did was seriously wrong. For example, when it was put to him directly whether he considered the assault offence to be minor he said no and stated expressly that it was “a serious thing to do”. He also expressly acknowledged that he had hurt Ms N physically and emotionally. He also made clear that he understood the impact that his actions had had on Ms N as well as the children and expressed significant, and in the Tribunal’s view, genuine remorse for his actions. For these reasons, the Tribunal is satisfied that the applicant accepts the seriousness of his offending conduct.
However, the Tribunal has more difficulty with what appears to be a lack of full acceptance of responsibility for the assault. While at one level it is not unreasonable for the applicant to state as a literal fact that the incident commenced with Ms N entering the bathroom, confronting him about the phone call and grabbing his shirt. This much was acknowledged in the statement of facts as set out by the Sentencing Judge in the sentencing comments for the offence. However, the Tribunal does not accept that the applicant’s evidence, considered as a whole, can be limited to that. The Tribunal is satisfied that at some level the applicant retains a view that Ms N shares some responsibility for what occurred. Of course, the assault should not have occurred in any circumstances and the fact that it did is solely the responsibility of the applicant. However, the Tribunal does not understand the whole of the applicant’s evidence as suggesting a complete absence of responsibility for his conduct. That would be taking this point too far. There were multiple statements both in his direct evidence to the Tribunal as well as in earlier statements where the applicant acknowledges responsibility for his actions and expresses considerable remorse for the impact of his actions including, in particular, for his partner as well as his children. The Tribunal accepts those statements as being genuine. However, in the Tribunal’s view, those statements must be qualified to some degree by the fact the applicant continues to hold the view that Ms N also bears some responsibility for the incident. In the Tribunal’s view this indicates a qualified sense of acceptance of responsibility on the part of the applicant for his offending conduct which in turn represents an additional risk factor when assessing the likelihood of the conduct being repeated.
There were a number of other protective factors that in the Tribunal’s view weigh against the risk of the applicant repeating his offending conduct. Both the applicant and Ms N told the Tribunal that they remain committed to their relationship and intend to live together if the applicant is released back into the community. When asked about his commitment to his relationship with Ms N the applicant told the Tribunal “I am 100% committed… I love her so much…Its more than just the children, she is my family”. Ms N also told the Tribunal that she was fully committed to her relationship with the applicant and also to living with him and raising the kids together. Ms N told the Tribunal that she loves the applicant and trusts him. The Tribunal accepts the applicant’s and Ms N’s evidence in this respect. The Tribunal found the applicant’s stated commitment to the relationship as well as to an ongoing parental role in respect of the children to be very genuine and compelling. It was clear to the Tribunal that Ms N has found raising the children in the absence of the applicant extremely difficult and has suffered mental health issues during the period the applicant has been in custody. It was also clear that they had maintained consistent contact to the extent possible following the relaxation of the AVO. Ms N told the Tribunal that they speak by phone every day.
In his evidence to the Tribunal, the applicant acknowledged that his offending conduct which led to his imprisonment and detention has had a significant adverse impact on his partner and made her task of caring for the children very difficult. He told the Tribunal that he was determined not to repeat his conduct and very much wanted to be able to live with his partner and help raise the children together. It was also clear from the applicant’s evidence that he has found it extremely difficult being separated from his partner and children and was determined to do everything he could to avoid being separated from them again in the future.
The applicant gave evidence that he intended to pursue an appeal in respect of the protection visa refusal. He told the Tribunal that he had sought an extension of time to allow an appeal and that he was seeking further legal advice in respect of that process. The applicant also gave evidence that if in the future he was successful in securing a right to remain in Australia for an extended period his focus would be on spending time with his family and to help raise the children with his partner. He also stated that he would like to pursue his engineering degree if that was possible and to support his partner in her further studies.
For these reasons, the Tribunal is satisfied that the applicant has very strong incentives to avoid reoffending and also enjoys the benefit of a supportive partner. In the Tribunal’s view these factors weigh significantly against the risk of the applicant reoffending again.
The Tribunal has weighed each of the factors for and against the risk of reoffending. On balance the Tribunal is satisfied that the risk of the applicant reoffending again in a similar manner is low although not so minimal or remote that it can be readily dismissed as a risk entirely. This is particularly so given the serious impact any repeat offending in a similar manner could have for members of the Australian community.
For these reasons, notwithstanding the low risk, the Tribunal is satisfied that this consideration weighs significantly in favour of a decision to refuse to grant the applicant’s visa under section 501 of the Act.
Conduct involving family violence
The assault offence for which the applicant was convicted self-evidently involves family violence. The applicant’s victim, Ms N is the applicant’s de-facto partner and the offence occurred in a domestic setting. The description of the offence in the conviction record included in the National Criminal History Report also notes its classification as a domestic violence offence.
In assessing the weighting to be given to this consideration the Tribunal has had regard to the factors set out in paragraph 8.2(3) of the Direction. For the reasons set out in more detail in the previous section, the Tribunal is satisfied that the assault offence constitutes a serious act of family violence perpetrated against Ms N. In making its assessment the Tribunal is satisfied that the applicant has taken some steps to understand the nature of his offending and to rehabilitate himself. The applicant has undertaken some level of counselling to improve the way he manages issues in his relationship and to be better placed to avoid a repeat of such conduct in the future. The Tribunal accepts the applicant’s stated commitment to abstain from drinking in the future as being genuine but nonetheless retains some level of residual concern regarding the risk of him failing to live up to that commitment given the absence of counselling specifically focused on his alcohol use and the fact that his commitment has not yet been tested in the community.
The Tribunal is satisfied that the applicant understands the seriousness of his offending as well as the impact it has had on his partner and children. While the Tribunal is satisfied that the applicant has accepted responsibility for his offending that acceptance is qualified to some degree for the reasons the Tribunal has already set out.
For the reasons explained in detail in the previous section, the Tribunal has assessed the risk of the applicant engaging in a repeat of his offending conduct as being low but not so minor or remote to be dismissed entirely.

The Tribunal acknowledges that the assault offence is the applicant’s only offence and also accepts that there are no other examples of the applicant engaging in family violence. Accordingly, the factors relating to frequency of offending, increasing trend of seriousness or cumulative impact are not relevant in the present case.
For these reasons, the Tribunal is satisfied that this consideration weighs significantly favour of a decision to refuse to grant the applicant’s visa under section 501 of the Act.
Best interests of minor children in Australia
In assessing this consideration, the Tribunal has had careful regard to the factors set out in paragraph 8.3(4) of the Direction.
There are two young girls who are relevant to this consideration, M, who is approximately 2 years of age and D, who is approximately 8 months of age.
Ms N’s eldest daughter, M, is not the applicant’s biological daughter. However, both Ms N and the applicant gave evidence to the Tribunal that the applicant has assumed a father role in respect of M and was involved actively in caring for M during an approximately 9-month period prior to being taken into custody. They also gave evidence that as a consequence of the AVO in place following the assault offence the applicant had been constrained from speaking to M directly although he had maintained some level of communication with M indirectly by writing letters to her. They told the Tribunal that since the relaxation of the AVO the applicant has maintained consistent contact with M through electronic means and that he has a strong relationship with her. The applicant told the Tribunal that he has phone contact with M almost every day. The Tribunal accepts this evidence.
The applicant told the Tribunal that he has a close and loving relationship with M and that he considers her to be his daughter. The applicant was visibly emotional when speaking about M and told the Tribunal of the fond memories he has of her first months when he helped care for her, feeding her, washing and bathing her and “giving her strength”. The Tribunal materials included a personal circumstances form in which the applicant states as follows:
The proudest moment of my life was when [M] was born because she was the one who gave me the name tag "Father". From that day on I gave her the love and care that she deserved just like all children around the world. My partner went through C-section (caesarean) when [M] was born so she couldn't give a good care to [M] like a normal caring mother would do. So I was the one who put in all the efforts take care of baby [M] and also my partner because she was a patient at that time and it took a while to totally recover from her incision.
I usually see it through her little eyes the kind of love and happiness that [M] gave to me by her cute smiles. During those critical times of my partner, I played so many important parts in [M]'s life and our father-daughter relationship [g]rew each day and honestly now I really miss [M] with all my life everyday.
The applicant was also visibly emotional when giving evidence to the Tribunal regarding his daughter D. He told the Tribunal that he was extremely saddened by not being present while D was born although he was able to be present shortly after via a video phone call. He told the Tribunal that he has maintained consistent contact via video phone calls in the period following the relaxing of the AVO and that he wanted to have the opportunity to hold his youngest daughter and to be there for both of them as they grow up.
The applicant gave evidence that he felt he had let his family down as a consequence of his conduct and his forced separation from them. His evidence was that he had been a poor father and that he was determined to make it up to them. He expressed his regret that he had not been physically present for M’s first birthday nor to assist Ms N at D’s birth and in the period following. In his statement to the Department the applicant said:
I never thought for one second that I would leave them alone like this, but it has been 9 months now and I just couldn’t believe what I’ve done to my young family. I feel that I have abandoned them in these tough times of Covid19 pandemic. I am truly ashamed of the father that I had become and I am looking forward to making up for my absence in their lives and spending the next years of my life with them, making beautiful memories.
My partner is not working at the moment because there is no one to help take care of the kids and she is doing tough.
Ms N gave very consistent evidence regarding the applicant’s relationship and commitment to the children as well as the impact the applicant’s separation from the family has had on both her and the children. Ms N told the Tribunal that since the relaxation of the AVO they speak by phone every day and that much of the conversation is about the kids. She told the Tribunal that the applicant engages with the kids and tells them stories. There was also documentary evidence in the materials of screenshots of text exchanges and video calls between the applicant Ms N and the children.
The Tribunal accepts that notwithstanding the brief period the applicant has enjoyed direct physical contact with M and the brief period more recently following the relaxation of the AVO in which he has had the opportunity to engage directly with them by electronic means, the applicant nonetheless has a very genuine and deep-felt emotional connection to both of the children. In addition, the Tribunal is satisfied that the applicant is genuine in his commitment to his future relationship with Ms N and to living with her and jointly raising the children together.
The Tribunal is satisfied that the applicant has the capacity and commitment to play a very significant and positive parental role in their lives. In the Tribunal’s view, given their young age, allowing the applicant to play such a role by being physically present in their lives has the potential to be very significant, even if for a period of uncertain duration.
Both the applicant and Ms N gave evidence that in the event the applicant is removed from Australia and returns to Papua New Guinea, Ms N does not intend to move to Papua New Guinea to live with the applicant there. In such circumstances it is highly likely that the family would be physically separated indefinitely. The Tribunal is satisfied that for the children to be separated from their father in this way would have a very significant adverse impact on both of them and on the development of their relationship with their father.
The Tribunal acknowledges that in the event the applicant is forced to relocate back to Papua New Guinea it would be possible for Ms N and the children to travel to Papua New Guinea to visit the applicant although any such visits are likely to be irregular and for brief periods. It would also be possible for them to maintain some level of connection to the applicant by maintaining contact through electronic means. The Tribunal also acknowledges that even if the applicant is granted a bridging visa the applicant’s longer-term presence in Australia would still be very uncertain.
Nonetheless the Tribunal continues to be of the view that any further separation of the children from their father is likely to have significant adverse consequences for their relationship with their father and for their personal development. Conversely, any additional time they can have living together is very much in their best interests.
Accordingly, the Tribunal is satisfied that a decision denying the applicant‘s visa would have a very substantial adverse impact on both of the children and not be in their best interests. Given M’s prior physical connection to the applicant and heightened awareness due to her age, the Tribunal is satisfied that the impact on M is likely to be even more significant, at least in the short term.
The Tribunal is satisfied that there are no AVO or other court order constraints currently in place that would prevent the applicant from being able to play an ongoing parental role in respect of the children.
The Tribunal is satisfied that there is no evidence that the applicant’s prior conduct has had an adverse impact on either of the children. The Tribunal has also factored in the low risk of the offending conduct being repeated and of the children being exposed to such conduct. There is no evidence of the applicant engaging in violent behaviour directed towards the children in any way and, in the Tribunal’s view, no reasonable basis for considering there to be a real risk of the applicant doing so in the future.
It was clear to the Tribunal that Ms N’s capacity to care for the children has been significantly impacted by her separation from the applicant. In her direct evidence, Ms N emphasised the significant emotional impact the separation from the applicant has had on her and her very strong desire to be reunited with the applicant and to have the benefit of his assistance in raising the children. In an undated statutory declaration included in the materials Ms N states as follows:
It's been very challenging situation for me to raise our children as a single parent, we have two daughters, one year 5months old and a baby who is a month old. I am living in Victoria and the COVID19 situations from last year till this year had made me to go through a lot of depression, and stressed out with the two kids. I can't take it anymore, and I am desperately needing his help with the kids and need to share responsibilities with him. It's been so long, the kids and I, we miss him so much and it hurts me to see my daughters without their father.
Having considered all the material before it and also the direct evidence of both Ms N and the applicant, the Tribunal is satisfied that the ongoing separation of the applicant from Ms N and the children is having a significant adverse impact on Ms N herself which in turn is impacting the care she is able to give to the children. The Tribunal is satisfied that no support is being provided to the eldest of the children by the child’s biological father and that the support able to be offered to Ms N and the children by Ms N’s mother is limited given the nature of Ms N’s relationship with her mother and her mother’s own priorities. There is no evidence of any other substantive support being afforded to Ms N in the raising the children. In the Tribunal’s view these factors further reinforce its conclusion that a decision to deny the applicant a bridging visa will have a substantial adverse impact on the children.
For these reasons, the Tribunal is satisfied that this consideration weighs very substantially against a decision to refuse to grant the applicant’s visa under section 501 of the Act.
Expectations of the Australian community
Paragraph 8.4 of the Direction provides as follows:
1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen as 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 allows such a non-citizen to enter or remain in Australia.
2In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is 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:
(a)acts of family violence;
(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;
(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;
(f)worker exploitation.
3The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4This 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 above, without independently assessing the community’s expectations in the particular case.
The Direction’s wording in paragraph 8.4(4) above would appear to be an adoption of a line of Federal Court authority that considered the meaning to be given to the “expectations of the Australian community” in the context of the former Direction 79 including, in particular, the Federal Court’s decision in FYBR v Minister for Home Affairs.[3] Paragraph 8.4(4) of the Direction makes clear that the Tribunal is required to give consideration to the Government’s views of the expectations of the Australian community as a whole as articulated in the Direction itself and does not involve the Tribunal independently assessing the community’s expectations in a particular case.[4]
[3] [2019] FCAFC 185.
[4] See also PYDZ v Minister for Immigration, Citizenship. Migrant Services and Multicultural Affairs [2021] FCA 1050 at [82].
The Tribunal is satisfied that this consideration weighs significantly against the granting of the applicant’s visa having regard to the Government’s stated view of the expectations of the community and, in particular, having regard to the following factors:
(a)in committing the assault offence, the applicant has engaged in serious conduct that breached the community’s expectations that non-citizens obey the law while in Australia; and
(b)the applicant’s offending conduct involved a serious act of family violence against a vulnerable woman.
In giving weight to this consideration the Tribunal has had regard to the fact that the applicant has not engaged in repeat offending of any kind and the risk of future similar conduct is low although not so low that it can be readily dismissed entirely. In having regard to these factors, the Tribunal acknowledges that the expectations of the Australian community apply regardless of whether the applicant poses a measurable risk of causing further physical harm.
For these reasons, the Tribunal is satisfied that this consideration weighs significantly in favour of a decision to refuse to grant the applicant’s visa under section 501 of the Act.
Other considerations
Paragraph 9 of the Direction sets out a non-exhaustive list of other considerations to be taken into account including:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community.
International non-refoulement obligations
In the applicant’s personal circumstances form included in the Tribunal materials the applicant claims a fear of harm if forced to return to Papua New Guinea. The applicant reinforced these claims in his direct evidence to the Tribunal. The applicant’s claims appear very similar to those that were the subject of a previous application for a protection visa. That application was ultimately refused by a delegate of the respondent and the delegate’s decision was in turn subsequently affirmed by the AAT, differently constituted. The applicant has indicated to the Tribunal that he is seeking further legal advice with an intention to appeal the previous decision to deny his protection visa application.
In considering this issue the Tribunal has had regard to the substance of the claims made in respect of the applicant’s previous application for protection visa under section 65 of the Act together with the general claims of fear of harm included in his statements to the Department and in his direct evidence to the Tribunal. Considered as a whole, the applicant’s claims amount to an assertion that Australia owes international protection obligations in respect of him. The claims can be summarised as follows:
(a)first, a refugee claim, that is, a claim that the applicant is a refugee on the basis of a well-founded fear of persecution by reason of a membership of a particular social group and real or imputed political opinion without the protection of Papua New Guinea; and
(b)second, a complementary protection claim, that is, a claim that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Papua New Guinea there is a real risk that the applicant will suffer significant harm.
The applicant’s evidence was that he was born and raised in a small village near Wabag. Enga province in Papua New Guinea as a member of the Kala Tribe. The applicant claims that the area in which he was raised has been the subject of very significant violence as a consequence of the “payback system” associated with intertribal conflict and also politically related conflict particularly surrounding elections. The applicant told the Tribunal that elections occur every five years and that significant violence can erupt leading up to and around election-time as well as following an election, as a consequence of the “payback system”. The applicant told the Tribunal that his family and, in particular, his father, support the Papua and Niugini Union Pati (PANGU) party. The applicant told the Tribunal that members of the neighbouring Kii tribe were political opponents and supported the rival People’s National Congress Party (PNC). The applicant told the Tribunal that there was ongoing conflict between the tribes but in particular as a consequence of political tension leading up to, during and following an election. The applicant told the Tribunal that his family and his father, in particular, were well-known to be supporters of the PANGU party. The applicant told the Tribunal that he personally had been attacked in 2012 where he had been stabbed in the leg with a knife by a member of the opposing tribe. The applicant told the Tribunal that in 2015 he had been travelling home by bus when he was involved in a roadblock set up by members of another tribe and claims to have been the subject of serious threats including to his life during the incident. The applicant also told the Tribunal that he has been subjected to threats in 2016 while living in Port Moresby one of which escalated into a fight. The applicant told the Tribunal that a cousin and uncle had also been killed because of intertribal conflict. The applicant told the Tribunal that his family home and father’s car were destroyed as a consequence of politically motivated intertribal conflict that emerged after the 2017 elections. The applicant told the Tribunal that he believed that his life was in danger because of the conflict between tribes. He told the Tribunal that the threat was particularly heightened around the time of an election although it continues to subsist both in the period leading up to an election and following an election as a consequence of the payback system. The applicant told the Tribunal that he had been specifically threatened with violence as a consequence of his connection to the family and the family’s association with the PANGU party. The applicant included in his materials a number of letters reinforcing these concerns purportedly written by the applicant’s father, a local councillor and also a local police officer.

The applicant told the Tribunal that as a consequence of fears for his safety in 2016, his family had made arrangements for him to leave his local village and travel to Port Moresby to live with his aunty. The applicant stated that while in Port Moresby he was the subject of targeting by people who are aware of his membership of the Kala tribe. He stated that one of those incidents escalated into a physical fight where he was forced to defend himself. The applicant told the Tribunal that as a consequence of ongoing concerns surrounding his safety his family made arrangements to send him to China to study aeronautical engineering. The applicant left for China in around September 2016 and returned to Papua New Guinea in September 2018. The applicant told the Tribunal that he returned from China after two years of study due to the inability of his family to continue funding his studies in China because of the attack they had suffered in 2017, which had left them financially devastated.
The applicant told the Tribunal that following his return to Papua New Guinea he continued to be concerned for his safety and subsequently made the decision to travel to Australia to meet up with his now partner who he had met online. The applicant travelled to Australia initially in November 2019. The applicant told the Tribunal that after having spent some time in Australia with Ms N they jointly decided to make their relationship more permanent and the applicant then travelled back to Papua New Guinea for approximately four weeks at the end of January 2020 before returning to Australia again in late February 2020. The applicant told the Tribunal that the purpose of the visit back to Papua New Guinea at this time was to show respect to his parents by advising them of his decision to formalise his relationship with Ms N in-person. The applicant told the Tribunal that when he returned to Papua New Guinea for this purpose, he remained in Port Moresby for the entire four weeks and did not travel to his home village. He told the Tribunal that instead his parents travelled from his home village to Port Moresby to meet with him.
The Tribunal found the applicant’s evidence in respect of his protection claims to be generally reliable and credible. The Tribunal does retain some concerns regarding a small number of specific instances in the applicant’s evidence which it addresses further below. The Tribunal is satisfied that the applicant was raised as a member of the Kala tribe in a small village near Wabag in Enga province Papua New Guinea and that there have been significant instances of violence as a consequence of intertribal conflict as well as politically-motivated conflict. The Tribunal accepts that some of the conflict that has occurred in and around the applicant’s home village is as a consequence of conflict between the Kala tribe and the neighbouring Kii tribe and also as a consequence of political conflict between supporters of the PANGU party and the PNC. The Tribunal accepts that the applicant’s family are known to be associated with the PANGU party and have been the subject of targeted violence as a consequence of their political association. The Tribunal accepts the applicant’s evidence that in approximately 2012 he was the subject of a stabbing which is related to either the intertribal conflict or political conflict as described above. The Tribunal also accepts the applicant’s claim that he was the subject of serious threats while riding on a bus to his home village in 2015 and again those threats were related to either intertribal conflict or political conflict. The Tribunal also accepts the applicant’s evidence that other family members have been subjected to violence including death as a consequence of such conflict and also that his family in particular were the subject of an attack that destroyed the applicant’s father’s property, livestock and car as a consequence of either intertribal conflict or due to the family’s known political affiliation. Again, the Tribunal found the applicant’s evidence in relation to these circumstances to have been reliable and credible.
The Tribunal also accepts that there remains an ongoing threat to the applicant’s personal safety should he return to the area surrounding his home village as a result of the ongoing presence of both intertribal and politically-motivated violence. The Tribunal is satisfied that these threats are as a consequence of the applicant’s membership of his tribe and also in connection with the known political views of his family. The Tribunal is satisfied that such threats exist at heightened levels in connection with elections and notes that an election is due in 2022 but that such violence can also be present in the lead up to or following an election.
The DFAT Country Information Report dated 10 February 2017 acknowledges the prevalence of intertribal conflict in particular in the Highlands region of Papua New Guinea. The Report states as follows:
Tensions between and within PNG's hundreds of different groups occurs frequently across PNG, and may be triggered for a variety of reasons, including land and territory -related issues, accusations of sorcery and witchcraft, and inequality. These tensions have led to frequent outbreaks of fighting, rioting and looting, often resulting in the widespread destruction of property, disruption of normal services, death and serious injury.
Tribal violence is particularly prevalent in the Highlands provinces, which account for almost half the country's population. Conflicts between various groups are complicated by grievances over access to royalties, benefits, and compensation associated with resource extraction projects in the country, whether mining, gas extraction or logging. DFAT is aware of cases in recent years where tribes from the highlands have carried on tribal violence and other parts of the country, including Port Moresby.
Tribal conflict has become increasingly violent in recent years as individuals have had greater access to firearms and other high-powered weaponry, and as those fighting have increasingly been affected by alcohol and drugs.
…
While there have been some cases of individuals involved in tribal fighting being prosecuted, problems often arise in relation to securing witnesses to support the prosecution, as many people fear they will be subjected to "payback" violence if they testify.
The DFAT Country Information Report also specifically acknowledges the presence of election-related violence with a particular prevalence in the Highlands region of Papua New Guinea. The Report states as follows:
Elections are held every five years. The 2012 Parliamentary elections were monitored by a number of international and domestic organisations. Several incidents of election -related violence occurred during both the polling and cabin periods, resulting in serious injury, loss of life and destruction of property. Most of the violence occurred in the Highlands provinces (which are generally more violent than the rest of PNG), and it is difficult to say for sure whether individual incidents of violence were election -related were the result of separate community or tribal tensions.
In addition, the Tribunal materials also included references to a number of media reports of serious election related violence in Enga province in 2017.
The Tribunal accepts the applicant’s evidence that he was in part motivated to leave his home village to live and study elsewhere as a consequence of ongoing concerns for his safety and accepts that he left his village for Port Moresby to live with his aunty for this reason. The Tribunal accepts that the applicant lived in Port Moresby for a significant number of months following his return from China also for this reason. The Tribunal however was not persuaded by the applicant’s evidence in respect of his motivations for leaving Port Moresby to study in China. In his evidence the applicant told the Tribunal that he did so because of his ongoing concerns regarding his safety in Port Moresby itself. While the Tribunal is satisfied that the applicant had a reasonable basis for a generalised concern for his safety during the time he was living in Port Moresby it does not accept that during the time the applicant was living in Port Moresby he was exposed to a well-founded fear of persecution in connection to his association with his tribe or his family’s political views nor was he exposed to a real risk of significant harm in connection with the intertribal conflict or politically-related conflict of the kind present in the area surrounding his home village. The Tribunal is satisfied that the applicant’s concerns regarding his safety in Port Moresby were substantially the same as those faced by any other citizen.
The Tribunal accepts that there is an extremely high level of generalised violence in Port Moresby. The DFAT Country Information Report states:
While varying in degree according to location, the overall crime rate in PNG is extremely high and is characterised by high levels of violence. Crimes occur randomly, and are particularly prevalent in Port Moresby and other major cities; the settlement areas of towns and cities are particularly dangerous. Machetes and firearms are often used in assaults and thefts. Car-jackings, armed robberies, assaults (including sexual assaults) and stoning of vehicles are common.
The Tribunal also accepts that tribal conflict from regional areas does at times migrate into the cities including Port Moresby. The Tribunal accepts the applicant’s evidence that he was personally targeted in Port Moresby on a couple of occasions as a consequence of having been identified as a Kala tribe member and connection with his father’s political opinions. Notwithstanding this, the incidents that occurred did not result in any significant harm to the applicant and there was evidence of only a couple of such incidents occurring despite the fact that the applicant had lived in Port Moresby for a reasonably significant period of time.
In addition, the Tribunal is satisfied that the applicant was a high achieving secondary school student with strong educational and career ambitions and is satisfied that the decision to leave Port Moresby and travel to China to take up aeronautical engineering studies was principally motivated by his educational and career ambition and not ongoing concerns regarding his safety in Port Moresby. The Tribunal is also satisfied that the applicant’s decision to travel from Papua New Guinea to Australia in November 2019 was principally motivated by a desire to meet his new partner in-person and to explore the potential for educational opportunities in Australia. The Tribunal also accepts the respondent’s contention that the applicant’s decision to travel back to Papua New Guinea in late January 2020 is inconsistent with the applicant maintaining a genuine fear for his safety should he return to Port Moresby. The Tribunal does not accept the applicant’s explanation that he did so out of an obligation to his parents notwithstanding very real and serious concerns for his safety.
For these reasons, the Tribunal is not satisfied that there is a reasonable basis for a well-founded fear of the applicant being persecuted by reason of his membership of a particular social group or (imputed) political opinion should he return to Port Moresby. Nor is the Tribunal satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being forced to return to Port Moresby there is a real risk that he would suffer significant harm. The Tribunal does accept that such risks would exist if the applicant were to return to his home village but is not satisfied that there is any reasonable basis for suggesting that the applicant is unable to remain and live in Port Moresby should he be returned to Papua New Guinea.
Accordingly, the Tribunal is not satisfied that Australia owes international protection obligations in respect of the applicant in the manner in which the applicant has claimed and consequently gives this consideration neutral weight. In reaching this conclusion the Tribunal acknowledges that its assessment of this issue in the context of the matter presently before it is in no way a substitute for the applicant’s intended appeal of the protection visa refusal itself through the Federal Court. That of course is an entirely separate process.
Extent of impediments if removed
The applicant is 28 years of age and generally in very good physical health. The Tribunal is satisfied that the applicant continues to suffer depression and anxiety in connection with his ongoing separation from his family together with the ongoing uncertainty of his visa situation in Australia. This is supported by the applicant’s IHMS clinical records included in the Tribunal materials which make several references to the applicant suffering depressed mood, anxiety and insomnia as well as having received medication for his mental health conditions.
The Tribunal accepts that if the applicant were forced to return to Papua New Guinea it is likely that the ongoing separation from his family as well as stress more generally associated with his return would further exacerbate his mental health concerns. It is also accepted that the level of support the applicant is likely to receive in the management of his mental health concerns will be significantly less than that generally available in Australia although there is no reason to believe that the support would be any less than that available to any other citizen of Papua New Guinea. The World Health Organisation Mental Health Policy and Service Development Report for Papua New Guinea published in 2013 sets out very clearly the significant challenges someone seeking access to mental health services in Papua New Guinea is likely to face. The report states:
Geographical constrains as well as cultural beliefs are key factors influencing mental health care utilization and accessibility. Application of indigenous approaches to mental health issues remains widespread compared to western assessment and treatment approaches and traditional healers are the main point of contact for many people with mental disorders.
While there is evidence of improvement in some areas of health and development, such as an increase in overall life expectancy, infant and maternal mortality rates remain one of the highest in the region with the latter doubling over the past 10 years. For mental health, the treatment gap remains large, and people with mental disorders experience high levels of stigma and discrimination and a wide range of human rights violations.
The provision of mental health assessment and treatment is predominantly in secondary and tertiary level of centred care. Port Moresby General Hospital has an existing acute mental health unit. Longer-term mental health treatment is provided at Laloki psychiatric hospital located just outside of Port Moresby. Attempts are being made to increase the provision of community-based mental health services with the re-establishment of a Psychosocial Rehabilitation Centre (PRC).
The Tribunal is satisfied that the quality and access to mental health services in Papua New Guinea is not likely to have improved significantly since 2013.
While the Tribunal is satisfied that the applicant is likely to face ongoing challenges from a mental health perspective on a return to Papua New Guinea, it is not satisfied that such challenges are likely to materially impede the applicant’s capacity to successfully reintegrate back into life in Papua New Guinea.
Given that the applicant was born and raised in Papua New Guinea and has lived the vast majority of his life there the Tribunal is satisfied that the applicant will not face any substantial language or cultural barriers on his return. In addition, the Tribunal is satisfied that the applicant continues to have significant social support through friends and family in Papua New Guinea to assist him in such a transition. This extends to Port Moresby should the applicant elect to reside there. In that respect the Tribunal notes that the applicant’s aunty and brother continue to reside in Port Moresby.
Notwithstanding the significant economic challenges facing the country the Tribunal is satisfied that given the applicant’s relatively young age and, with the exception of his mental health concerns, otherwise physical good health, his reasonably high level of education and his prior work experience, the applicant is likely to be able to obtain employment of a kind similar to that which he was able to obtain prior to his travel to Australia in the short to medium term. In all of the circumstances the Tribunal satisfied that the applicant will be reasonably well-placed to secure appropriate accommodation and otherwise meet his basic needs.
As the Tribunal has stated in the section above dealing with international non-refoulement obligations, in the event the applicant is forced to return to Papua New Guinea and elects to live in Port Moresby the Tribunal is not satisfied that the applicant is likely to face a well-founded fear of persecution or a real risk of significant harm in a manner that would give rise to protection obligations being owed. However, the Tribunal is satisfied that in such circumstances the applicant would be exposed to a very high level of generalised violence that exists in Port Moresby. The Tribunal is satisfied that in this respect the applicant’s safety concerns are likely to be very similar to those faced by the general population. However, for the reasons already stated, the Tribunal is satisfied that if the applicant were to elect to return to his home village then the safety concerns he would face are likely to be more substantial and more specific to his personal circumstances.
For these reasons, the Tribunal is satisfied that this consideration weighs slightly against a decision to refuse to grant the applicant’s visa under section 501 of the Act.
Impact on victims
Ms N was the victim of the applicant’s assault offence. The impact of a decision in the matter before the Tribunal on Ms N is considered in the section addressing the strength, nature and duration of ties to Australia is set out below.[5]
Links to the Australian community
[5] CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842 at [20].
Strength, nature and duration of ties to Australia
The applicant has significant ties to Australia through his family members: children M and D; and his partner Ms N.
The impact of the decision of the Tribunal on each of the children has been addressed in the section on the best interests of minor children in Australia set out above.
There was substantial evidence before the Tribunal in relation to the significant impact the applicant’s imprisonment and ongoing detention has had on Ms N. Ms N and the applicant commenced their relationship online in approximately 2017 and maintained that relationship in-person after the applicant’s arrival in Australia initially in November 2019 and also following his subsequent return to Australia in February 2020. The evidence of both the applicant and Ms N is that they continue to be committed to their relationship and their intention is that if the applicant were released back into the Australian community they would live together and jointly raise the children. The Tribunal accepts their evidence in this respect.
Ms N told the Tribunal that the applicant is a loving partner and that she wants to be with him and wants to live with him and to be able raise the children together. Ms N gave evidence to the Tribunal regarding the very significant impact her separation from the applicant has had on her personally. Ms N was extremely emotional when giving evidence on the impact the separation from the applicant has had on her. Ms N told the Tribunal that she is struggling as a single mother with two children, taking all the responsibility without any other substantial support. She told the Tribunal that she is going through “a lot with my mental health. I can’t manage without him”. She told the Tribunal “I have 110% confidence that he won’t go there again. He is committed to not doing so. He has promised he won’t. He has learnt a lot”. She told the Tribunal that before the incident things were going well but that following the applicant’s imprisonment and detention she is now going through tough times. She told the Tribunal that she has lost her job and lost her house and as a consequence she was forced to move in with her mother. She told the Tribunal that she learnt to drive but that she has not been mentally well and that as a consequence she had a car accident. She told the Tribunal “I don’t see a future for myself or the children without him”.

In an undated written statement provided to the Department Ms N stated that:
I can't take it anymore, and I am desperately needing his help with the kids and need to share responsibilities with him. It's been so long, the kids and I, we miss him so much and it hurts me to see my daughters without their father.
Ms N’s evidence was reinforced through the direct evidence of the applicant himself. The applicant told the Tribunal that he believed Ms N had struggled significantly as a consequence of their separation and in particular that she had struggled with raising the children without his support. He told the Tribunal that the applicant’s mental health was poor and that she needed his support. In his personal circumstances form provided to the Department the applicant stated as follows:
[Ms N] was going through a lot of stress because she didn't have a driver's licence to drive around, and no one was there for her to take care of the baby so she can go to work and do other important stuffs. She felt too much pressure with many other responsibilities that we normally share together.
… My young family has been torn apart and they have gone through a lot already. It's too much for me to take it when my family is facing these tough situations on their own...
As noted earlier in these reasons, the Tribunal is satisfied that in the event that the applicant is forced to be removed from Australia there is no prospect of Ms N and the children travelling with the applicant back to Papua New Guinea to live and therefore the Tribunal is satisfied that such a scenario is likely to result in an indefinite physical separation which will make their future relationship extremely difficult and is likely to leave Ms N without the physical support of her partner.
In reaching this conclusion the Tribunal acknowledges that in the event the applicant is forced to relocate back to Papua New Guinea it would be possible for Ms N and the children to travel to Papua New Guinea to visit the applicant although any such visits are likely to be irregular and for brief periods. In reaching this conclusion the Tribunal also acknowledges that even if the applicant is granted a bridging visa the applicant’s longer-term presence in Australia would still be very uncertain.
Nonetheless the Tribunal is satisfied that as Ms N is in significant need of the applicant’s immediate support both personally and also in relation to the responsibilities associated with raising the children the impact of any further ongoing physical separation is significant.
The Tribunal is satisfied that a decision of the Tribunal requiring the applicant to be removed from Australia would have a significant adverse impact on Ms N including further adversely impacting on her mental health and further exacerbating the immediate challenges she is facing in raising two small children with extremely limited support.
For these reasons, the Tribunal is satisfied that this consideration weighs very substantially against a decision to refuse to grant the applicant’s visa under section 501 of the Act.
Impact on Australian business interests
There was no evidence before the Tribunal that Australian business interests will be impacted in a sense contemplated by the Direction if a decision were to be made that did not allow the applicant to remain in Australia. Accordingly, this consideration is given neutral weight.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test set out in section 501(6) of the Act. Therefore, the Tribunal is required to consider whether or not to exercise the residual discretion in section 501(1) of the Act.
The Tribunal is satisfied that the applicant’s assault offence is very serious in particular having regard to the fact that it involves an act of family violence against a vulnerable woman. Notwithstanding the seriousness of the applicant’s offending the Tribunal is satisfied that the risk of the applicant repeating the conduct is low although not so low that the risk can be dismissed in its entirety. In this regard the Tribunal is satisfied that the applicant has demonstrated an acknowledgement of the seriousness of the offending and regret for the offending, and substantially accepts responsibility for his offending although that acceptance of responsibility is qualified for the reasons set out. The Tribunal is also satisfied that the applicant is genuine in his stated commitment to not repeat the offending conduct and that there are significant protective factors which mitigate the risk of him doing so.
For the reasons set out, the Tribunal is satisfied that the family violence and expectations of the Australian community considerations weigh significantly in favour of a decision to refuse the applicant’s visa under section 501 of the Act. Again, for the reasons set out, the Tribunal is satisfied that the international non-refoulement obligation consideration is neutral as is the consideration in relation to Australian business interests.
The Tribunal is satisfied that while the applicant is likely to face some challenges if forced to return to Papua New Guinea, given that he was raised and has lived the vast majority of his life there, the Tribunal is satisfied that this consideration while weighing in the applicant’s favour is not a significant factor in the present decision.
Significantly in the circumstances of this case, the Tribunal is satisfied that the interests of the applicant’s two children weigh very substantially against a decision to refuse to grant the applicant’s visa under section 501 of the Act. The Tribunal is satisfied that notwithstanding the limited time the applicant has spent in the physical presence of his eldest daughter and the limited connection he has otherwise been able to establish with his younger daughter through electronic means, as well as the uncertainty regarding the applicant’s longer term presence in Australia, the best interests of the children will clearly be served by enabling the applicant to be physically present as a father and to be able to assist his partner in the care of the children during the period he seeks review of his protection visa refusal. The Tribunal is satisfied that the applicant’s love and affection for the children is very genuine. The Tribunal is also satisfied that a decision requiring the applicant to return to Papua New Guinea is likely have a very significant adverse impact on the children.
In addition, the Tribunal is satisfied that the applicant’s partner, Ms N, who was the victim of his assault, has been very significantly impacted by the ongoing separation from the applicant and her inability to be able to enjoy the benefit of his support in the care of the children. The Tribunal is satisfied that Ms N is suffering significant mental health concerns as a consequence her present circumstances and that her personal health as well as her capacity to be able to care for the children would be significantly assisted by the physical presence of the applicant.
In the Tribunal’s view, on balance, the correct or preferable decision in the circumstances of this case is to not exercise the discretion under section 501(1) of the Act to refuse to grant the applicant’s visa.
DECISION
The Tribunal sets aside the decision under review and in substitution decides not to exercise the discretion under section 501(1) of the Act to refuse to grant the applicant a Bridging E (Class WE) visa.

I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision of The Hon. Matthew Groom, Senior Member

...[sgd]....................................................................
Associate
Dated: 2 February 2022

Dates of hearing: 20–21 & 24 December 2021

Applicant: By videoconference

Advocate for the Joined Party: Mr Siva Valliappan

Solicitors for the Joined Party: Minter Ellison

[2022] AATA 132

5 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Dates of hearing:	20–21 & 24 December 2021
Applicant:	By videoconference
Advocate for the Joined Party:	Mr Siva Valliappan
Solicitors for the Joined Party:	Minter Ellison