LYTW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2824

LYTW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2824 (14 August 2023)
Division:GENERAL DIVISION
File Number(s): 2023/3594
Re:LYTW
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member McLean Williams
Date of Decision: 14 August 2023
Date of Written Reasons: 31 August 2023
Place:Brisbane

Pursuant to s.43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the Delegate of the Respondent dated
22 May 2023 to not revoke the cancellation of the Applicant’s visa, with a decision that this Tribunal exercises the discretion conferred by s.501CA(4) of the Migration Act 1958 (Cth).
................[SGD]................
Member McLean Williams
Catchwords
MIGRATION – Cancellation of Partner Visa (Class BC) (Subclass 100) visa under
s. 501(3A) of the Migration Act 1958 (Cth) – where Applicant does not pass the character test – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 421
FYBR v Minister for Home Affairs [2019] FCAFC 185
Khalil v Minister for Home Affairs [2019] FCAFC 151
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446
Mejov v the Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 1851
MJNN and Minister for Home Affairs [2019] AATA 3205
Morgan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 392
Wang and Minister for Immigration and Border Protection [2014] AATA 89
Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366
Secondary Materials
DFAT Country Information Report Papua New Guinea – September 2022
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member McLean Williams
31 August 2023
INTRODUCTION

On 14 August 2023 the Tribunal set aside and substituted the decision made by the Delegate of the Respondent on 22 May 2023 to not revoke the cancellation of the Applicant’s visa with a decision that this Tribunal exercises the discretion as conferred by s.501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
In accordance with the Full Federal Court decision in Khalil v Minister for Home Affairs [2019] FCAFC 151 (‘Khalil’), the Tribunal now publishes the Written Reasons for that decision. In Khalil, the Full Federal Court said:
[41]The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271 273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required to give its reasons, oral or in writing, within a reasonable time of the decision.
…
[48]What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons. …
[Emphasis added]
On 16 February 2022 a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) mandatorily cancelled the Applicant’s Partner Visa (Class BC) (Subclass 100) (‘the visa’) under section 501(3A) of the Act, on the basis that the Applicant did not pass the character test, by reason that he had a ‘substantial criminal record’ in accordance with paragraphs 501(6)(a) and 7(c) of the Act, and because he was serving a sentence of imprisonment on a full-time basis in a correctional facility as at that date.[1]
[1] G22 p.98-104.
On 4 March 2022 the Applicant made representations seeking revocation of the cancellation decision (‘the revocation request’).[2]
[2] G11 p.53-56.
On 22 May 2023, the Minister’s Delegate decided that the power in s.501CA(4) of the Act was not enlivened, and accordingly the revocation request was refused, such that the Applicant's visa remained cancelled (‘the refusal’).[3]
[3] G3 p.11-17.
The Applicant then applied for a review of the refusal in the General Division of the Administrative Appeals Tribunal on 25 May 2023, which was within the nine-day statutory review period.[4] The Tribunal has jurisdiction to review the refusal, pursuant to s.500(1)(ba) of the Act.
[4] G2 p.4-10.
The Hearing of this application for review took place over three days – on 1, 2, and 9 August 2023. At the Hearing, the Tribunal heard oral evidence from the Applicant, as well as from:
·Ms VG (the Applicant’s partner); and
·Ms RJ.
The Tribunal also considered the documentary evidence submitted by the Applicant and the Respondent, as now detailed in the attached Exhibit Register marked as Annexure A to these reasons.
BACKGROUND
The Applicant, now aged 30, is a citizen of Papua New Guinea (‘PNG’), who was born in January 1993.
In February 2013, when 20 years of age, the Applicant arrived in Australia on a Partner (provisional) (Subclass 309) visa accompanying his wife, Ms VG. The Applicant was subsequently granted a Class BC (Subclass 100) Partner visa in March, 2015.
Early years
It is uncontentious that the Applicant had a difficult upbringing. Born in Mount Hagen in the PNG highlands, the Applicant was initially raised by his grandmother until she passed away. Subsequently, the Applicant was raised by his mother and by a man who was initially introduced to the Applicant as his father, yet whom was, in reality, his stepfather.
The Applicant testified that only himself and his stepfather are currently aware that they are not biologically related. However, the Applicant says that even before knowing the truth of the matter his stepfather had always suspected that the Applicant was not his biological child, by reason of their differing appearance.[5] Photographs put into evidence before the Tribunal do make it plainly obvious that the Applicant and his stepfather are unlikely to be biologically related.
[5] Transcript day one p.38.
For a number of years, the Applicant says that he was subject to regular verbal and physical abuse at the hands of his (then understood to be) ‘father’, and from his father’s ‘other’ wife. In his own words the Applicant was, ‘…frequently beaten so badly that I could not walk for days and would also be starved; I don’t know what was wrong with them, but this was how I lived and [I] have had to deal with these memories and emotions in recent years.’[6]
[6] SG87 p.537.
At the age of 13, the Applicant’s biological mother fell ill with cancer, such that the Applicant ceased his schooling to be able to act as her full-time carer. This went on for a period of approximately two years, before the Applicant’s mother finally succumbed to her illness.
Towards the end of her life, the Applicant’s mother confessed to the Applicant that the man whom had been originally introduced as the Applicant’s ‘father’ was not his biological father and, still unbeknownst at that stage to the Applicant’s ‘father’, the Applicant had been conceived prior to his mother meeting her husband. The Applicant’s mother had made, in effect, a death-bed confession, and the reality of the Applicant’s paternity was confirmed at around this time for both the Applicant, and his stepfather.
After his mother’s death, the Applicant’s schooling did not resume, by reason that his stepfather refused to fund the Applicant’s further education. At this stage the Applicant was also kicked out of home by his stepfather, and was forced thereafter to fend for himself, obtaining ad hoc work in the community. Reflecting on the impact of his upbringing many years later, the Applicant expressed: ‘[t]hese things that occurred to me had negatively impacted me psychologically. It impaired my thinking and ability to cope with my stress, anxiety, and the past traumas that I experienced, I know I had turned to alcohol to escape from all the misery that I was in and now I find myself in this situation.’[7]
[7] SG87 p.537.
Regarding the link between his upbringing and subsequent alcoholism, the Applicant also stated:[8]
You can also see the underlying issues that I had which was alcohol issue and the childhood traumatic experience that I had, and how these things have changed my behaviour very negatively. Though some point in times I did not aware of my surroundings and did not pay attention to those bad behaviours that impacted me negatively until came a time where I came to a sense of realizations to do something to help rescue myself from the mass that I was in. and also, on that note, you can see all the relevant steps I undertook to address those issues and the driving forces behind to why I used alcohol.
[8] SG87 p.536.
Applicant’s relationship with Ms VG
The Applicant met Ms VG in 2010, through a church in PNG where Ms VG was undertaking missionary work.[9]
[9] Transcript day one p.33.
Initially, the Applicant had been hired as Ms VG’s porter and security guard, to enable her to travel to further outlying villages. In 2012, their relationship became romantic. At that time, the Applicant was approximately 18 years of age, yet Ms VG was aged in her forties.
The Applicant and Ms VG were married in Port Moresby, in 2012. When asked why the union did not occur in his home village in the highlands, the Applicant stated, ‘I didn’t really want to publicly do it, just for my own safety.’[10]
[10] Transcript day one p.38.
Although married in a religious ceremony in Port Moresby, their marriage was never legally registered in Papua New Guinea. This fact was not even discovered by
[11] Transcript day one p.36.
Ms VG and the Applicant until their Papua New Guinea marriage certificate was submitted to Centrelink after their arrival in Australia, at which stage Centrelink advised the Applicant and Ms VG that their marriage certificate could not be recognised in Australia; because the certificate did not list an official PNG registration number.[11] Ms VG told the Tribunal that, at that point, the marriage certificate was sent back to Papua New Guinea by her in order for a registration number to be affixed to it. Yet subsequently, the document became ‘lost’ in PNG, and was never returned to Ms VG. The Tribunal has seen wedding photographs from the marriage ceremony that both the Applicant and Ms VG now say took place in Port Moresby, and accepts the fact of that marriage ceremony having taken place.
The Applicant arrived in Australia in February 2013 in company with Ms VG, travelling on a Partner (provisional) (Subclass 309) visa. Since first arrival, the Applicant has made one trip outside Australia, between 20 July 2014 and 13 November 2014, during which time he accompanied Ms VG whilst she undertook further Christian ministry work, this time in Fiji.[12]
[12] G21 97, Transcript day one p.9.
During his time in Australia, the Applicant has now lived in a number of locations including Gatton, Cairns, Mareeba, Kuranda, Greenwich (NSW), Newcastle, Gosford, Bundaberg, and Toronto (NSW).[13] At the Tribunal hearing, it was asserted that
[13] Transcript day one pp.31-32.
[14] Transcript day one p.32.
Ms VG ‘loves to travel’, and that the Applicant had always obligingly followed after her.[14]
However, the Applicant’s relationship of full-time cohabitation with Ms VG only lasted approximately two years. At the Hearing, the following exchange transpired about that:[15]
And did you begin living with Ms [VG] from the date that you arrived in Australia?---Yes.
And when did you cease living together the first time?---That was in – first apart or - - -
Yes, the first time it was apart?---Yes. Yes, yes, that’s in 2015. Yes.
So you were together for around two years in Australia?---Yes.
And you separated shortly after you received your - - -?---Two and – two and some months. Two and some months, maybe a few months. Yes.
And you separated shortly after you received your permanent partner visa; is that correct?---Yes, yes.
[15] Transcript day one pp.34-35.
Of the reasons for the relationship breakdown, Ms VG stated that she ‘told him to go,’ because the Applicant ‘was getting into pornography and I could not trust him because he had been unfaithful.’[16] When the Applicant was deciding upon a new place to live after the separation, Ms VG told the Applicant that he should ‘go to Cairns, or Brisbane’.[17] However the Applicant instead moved to Gatton, Queensland, and has been based predominantly in the Gatton area in the period since then. The Applicant took up employment as a farm labourer.
[16] Transcript day one pp.83-84.
[17] Transcript day one p.32.
At the Hearing, Ms VG testified that when she was in a relationship with the Applicant, he ‘drank like once a year. He didn’t drink. … I’ve always known him as a sober person.’[18] However, when she visited him at Gatton, she saw him drinking, and ‘knew there was something seriously wrong’.[19] Ms VG postulates that, ‘the cause was these memories that were, you know, coming back to him that he was like I said he couldn’t cope with them. He had no way to deal with them. He didn’t know how to deal with them, except for alcohol’.[20]
[18] Transcript day one p.82.
[19] Transcript day one p. 84.
[20] Transcript day three p.162.
In her statement dated 10 July 2023, Ms VG further explained: [21]
…during the time of our separation it was then that suppressed memories of his childhood abuse came to the forefront of his mind. These memories were the trigger behind [the Applicant’s] drinking, I am aware of this because we were still in communication. Then it was that he sought comfort and consolation in alcohol, it was relatively few years in his life that [the Applicant] drank, he is certainly not a long time alcoholic, not at all, although over that time his character certainly took a nosedive as alcohol became a way for him to ‘forget’.
[The Applicant] was experiencing PTSD. He did not know how to cope, the memories were crippling him…
[21] SG79 p.366.
The Applicant explained that he started drinking in 2015, at around the same time as when he separated from Ms VG.[22] Weighed down by his childhood memories, he ‘tried to cope in life, adjust in life’ and ‘really struggle[d]’.[23] The breakdown of the Applicant’s relationship with Ms VG in 2015 thus appears to be a factor influencing the Applicant’s drinking, and consequently his behaviours at the time of the commission of the index offence which has now brought about these visa status review proceedings.
[22] Transcript day one p.30.
[23] Transcript day one p.30.
Despite the Applicant and Ms VG no longer living together, it is to be observed that they have not divorced, and each still regard themselves as married, one to the other, even in circumstances in which their marriage has not been formally recognised as such in Australia. The Applicant remains on good and close terms with his former partner, as is similarly the case by Ms VG with the Applicant.
Ms VG has suffered from chronic myeloid leukaemia (‘CML’) for almost 20 years now. Her condition has been one marked by long-term medication resistance, thus necessitating several changes in her treatment regime over time; thus causing Ms VG to experience a number of periods of severe weakness and hospitalisation, yet also interspersed with other periods, of comparatively improved health, at least during those epochs wherein the medication regime has proved more successful, in terms of it holding the underlying CML condition at bay.
Since forming their partnership, and since its breakdown – and despite Ms VG’s peripatetic lifestyle – the Applicant has contributed to Ms VG’s care during those epochs in which she has been suffering from the effects of her illness, and the rigours arising during the treatment of same. When Ms VG needs help, the Applicant will go and visit or stay with her, or she will go and visit and stay with him.[24] The Applicant also assists Ms VG financially where needed. In this regard, the Applicant’s attitude was expressed to the Tribunal as: ‘the help that I give to her is not based on anything. It was what someone make a promise and keep that promise and that’s on that base that’s all I – that’s all I – that’s all I live with, despite my own problem, but that’s my vow promise that I made, and I keep that as a contract.’[25]
[24] Transcript day one pp.46-47.
[25] Transcript day one p.48.
The Applicant testified that he has had three girlfriends since his relationship with
Ms VG broke down.[26] However, despite these other relationships, the Applicant has maintained consistent contact with Ms VG. In relation to his ongoing relationship with
Ms VG, the Applicant explained:[27]
…because I promised, and I make my vow that I’m going to be with her and help her in times of whatever the needs with her. So, despite I had other – [Ms VG] knows them – [Ms VG] knows a few of those girlfriends that I had and sometimes they talk and they – like friends or something.
[26] Transcript day one p. 35.
[27] Transcript day one p. 35.
The Applicant has held consistent employment in Australia, undertaking unskilled labouring-type work. He has worked as a labourer on farms, as well as in an abattoir. In 2014, the Applicant suffered from a work-related upper back/shoulder injury whilst working on a banana farm, from which he now still experiences some symptoms.[28]
[28] Transcript day one pp.32, 70.
There is unchallenged evidence before the Tribunal attesting to the Applicant being a reliable worker.[29]
[29] G18 p.91.
Applicant’s criminal and traffic history:
The Applicant’s criminal history and traffic offence history in Australia commences in 2015.
Firstly, there was an incident where the Applicant failed to stop at a stop sign. This resulted in demerit points.
In February 2016, the Applicant appeared in the Gatton Magistrates court for an offence of committing a public nuisance whilst on or in the vicinity of licensed premises. For this offence the Applicant was fined, with no conviction recorded. According to subpoenaed court records the offence giving rise to this court appearance had transpired on
11 October 2015. The Queensland Police Service Court Brief described the circumstances as follows:[30]
Police took up with a female person at the location. The female appeared distressed and had obvious facial injuries, namely a large lump forming above her right eye as well as redness and tenderness below the eye. No formal assault complaint was forthcoming from the female who was the defendants’ partner.
Police obtained several versions from witnesses in relation to what had occurred. Witnesses stated that the defendant had ran over from across the road and assaulted the female by punching her in the face several times and then throwing her to the ground.
Another male has attempted to intervene, and he too was assaulted by the defendant who has punched him in the mouth causing him to a have a split and swollen lip (no formal complaint for this assault).
The defendant was spoken to again and offered an opportunity to reply to the version obtained from witnesses. The defendant agreed with the versions provided and made admissions to assaulting the female due to jealousy over the female person giving other males alcohol. The defendant stated that he had been at a fund raising event at the Exchange Hotel earlier just prior to being on the street.
[30] SG40 p.123.

During the Tribunal Hearing, the Applicant was subjected to cross-examination in relation to this particular matter. Under that cross-examination, the Applicant informed the Tribunal that he had been at a social event at the Exchange Hotel in Gatton, hosted by members of the PNG diaspora community (of which there are many in the Gatton district, mostly also working in the agricultural sector). The licensed venue had, by that stage, closed for the evening, and the Applicant had purchased takeaway beer, in readiness for the social event relocating. The Applicant left his beer momentarily, to go to the bathroom. On his return, the Applicant discovered that his intoxicated girlfriend (‘the Complainant’) was in the process of distributing his beer to other male persons, such that the Applicant reacted in the manner now described in the preceding paragraph.
The Applicant told the Tribunal that, at the time of the offence, ‘I wasn’t really drunk, but I was just – I was just – just that I got a bit annoyed. I get bit – bit upset that my – my drinks was taken and given away, and so – and I got bit upset why someone would do such thing.’[31]
[31] Transcript day one p.23.
In his final submissions, the Applicant further stated:
In that particular night outside Laidley hotel, she had given away my takeaway beers which I had previously put in her vehicle for safekeeping, she gave them away to a group of men that I did not even know, and I didn’t know what was going on between her and them. She flurts [sic] and was looking for favors [sic] and to win their attention. I was upset but I was not angry and I did run across the road to confront her about why she gave away my takeaway beers, she was in response very violently argumentative with me and dismissed what she had done as nothing. In reality she had stolen my beers to give to men who were in appearance to me like other boyfriends. She continued arguing with me and it was then while we were arguing that those men who she gave away my beer to, came in to support her, then she started violently pushing and pulling at me and I wanted her to let go of me, but she kept pulling me and then one of the men came over and was pushing in his hands at me grappling and I pushed him away, I definitely did not punch him although he obviously did get hurt in the event, I don't know how he got hurt like that, I definitely did not punch him, next what happened was in my own self-defense [sic] I pushed [the Complainant] away and I purposely tripped her with my leg so she fell to the ground which I did in self defence to free myself from her attack. I further declare that the report of the dissertation of my supposedly punching [the Complainant] and the man with the split and swollen lip is incorrect as I did not do that. This is why there was no formal complaint made by either of them.
The Applicant referred to the victim in his evidence as his ‘girlfriend’, and also stated that their intimate relationship thereafter continued for a further two years, despite this incident.[32]
[32] Transcript day one pp.22-23.
Next, in May 2017, the Applicant was convicted and fined for the offence of wilful damage and for his being drunk and disorderly on licensed premises. This incident occurred on
[33] SG40 p.130.
6 August 2015 at the Royal Hotel, Gatton.[33] According to the police particulars, the Applicant had been observed to be standing at a bar table inside the crowded hotel. He then unzipped his fly, and urinated on the carpet, underneath the bar table where he had been standing. When asked to leave the premises by Security Staff, the Applicant became argumentative, and told them that he ‘hadn’t done anything wrong’. The Applicant continued arguing with security staff, until the police were called. This incident was not traversed in any detail at the Hearing.
The Applicant’s traffic history includes offences for driving a motor vehicle while under the influence of alcohol. In 2015, the Applicant was caught driving with a blood alcohol level of 0.055 percent, for which he was fined, and disqualified from driving. Again, in 2017, the Applicant was fined and disqualified, having driven with a blood alcohol level of 0.054[34] percent.
[34] The Tribunal notes that the Judge’s sentencing remarks (at G7, p.41) indicate that the Applicant’s blood alcohol content on this occasion was 0.54 percent. As the Judge prefaces this statement regarding the Applicant’s prior offences of driving motor vehicles whilst over the specified alcohol limit by acknowledging that, ‘neither of them were particularly serious examples’, the Tribunal considers this to be a typographical error and is intended to be 0.054.
Due to the accumulation of demerit points, the Applicant was also subject to a ‘good driving behaviour’ period, in 2018.
In 2019 the Applicant had a speeding offence, although it was ‘not a particularly serious example of that.’[35]
[35] G7 p.41.
The offending resulting in the Applicant’s imprisonment:
On 8 August 2020, the Applicant was driving at an estimated speed of 150 kilometres per hour on the Warrego Highway at Minden, Queensland. This was described by the sentencing judge as ‘excessively fast’ and ‘clearly well in excess of the speed limit’, which on that stretch of road was limited to 80 kms, and then 100 kms.[36] In addition to speeding, the Applicant had been witnessed driving in a dangerous manner, overtaking and weaving through other vehicles, prior to the Applicant colliding with another vehicle, from behind. This other vehicle was occupied by a male driver and female passenger (‘the victims’).
[36] G7 p.39.
As a result of this collision, the other vehicle was forced off the road, and rolled, an estimated five times. The victims were trapped in the vehicle for a period, prior to their being eventually extracted, and taken to hospital. The male driver suffered from comminuted fractures of the right wrist, as well as dislocation of the bones in the right arm, thus requiring two surgeries. He also suffered fractures of the spine; a laceration to the scalp; and pulmonary contusions. Meanwhile, the female passenger suffered a fracture to the left humerus in the upper arm, as well as a fragmentation of the collar bone; a collapsed lung; and rib fractures.
In accordance with the prosecution brief, the following events transpired after the accident:[37]
When police arrived at the scene of the crash, they witnessed the [Applicant] becoming agitated at the paramedics, as they were standing on his vehicle in order to get access to the [victims] and administer first aid. Police escorted the [Applicant] from the scene and asked what had happened.
The [Applicant] told police that i[t] was “no big deal” and that he was “concerned about my car.” The defendant was slurring his speech, unsteady on his feet and smelled strongly of alcohol.
[37] SG16 p.49.
At the police station following the incident the Applicant’s blood alcohol concentration was measured as 0.188 percent. This was later described by the sentencing judge as ‘a very high reading.’[38]
[38] G7 p.40.
In December 2021, the Applicant was convicted in the District Court of Queensland at Ipswich of the offences of ‘dangerous operation of a vehicle causing death or grievous bodily harm whilst adversely affected by an intoxicating substance’ as well as for the summary offences of disobeying the speed limit, and driving a motor vehicle whilst under the influence of liquor; and being over the specified alcohol limit.[39] The Applicant pleaded guilty to each charge. Relevantly, these were accepted by the Court as constituting ‘early pleas’ of guilty, thus attracting some sentencing discount.
[39] G7 p.43.
In his sentencing remarks, His Honour Judge Lynch QC DCJ noted that the Applicant had been ‘a useful and contributing member of the community.’[40] Ultimately, the Applicant was sentenced to four years’ imprisonment, to be suspended after 12 months, for an operational period of four years.
[40] G7 p.42.
Whilst in prison, the Applicant maintained employment in the prison laundry from

7 January 2022 until 5 December 2022, rising to the ‘Team Leader’ position on

22 July 2022.[41] No breaches or incidents were recorded against the Applicant during his period of imprisonment. The clear impression formed by the Tribunal is that the Applicant was a model prisoner, who endeavoured to use his time whilst in custody as productively as he could.
[41] G10 p.52.
Rehabilitation efforts
Prior to his sentencing in December 2021, the Applicant had undergone a three-month alcohol addiction treatment program at ‘Logan House’, a residential treatment facility based at Logan. According to the evidence of Ms VG:[42]
[42] Transcript day 3 p.145.
… And I got him – he promised me that he would go to Logan House straight away because I knew of the extra quality counselling that they provide. That it’s not like – it’s not just a rehab. [The Applicant] didn’t need a rehab. He wasn’t an alcoholic because he didn’t drink after the accident. He didn’t drink before he went to jail. There was only one time that he drank and after that straight away and I spoke to him about it. It was arranged that he was going to get a counsellor from Laidley, through I think the community centre.
Yes?--- [The Applicant] didn’t have a drinking problem after the accident but I wanted him to go to that place specifically.
All right so you initiated the discussion about Logan House?---Yes.
And that was down in Ballina when he’d come down?---Yes. Yes.
So just tell me about that conversation and what you said to him and what he said to you?---Well he, we knew, we’d been to church and there was a guy called Chris.
Yes?---And we knew him, and he was an alcoholic and I told him about Chris. That Chris had been to a lot of places but that he’d gone to this place called Logan House and that he was there. Now I gave him – I actually think you spoke to him on the telephone perhaps while he was in Logan House.
[The Applicant]: Yes, the church. MS [VG]: Yes, you met him at the church. I don’t know whether you ended up speaking to him at Logan House or not or maybe I did or whichever. But he was getting the help that he needed. Sort of like looking into the cause. You know, if you have a problem you’ve got to look at the cause and that’s what they were doing and that was what [the Applicant] needed.
MEMBER: All right. Now, [the Applicant] was no longer drinking at this stage because you said that after the accident he stopped?---That’s correct.
Why did you have the conversation about his needing to Logan House if he’d stopped with the drink?---Because I know the cause was because of his father.
All right?---I knew the cause was because he had emotional issues that had not been dealt with. That was also the thing that caused – I believe was the drive behind our break-up, as well.
The Applicant successfully completed the residential alcohol treatment program at Logan House on 16 April 2021.[43] While at Logan House, the Applicant completed a number of his ‘service plan’ goals including: remaining abstinent from alcohol use by identifying triggers to excessive alcohol use, and learning new coping strategies regarding past traumas and ongoing stressful situations; completing a relapse prevention plan which identified that the Applicant would like to attend individual alcohol and other drug counselling, have conversations about past, current and future triggers, and make plans for future potential triggers; and completing a referral to a psychiatrist for his experiences of recurrent instances of childhood trauma.[44]
[43] G19 p.94.
[44] G20 p.96.
As indicated above, the Applicant was sentenced to serve twelve months actual imprisonment on 6 December 2021. At the conclusion of that term the Applicant was moved to immigration detention, on 5 December 2022, where he is still currently being held. In effect therefore the Applicant has undergone a further eight months detained. Since entering the immigration detention centre the Applicant has been attending a psychologist. Further, whilst in immigration detention the Applicant has also completed a number of other courses online, including:[45]
·Childhood Abuse Recognition, Investigation and Protection;
·Drug and Alcohol Abuse;
·Anger Management;
·Drug and Alcohol Abuse 101;
·Building Self Esteem;
·Understanding Addictions;
·Workplace Drug Use; and
·Domestic Violence 101.
[45] SG87 pp.537-538, SG66, SG67, SG71, SG72, SG74, SG76.
The Applicant still also attends an on-line ‘smartrecovery’ zoom meeting, daily.[46] In this online group meeting participants share their struggles with drugs, alcohol and other matters. The Applicant has also participated in ‘Mindspot clinic’, an on-line course for PTSD and Drug and Alcohol Counselling with IHMA within the Immigration Detention Centre.
[46] SG87 p.538.
According to the Applicant’s immigration detention file, the Applicant ‘is always well mannered, polite and well groomed. He is popular with his fellow detainees and gets along well with his roommates.’[47]
Evidence of other witnesses
[47] G15 p.77.
Ms RJ
Ms RJ provided an undated, signed statement to the Tribunal,[48] and also gave oral evidence at the Tribunal Hearing, during which it became clear that Ms RJ – who is also originally from PNG – has resided in Australia for many years, and did not come to know the Applicant until after his arrival in Australia.
[48] SG88 pp.540-541.
In her statement, Ms RJ stated that she is ‘like [the Applicant’s] Aunty,’[49] although it also became clear that Ms RJ and the Applicant are not blood relatives. Ms RJ told the Tribunal that she has known the Applicant for ‘some years,’ and described him as a ‘caring and loving person’ who ‘open heartedly helped me in whatever little way he could.’
[49] SG88 p.540.
Regarding the Applicant’s alcoholism, and subsequent car accident, Ms RJ stated:[50]
… I later notice that he was heavily involved into drinking and that really got my attention, and I was very concerned about his personal wellbeing. At some point I asked him, why he was destroying himself by drinking a lot during weekends. He would be very emotionally share with me about his childhood traumas that he went through and how devastated he was. He told me about him losing his both grandmother and his biological mother in a very young age. He told me about how he cared for his mother in PNG in Mt Hagen General Hospital for almost two years while leaving behind his school and how he was abused by his stepfather who raised him.
I can understand how devastated he must be for him to go through at the time and yet managed to survive through those adversities back in Papua New Guinea especially when losing both his grandmother and his biological mother…
…
Recently in 2020, [the Applicant] told me that he had a very bad car accident…
[50] SG88 p.540.
Regarding any difficulties that the Applicant may face if removed from Australia and returned to PNG, Ms RJ stated:[51]
As I have mentioned … in regarding the situation back in Papua New Guinea is very difficult and it would be very detrimental for him mentally, emotionally, psychologically and physically if he were to send back to Papua New Guinea.
And, he does not have anyone back in PNG where he can get his support, and [the Applicant’s] departure will be detrimentally impact me and other family members and friends who are in Australia.
[51] SG88 p.541.
Mr JK
Mr JK provided a character reference for the Applicant,[52] but did not give oral evidence at the Hearing. Relevantly, Mr JK’s statement provided:
[52] SG78 pp.363-364.
I have known [the Applicant] for a very long time since his arrival in Australia with his Australian partner and he is like a very close family member to me. …
[The Applicant] is a good person who is caring and loving by nature. He always provides the support and help whenever needed. When I have my issues or problems, he would step in and help me in whatever possible way he could.
He is someone, who is reliable and who helps the community when there’s an issue or problem arise. He stands up for the community and always talks and brings peace to the community. Those time that I have known [the Applicant], he is very easy-going person and a hard-working guy who loves doing his job.
Somewhere around late 2020, [the Applicant] told me that he had a very serious car accident. I was very shocked to hear about the all [sic] incident.
After following his incident, I heard that he was doing Rehabilitation in Logan-Lives Lived Well. I encouraged him to stay strong and do the programs and he did manage to complete his rehabilitation programs. I was very much please that he was doing the right thing to help himself… I do believe that he had taken every step very seriously by rehabilitating himself and that is something positive to his progress in this journey and I believe that he can use his past to help other people who are in the similar situation.
I am currently aware that he is battling with his visa situation, and I can understand the pressure that he is going through while after released from prison and in Brisbane Immigration Detention Centre.
However, that does not justify his action. I know he has fully acknowledged his fault and taken the responsibility to do the right thing to be a better person.
Sending him back to Papua New Guinea would be very disastrous for him because he doesn’t have anyone back in PNG as I know that his mother passed away when he was a young boy and living in PNG is very difficult and government services are very poor.
I also come from Papua New Guinea, and I am honest that the living condition in PNG is very difficult and tough and it would be very detrimental for him mentally, emotionally, and physically if he were to return back to Papua New Guinea.
[The Applicant’s] departure will affect me and my family in a great deal and, I believe other family members and friends will also miss him greatly.
Ms VG
Ms VG who has been married to the Applicant, provided multiple statements in support of the Applicant, as well as her giving oral testimony, upon which she was cross-examined.
In an undated and unsigned statement, Ms VG stated:[53]
[The Applicant] came to Australia as my husband and we have taken vows of love and continued care for each other, although we have had challenges and separations, our devotion, love and duty of care has remained. Although I asked [the Applicant] to leave originally because of his unfaithfulness, [the Applicant] has maintained his love, devotion, and responsibility in his continuing care of and for me. Even during the time, we were living separately [the Applicant] would still come to help in my times of need such as my moving house, needing a driver and also financially. When I was very sick and needed a carer [the Applicant] gave up a well-paid job to come and care for me.
[The Applicant] and I support each other, he is my immediate family, and I am his, there is no-one else who understands my particular needs and it is always [the Applicant] that I am comfortable with when my condition declines and I am vulnerable, my condition is serious, and I have been times I physically need a full-time career.
My form of leukemia is medication-resistant and after a recent bone marrow biopsy the doctor has informed me that I am at the end stage of my disease, I want to do all I can to stay alive doing natural therapies, it is not the first time I have been told I will die by specialists’, I have struggled and suffered much pain, I know what is ahead of me. [The Applicant] has often been by my side helping to meet my needs, his compassionate heart and strong and willing hands are needed to be with me now more than ever, please grant [the Applicant] his permanent visa.
[53] SG89 pp.542-543.
On 10 July 2023, Ms VG provided a further statement in support of the Applicant:[54]
…I realise the government has concern regarding the possibility of [the Applicant] reoffending upon release, I am thankful that [the Applicant] has this opportunity to appeal his case and I am here making my appeal also. It is worth noting that [the Applicant] has not come from a family with any history of drug or alcohol abuse. He did not grow up surrounded by its influence, and also worth noting is that he did not go looking for it as a youth. I know and have stayed in PNG with the family and people who surrounded [the Applicant] in the places where he grew up. I know them personally, except for those who passed away, I recognise these are all important factors. From childhood [the Applicant] was seen to grow into a man with integrity and strong Christian values, especially known for his kindness, compassion and respect. When he came to live in Australia as my husband the only time [the Applicant] ever drank was approximately once a year at social gathering. The temporary decline in his behaviour was the result of cause and effect which had not been realised or dealt with.
I know [the Applicant] intimately, I knew he needed counselling from long before, we did at one point have marriage counselling, but I knew he also needed personal counselling because he had been severely abused as a child, but [the Applicant] didn’t want to, our marriage was in jeopardy due to his getting into pornography which was causing marriage problems, the councillor we saw together also would meet with us individually and he had been urging for [the Applicant] to do more counselling because of his suppressed emotional damage from childhood which he believed was the root of the problems we were dealing with. I imagine fear of looking into what he went through, was the reason why [the Applicant] refused to continue, which considering, though unwise, is very understandable, however during the dime of our separation it was then that suppressed memories of his childhood abuse came to the forefront of his mind. These memories were the trigger behind [the Applicant’s] drinking, I am aware of this because we were still in communication. Then it was that he sought comfort and consolation in alcohol, it was relatively few years in his life that [the Applicant] drank, he is certainly not a long time alcoholic, not at all, although over that time his character certainly took a nosedive as alcohol became a way for him to ‘forget’.
[The Applicant] was experiencing PTSD. He did not know how to cope, the memories were crippling him and because he had no further personal counselling, had no knowledge of coping mechanisms and had not addressed the root of his problem, he was for a period of time out of control and a danger to himself and others. Just before [the Applicant] went to Logan house rehabilitation by choice, he was living with me and also assisting with helping take care of my needs as there was then no medicine available for my condition (long story).
It was during the time he was awaiting the court case; I was aware that he did not drink at all, and he showed no desire to drink, not at all, he only wanted to attend all AA meetings because he was getting so much from them. Before I was later admitted to hospital, I urged him to go to Logan house because I knew it was different to other rehabs, I am aware of this because I knew the doctor personally who established the chain and I have been often involved with indigenous communities. [The Applicant] promised to and did go there and for the first time he began receiving personal counselling with a physiologist [sic].
Over the years I have been very aware of the changes and choices [the Applicant] was making, I saw his decline, his struggles and am glad to say, also of his strength gained.
His long stay at the immigration detention has made a huge difference as he has had further appointments with a physiologist, [sic] learnt more about the PTSD information and gained skills, I know he still has phone consults related to another course he’s been doing to help him advance. He has often been excited to share with me what he has learned, about the various courses he’s been doing, what he gets out of them and I have clearly seen the turnaround in how he communicates and feels. … I have been on this journey with him, I have witnessed and felt the ups and downs, we are intimately connected, and [the Applicant] is my family, I turn to him in my need and he does likewise, we support each other. Not long before his final court case when I was for a period living with him in Gatton, the time was after [the Applicant] spent 3 months at Logan house and he was not drinking at all, always he was remorseful for what he did and really personally wanted to help and make it right with the people who were hurt in the car accident. I firmly believe and can say with confidence that [the Applicant] is no longer a danger to society.
This whole experience, though most unfortunate for those that were hurt along the way, has resulted in a door being opened, mess sorted and removed, skills gained, better choices mapde [sic] and relationships restored.
[The Applicant] can now intelligently address the circumstances that have existed in his life without depression, bitterness, hatred or self-pity, this is a victory and also the foundation of a resilient character and give me great hope for his continued personal development.
[54] SG79 pp.365-367.
ISSUES

The Tribunal considers the issues to be:
(a)whether the Applicant passes the character test, as defined in section 501 (subparagraph 501CA(4)(b)(i)); and
(b)if he does not, whether there is now ‘another reason’ why the cancellation decision should be revoked (subparagraph 501CA(4)(b)(ii)).
LEGISLATIVE FRAMEWORK
Does the Applicant pass the character test?
As the Applicant was sentenced on 6 December 2012 to a head sentence of more than
12 months imprisonment, the Tribunal finds in consequence that he has a ‘substantial criminal record’. As a matter of law, the Applicant cannot pass the character test.
Consequently, the task for the Tribunal is to exercise the discretion in s.501CA(4)(b)(ii) and consider whether or not there is now ‘another reason’ why the original visa cancellation decision under s.501(3A) should be revoked.
In considering whether to exercise the discretion, the Tribunal is bound to comply with any directions made under the Act by virtue of s.499(2A).[55] In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Ministerial Direction’) is applicable. The Ministerial Direction outlines a framework for decision-makers with respect to exercising the discretion outlined in s.501CA(4)(b)(ii) of the Act.
[55] Brown v Minister for Immigration and Citizenship [2009] FCA 1098 at [16] (per Edmonds J); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51] (per Bell, Gageler, Gordon and Edelman JJ).
Relevantly, paragraph 6 of the Ministerial Direction provides:
6. Making a decision
Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
The principles contained within 5.2 of the Ministerial Direction 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 Ministerial Direction sets out the five ‘Primary Considerations’ that the Tribunal must consider when exercising its discretion:
(1)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’);
(2)whether the conduct engaged in constituted family violence (‘Primary Consideration 2’);
(3)the strength, nature and duration of ties to Australia (‘Primary Consideration 3’);
(4)the best interests of minor children in Australia (‘Primary Consideration 4’); and
(5)expectations of the Australian community (‘Primary Consideration 5’).
The Ministerial Direction then stipulates at paragraph 9(1) various ‘Other Considerations’ which must also be taken into consideration:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
These considerations are to be regarded as ‘other’, as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
...Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non-refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
When considering Primary Consideration 1, paragraph 8.1 of the Ministerial Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm arising in consequence of criminal activity, or other serious conduct by non-citizens. Decision-makers are required to have particular regard for the principle that entering or remaining in this country is a privilege, that Australia 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 to the Australian community.
When determining the weight applicable to this Primary Consideration, the Ministerial Direction (at paragraph 8.1 (2)) requires decision-makers to have regard for:
(a)The nature and seriousness of the Applicant’s conduct to date; and
(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1 of the Ministerial Direction prescribes that when considering the nature and seriousness of the non-citizen’s offending or conduct to date, decision-makers are to have regard to a number of further factors, being:
(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.
On a number of prior occasions the Tribunal has seen fit to highlight the inherent seriousness of driving offences, such as those here committed by the Applicant: MJNN and Minister for Home Affairs [2019] AATA 3205, at [54]-[55] per Senior Member Evans; Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]-[45] per SM Tavoularis; Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7] per Senior Member Bell; Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366 per Deputy President Kendal (at [54]); Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16] per Member Webb; Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20] Senior Member Poljak.
The Respondent Minister now submits (SFIC para 28), that ‘[t]he Applicant’s record of repeated driving offences tends to indicate an inability to distinguish right from wrong, and more particularly an inability to appreciate the adverse consequences of this type of offending, which places the safety of members of the public at risk.’ In light of the nature of the offending, and the impact of the incident on 8 August 2020 on its victims, the Respondent Minister now submits (SFIC para 35), that the Tribunal must treat the Applicant’s offending as ‘very serious’.
In his evidence and submissions before the Tribunal the Applicant has made clear that he accepts the inherent seriousness of the harm caused by his dangerous driving whilst intoxicated on 8 August 2020; has pleaded guilty to those offences (thus accepting the factual basis upon which he was conviction and sentenced); and has expressed appropriate remorse.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Tribunal is required to have regard to the need to protect the Australian community (including individuals, groups or institutions) from harm (Ministerial Direction paragraph 8.1.2 (1)). Accordingly, regard should be had 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 that it may be repeated may be unacceptable.
Paragraph 8.1.2 (2) provides that when assessing the risk that may be posed by the
non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(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 their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken)
(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 Respondent Minister now submits (SFIC para 37) that, when considering the risk posed by the Applicant to the Australian community in the event that the Applicant should commit further similar offences in the future, the Applicant presents as a ‘significant and unacceptable’ risk, one wherein any further similar reoffending would potentially expose the Australian community to further psychological, financial, or physical harm.
The Minister notes that the Applicant has shown some insight into his offending; has stated that he is contrite; has attended some counselling sessions aimed at addressing his past alcohol use and the negative impact of this on his family and others; has reportedly undergone treatment to address childhood trauma and to develop coping strategies for this that do not involve substance abuse; has completed anger management and an in-patient alcohol treatment program at Logan house, and notes that His Honour Judge Lynch had even commended the Applicant regarding his obvious concerted efforts towards his own rehabilitation (G7, 42). Notwithstanding all of that, the Respondent Minister submits (SFIC para 41) that, even if the Tribunal were to find that the risk of the Applicant re-offending is low, the Tribunal would still be entitled to conclude that even a low risk of re-offending is unacceptable in circumstances where the gravity of any harm that might eventuate is sufficiently serious (Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446 at [30]. When assessed in that light, the Minister now contends that this Primary Consideration should now be given ‘reasonable’ weight in favour of a decision not to revoke the cancellation of the Applicant’s visa.[56]
[56] Respondent’s Statement of Facts, Issues and Contentions, [42].
In his request for revocation of a mandatory visa cancellation under s.501(3A), the Applicant submitted that his ‘offending relates to alcoholism which I have addressed so I will not reoffend.’[57] Likewise, in written submissions addressed to this Tribunal, the Applicant submitted:[58]
Please take note that all my offences were the relate of alcohol abuse from the bad choices that I made at the time which steaming [sic] from the past childhood traumas that I suffered in Papua New Guinea. I used alcohol as a self-medication to deal with my stress, depression and traumas, these traumas had been suppressed in my mind, I began self-medicating and started drinking heavily. I acknowledged the seriousness of my situation and have been addressing it. I have taken all the relevant steps I know of to deal with the driving force behind the alcohol issues that I was caught in.
I have done the 3 months Rehabilitation programs at Lives Lived Well at Logan House, continued participating in AA meeting and receiving counselling from several psychologists, during and also, after the rehab, also I got help and support particularly from my Australian wife, family friends and others. Their aid had tremendously helped me to deal with my situation and significantly the traumas I was trying to drown.
During time spent in Rehabilitation in Logan House-Lived Lives Well, I have attended all programs and taken one on one sessions with the Treatment Facilitator in which I was able to address my drinking and childhood trauma that I had experienced. They have helped me to recognize and acknowledge my problem and identify those triggers that have influenced me in using alcohol unwisely. I was so thankful to be given the aid and the tools to know how to deal with my stress, depression and especially in how to deal with my behavior [sic] and why I used alcohol to escape from all the miseries that I was unable to cope with.
My drinking was a way to escape from all my miseries in depression resulting from my childhood trauma, my behavior [sic] was directly connected to this.
[57] G11 p.55.
[58] SG87 pp.536-537.
Conclusion: Primary Consideration 1
Ultimately, the Tribunal concludes that the nature of any harm that may arise should the Applicant engage in further similar criminal or other serious conduct in the future is apt to be ‘very serious’.
However, the Tribunal has also formed the view that it is now unlikely that the Applicant will engage in further criminal or other serious conduct in the future. During the giving of his evidence, the Tribunal formed a favourable impression of the Applicant, and is of the view that the Applicant has matured considerably, and has developed considerable understanding of the nature of the harm that was caused by his primary offending, as well as an understanding that the impact of past traumatic events in his own life resulted in his abusing alcohol as a maladaptive means by which to attempt to deal with that.
On the basis of the Tribunal’s opportunity to assess the Applicant at close quarters, the Tribunal considers it now unlikely that the Applicant will abuse alcohol again. All of the Applicant’s offending of concern has had an ‘alcohol nexus’. In the absence of that nexus when going forward, there is little likelihood of the Applicant engaging in further criminal or other serious conduct in the future. In that context, any putative future risk presented by the Applicant, which can of course never be dismissed altogether, at least now becomes an acceptable and tolerable risk; such that any weight that may reasonably attach to Primary Consideration 1 becomes appreciably attenuated.
Accordingly, the Tribunal determines that the Applicant’s prior criminal conduct should be categorised as ‘very serious’, yet that only some weight should now attach to Primary Consideration 1 in favour of non-revocation of the visa cancellation decision on account of any future likelihood of the Applicant now engaging in further similar criminal or other serious conduct in the future.

For reasons now discussed under Primary Consideration 2 (immediately below), the Tribunal records that no (‘nil’) weight has been attached as part of the Tribunal’s assessment regarding Primary Consideration 1 on account of the incident at the Exchange Hotel at Gatton on 11 October 2015.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Having regard to the events that transpired at the Exchange Hotel in Gatton on
11 October 2015, as well as for the broad definition of ‘family violence’ under paragraph 4(1) of Ministerial Direction 99, the Respondent Minister now submits that the Applicant has engaged in ‘family violence’ for the purposes of paragraph 8.2 (2)(a) of the Ministerial Direction. The Minister now contends (SFIC, para 49; see also final submissions, at para 12), that this should now be viewed ‘very seriously’ and should now be given ‘substantial’ weight against revocation of the visa cancellation decision by the Tribunal.
The Tribunal considers that the assault at the Exchange Hotel in Gatton in October 2015 must now be categorised as ‘family violence’ under the Ministerial Direction, particularly given that the Applicant was engaged in a sexual relationship with his victim at the time, and in circumstances in which they were both residing together, and economically
co-dependent on one another.
In this deliberation the Tribunal notes that, this instance of family violence by the Applicant was a ‘standalone’ event, such that it may readily be considered in isolation from the remainder of the Applicant’s criminal history, without thereby creating any kind of artificial dichotomy, as may arise in some other cases where an understanding of the total tapestry of an Applicant’s offending behaviour really necessitates a more globalised or ‘wide-lens’ approach. In this context the Tribunal is prepared to consider the issue of any weight that should attach to the offence that arose on 11 October 2015 without any concerns for the risk of unreasonable double counting arising because of adverse weight already previously assigned to Primary Consideration 1 here by reason that no weight has been attached by the Tribunal to the family violence aspect of the Applicant’s offending history during the deliberation regarding Primary Consideration 1.
The Tribunal again notes the role of alcohol in the identified family violence incident. Given the enunciated requirements of the Ministerial Direction, and in light of all of the circumstances of the family violence incident on 11 October 2015 – at least as these are known to the Tribunal and as now described earlier in these reasons – and notwithstanding the unwillingness of the victim to press any charges at the time (or even to take out a family violence protection order against the Applicant), the Tribunal determines that heavy weight against revocation of the visa cancellation decision must now attach to Primary Consideration 2, because of the Ministerial Direction.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3 (1) of the Ministerial Direction requires the Tribunal to consider any impact of the decision on the Applicant’s immediate family members in Australia where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. Paragraph 8.3 (2) of the Ministerial Direction requires the Tribunal to give more weight to the Applicant’s ties to any children he may have who are Australian citizens. Paragraph 8.3 (3) requires the Tribunal to consider the strength, duration and nature of any family or social links generally the Applicant has with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely. Paragraph 8.3 (4) of the Ministerial Direction then sets out factors to be considered in determining the strength, nature and duration of ties that the Applicant has to the Australian community, having regard to:
·How long the Applicant has resided in Australia, noting that considerable weight should be given to an Applicant who has been ordinarily resident in Australia during and since his formative years, regardless of when any offending commenced, or the level of that offending;
·more weight should be given when the Applicant has been contributing positively to the Australian community; and
·less weight should be given when the Applicant began offending soon after arriving in Australia.
Ms VG’s care requirements:
The Applicant’s primary relationship and connection in Australia is that with his spouse,

Ms VG. In regards their relationship, the Respondent Minister notes (SFIC para 67) that

Ms VG and the Applicant married in Port Moresby at a time when the Applicant was only

19 years of age, whereas Ms VG was 47 years of age, and submits that:
·
their relationship is not a spousal relationship, but merely one of friendship

(SFIC para 54);
·they are not engaged in a mutually exclusive relationship (SFIC paras 60-62);
·they are not now cohabitating, were not cohabitating at the time of the Applicant’s offending and subsequent incarceration, and have also not been cohabitating for significant periods of time since the original granting of the Applicant’s partner visa.
The evidence before the Tribunal is that Ms VG suffers poor health, having suffered from chronic myeloid leukaemia (‘CML’) for more than 20 years now. On the basis of the evidence heard before the Tribunal Ms VG’s condition appears to be becoming increasingly drug resistant, such that the Tribunal is now prepared to proceed on the basis that, although

Ms VG’s CML appears to have been kept under reasonable control in the past on the basis of constant adjustments to her therapeutic regime, the options for this also being the case into the future do now appear to be narrowing.
Although the Applicant submits that he is the primary carer for Ms VG in relation to her diagnosis of CML, and this is also now expressed to be the case by Ms VG, the Respondent Minister submits that the evidence available before the Tribunal does not support that conclusion. The available evidence includes:
(a)a medical certificate from a Dr David Sare, dated 4 August 2023;
(b)a letter from haematologist Dr Mustafa Saydoon, dated 2 August 2023; and
(c)a letter from a Dr Renwar Reben, dated 21 September 2021.
The Respondent submits that Dr Sare’s medical certificate stating that Ms VG is ‘in need of a daily carer because of her pre-terminal CML’ ought be regarded with circumspection, by reason that it is based primarily on Ms VG’s self-reporting, which was described as ‘not credible’ and as ‘self-serving’ or ‘opportunistic’ (Respondent’s final submissions, at paragraphs 22-23).
As to the letter from Dr Renwar Reben, the Respondent Minister submits it to be ‘noticeably lacking in particulars and dated two years ago’, such that no weight should attach to this document either (final submissions, paragraph 24).
As to the letter from the haematologist Dr Mustafa Saydoon dated 2 August 2023, the Respondent Minister notes that Dr Saydoon makes no mention of Ms VG requiring a

full-time carer. Rather, the letter states that further treatment options are available for

Ms VG, and that her CML has not yet reached the terminal phase. That letter does mention that Ms VG may benefit from ‘social’ or ‘familiar’ support, yet the Respondent Minister submits that this differs quite significantly from any requirement for a full-time carer (final submissions, paragraph 25).
The Respondent Minister further notes that, throughout the period in which Ms VG has had a diagnosis of CML, she has still managed to travel extensively – including to Papua New Guinea eight times, and to the United States, at least once. The Applicant did not accompany Ms VG on any of these other overseas trips, and nor did anyone else act as her carer during any of these trips, either. Ms VG has also travelled extensively throughout Australia, again without the assistance of a full-time carer. Although Ms VG testified when before the Tribunal as to her having been at a terminal or ‘end stage’ with her CML on several occasions since 2015, the Respondent Minister notes that each time her health condition has been able to be brought back under control, by means of further variations and adjustments to her medications and treatments. The Respondent Minister also notes that, throughout significant portions of her periods of claimed prior past poor health, the Applicant did not provide Ms VG with full-time care and, notwithstanding the absence of full-time care from the Applicant during these multiple prior periods of allegedly

end-stage CML, Ms VG has still been able to engage in consistent medical treatment; to undertake extensive travel, including international travel; and to undertake extensive volunteer and further Church missionary work (final submissions paragraphs 26-32).
Ultimately, the Respondent Minister submits that the available evidence does not indicate that Ms VG is dependent on the Applicant as her full-time carer, and does not support the making of a finding by the Tribunal that the Applicant is a carer for Ms VG, or, in the event that her care requirements do increase in the future that Ms VG would not be able to access such care via the public healthcare system as an Australian citizen: such that this ought not to be given weight as a strong tie to Australia that would weigh significantly in favour of revocation.
The Tribunal accepts the available medical evidence and, in light of the Tribunal’s own understanding of progressive conditions such as CML, now regards that evidence as evidentially sufficient to demonstrate a requirement for carer assistance for Ms VG during her periods of poor health; and as now also foreshadowing the likely need for

Ms VG requiring even greater levels of care in the foreseeable future.
The Tribunal attaches little significance to the fact of Ms VG having continued to travel, even oftentimes unassisted, in the past while having a diagnosis of CML. In this regard the Tribunal does not regard her obvious determination ‘to get on with life’, notwithstanding her diagnosis as providing any basis for discounting the prospect of her requiring greater levels of care in the future, which must be considered as the primary aspect of the question. Nor is the Tribunal attracted by an argument that Ms VG’s care requirements could ‘just as easily be provided for her in the future via the public healthcare system’ to the same qualitative level and extent as might be provided by the Applicant. In short, these submissions, although considered, are ultimately rejected as unpersuasive.
Other ties to the Australian community:
In his request for revocation of a mandatory visa cancellation under s.501(3A), the Applicant stated that, ‘I have an established connection with Australia and Australians whom I support and who support me.’[59]
[59] G11 p.55.
In relation to these other ties to the Australian community, the Respondent Minister contends (final submissions paragraphs 41-43), that the Applicant only arrived in Australia when aged 20, and was not therefore resident in Australia during his formative years, and that his offending commenced only two years after his arrival in Australia. The Respondent Minister further notes that the Applicant has lived in at least nine distinct geographical locations, such that it is now submitted that this indicates that the Applicant has not established any long-lasting or significant ties to any particular community in Australia, such that the Applicant’s limited ties in Australia lie in favour of reasonable weight attaching to non-revocation of the visa cancellation decision.
The Applicant arrived in Australia when aged 20, and is now 30 years of age, meaning that fully one third of the Applicant’s life has been spent in this country. The Applicant has no connection or interaction with his biological father in PNG and has been completely rejected by his stepfather in PNG, who was abusive towards the Applicant as a child. The Applicant has no other family still living in Papua New Guinea such that the Tribunal considers that the Applicant now has far stronger ties in Australia then are any remnant ties to PNG.
Ultimately, the Tribunal concludes that the Applicant has forged ties and connections in the Australian community that are a good deal greater and stronger than as now portrayed by the Respondent Minister. In relation to Ms VG’s chronic CML, and her care requirements, the Tribunal considers her health status as one that waxes and wanes, wherein Ms VG has had the benefit of periods of relatively good health, which have been interspersed with other periods of acute ill-health, during which her care requirements did no doubt increase quite significantly. Such is the course of any progressive condition, like CML. Understanding the prognosis for CML, Ms VG’s care requirements are apt to become greater into the future and the Tribunal considers that the Applicant is now the person who is best placed to provide those care needs for Ms VG as an Australian citizen. Although theirs is an unusual and decidedly ‘non-traditional’ relationship, the available evidence still does support a finding that Ms VG is most likely to turn to the Applicant in the first instance to provide her with carer assistance, and that her options for alternative care provision are quite limited. In the Tribunal’s view, this consideration does weigh significantly in favour of revocation of the visa cancellation decision.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This primary consideration was not the subject of any submissions or any evidence by either the Applicant or the Respondent, such that Primary Consideration 4 now weighs neutrally.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraphs 8.5 (1) and 8.5 (2) of the Ministerial Direction outline the Australian community’s expectations, stipulating that the Australian community expects non-citizens to obey Australian laws while in Australia. This expectation applies regardless of whether the Applicant poses a measurable risk of causing further physical harm to the Australian community and has been held to be an assessment of community values made on behalf of the community, such that it is to be given due regard and weight in favour of
non-revocation (FYBR v Minister for Home Affairs [2019] FCAFC 185).
The Respondent Minister contends (SFIC paragraph 96), that this consideration ought to weigh heavily in favour of non-revocation, noting that the serious conduct of the Applicant arising in consequence of his offending in 2015 and in 2020 such that the Applicant has breached the expectation contained in paragraph 8.5 (1) of the Ministerial Direction, such that the Australian community would expect the government not to allow the Applicant to remain in Australia.
Notwithstanding that the expectations of the Australian community are deemed expectations, the relative weight that is to be attached to Primary Consideration 5 is a matter for the Tribunal, and is to be determined after a consideration of the total circumstances arising in any given case (Morgan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 392 at [12]). The Tribunal considers that in all of the circumstances of this case that moderate weight in favour of non-revocation now attaches, because of the deemed expectations of the Australian community.
OTHER CONSIDERATIONS
It is necessary to look at the ‘Other Considerations’ listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs (a), (b), (c)
and (d).
(a) Legal consequences of the decision
Paragraph 9.1 of the Ministerial Direction provides that where a non-citizen raises
non-refoulement obligations these ‘should be’ considered by the Tribunal. Paragraph 9.1.2 provides that where a non-citizen who is not covered by a protection finding raises
non-refoulement claims, and it is open for that non-citizen to still apply for a protection visa, then it is not ‘necessary’ at the section 501/section 501CA stage for the Tribunal to determine whether non-refoulement obligations are engaged pursuant to the Act. Yet, as framed in the Ministerial Direction, paragraph 9.1.2 does not act as any kind of prohibition on an assessment of questions going to matters of non-refoulment in circumstances – as are the case here – where the option of making a formal protection claim still remains open to the Applicant. In the event that the Applicant were to make an application for protection, then the same Tribunal, (indeed potentially even the same member), would then be called upon to consider that question under s.36(2)(a) and s.36(2)(aa) of the Act, and then in light of no more information than that which is already available to the Tribunal during this deliberation, and then in circumstances where the question arises for determination without the further considerable benefit – as routinely extended under s. 501/s.501CA – of there being a ‘proper contradictor’, a benefit that is never similarly extended to this Tribunal during review of visa requests under Part 2, division 3, subdivision A of the Act.
In this case the Applicant claims that, should he now be compelled to return to PNG, he fears ‘significant harm’ (s.36(2)(aa)/s.36(2A)) at the hands of his stepfather, who is a PNG police officer, on the basis that the Applicant was fathered by another male person in PNG, yet was then ‘passed off’ by the Applicant’s deceased mother to his stepfather as if he were the biological son of his stepfather. The Applicant stated, in effect, that his stepfather is now aware of the truth of the matter, and is aware that he had been cuckolded, such that should the Applicant return to Mount Hagen, or its environs, he would be exposed to a risk of harm stemming from the wrath of his stepfather – or those associated with his stepfather – on the basis that the Applicant represents an embarrassment to the social standing of his stepfather within the PNG highlands community. The Applicant points to the violence and abuse already meted out by his stepfather during his childhood as evidence of the enmity expressed by his stepfather; and now raises the concern that the Applicant would not be safe anywhere else in PNG, particularly by reason of his stepfather’s status as a police officer: thus affording access to better information than might be the case for another, ordinary PNG citizen similarly intent on retribution, that might enable his stepfather to better trace the whereabouts of the Applicant, anywhere in PNG.
In relation to these matters the Applicant states:[60]
… if I were to be sent back it would place my life at risk and would be detrimental for me psychologically and physically. I am not feeling safe and not welcome back to PNG. It’s a place where I had most traumatic and abusive upbringing, I am not welcome to return. I belief my life is in danger I do not have the means or ability to survive or live a normal life in PNG.
[60] SG87, p.538.
He further states:[61]
…it’s going to be the very difficult situation to put myself in. In the context of the cultural setting is very complex…
…because of these unresolved things that have been left unturned, and I – which has not been addressed…
…there is not any proper legal system there. There is no good policing system there. It’s – it’s corrupt, and everything is like more of persons that deal within their own hand instead of law dealing it.
[61] Transcript day 1 p.28.
In the Tribunal’s view the concerns articulated by the Applicant are enough to raise for necessary consideration the question whether the Applicant might be entitled to ‘complimentary’ protection, pursuant to section 36(2)(aa) the Act.
Although it remains open for the Applicant to make an express application for a protection visa – in which circumstances the Applicant would not be removed from Australia and returned to PNG until such time as that application for a protection visa had been considered and determined unfavourably – the Tribunal does now – and for reasons previously elaborated – elect to proceed to consider this non-refoulement issue as part of this deliberation under s.501CA(4).

The Respondent Minister submits that this concern is overstated, and suggests that given the chronic under-resourcing of the Royal Papua New Guinea Constabulary (‘RPNGC’) and the extremely low personnel numbers and endemic ineffectiveness of the RPNGC as documented in the DFAT Country Information Report,[62] it is ‘implausible for the Applicant’s step-father to be able to use his networks and resources as a police officer to pursue the Applicant and subject him to a continued risk of harm should the Applicant relocate to Port Moresby. As such, this consideration ought to be given weight in favour of
[62] DFAT Country Information Report Papua New Guinea – September 2022, p.22-23.
non-revocation, because the Applicant has not established a credible reason that he would be at risk of harm should he return to the Port Moresby region of Papua New Guinea’ (final submissions, paragraphs 64-65).
The Respondent Minister also submits that, the evidence is that as the Applicant has stated that he has no family members or networks in Port Moresby, yet the general highlands community (including any other family members of the Applicant’s stepfather) are still of the understanding that the Applicant and his stepfather are biologically related, that ‘it follows that the Applicant’s step-father does not have any family members or networks in Port Moresby’ (final submissions, paragraphs 66-67).
The Tribunal does not accept these submissions. That raised in paragraphs 66-67 is obviously illogical. As to the arguments advanced in paragraphs 64 and 65, the Tribunal observes that the putative risk to the Applicant is a specific risk, one stemming from the Applicant’s stepfather in his capacity as a private citizen – one who just so happens to also be an officer in the RPNGC – and not a risk emanating from the RPNGC in any institutional sense.
At its core, the Applicant has submitted that his stepfather may seek to locate the whereabouts of the Applicant, even if the Applicant does move to another locality, other than Mount Hagen (‘the envisaged risk’). The exceedingly poor condition and institutional weaknesses of the RPNGC, as noted in the DFAT PNG Country Information Report [paragraphs 5.3-5.6], is now assessed by the Tribunal as actually underscoring the nature of the envisaged risk, now giving rise to the spectre that the Applicant’s stepfather might seek to avail himself of RPNGC information systems, yet for wholly private, malevolent purposes. Circumstances such as those portrayed in the PNG Country Information Report, – circumstances in which the subject policing agency is portrayed as suffering from poor governance and as lacking sufficient capacity to guard against the risks of unlawful activity within its own ranks – are therefore assessed by the Tribunal as amounting to circumstances that heighten the possibility of the envisaged risk transpiring.
In light of the Tribunal’s appreciation of the perniciousness of the Wantok system, and of the pervasiveness of tribal violence and reprisal action in PNG – a phenomena which is currently being reported in numerous media sources as having increased appreciably recently, even to the extent that there are now calls for peacekeeping interventions by the international community – the Tribunal considers that the concerns raised by the Applicant (similarly expressed by Ms VG,[63] as well as touched upon in the evidence of
[63] Ms VG’s written closing submissions.
Ms RJ), are not overstated issues, and do rise to the level of being a risk of ‘significant harm’. Accordingly, the Tribunal determines that at least moderate weight now attaches in favour of a decision to revoke the visa cancellation because of this other consideration.
(b) Extent of impediments, if removed
Paragraph 9.2 of the Ministerial Direction provides that the Tribunal must consider the extent of any impediments that the Applicant may face if removed from Australia and returned to their home country in terms of re-establishing themselves and maintaining basic living standards in the context of what is generally available to other citizens of that country, having regard to the Applicant’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available in that country.
In Mejov v the Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 1851, the Tribunal stated that the requirement under paragraph 9.2 is to consider an Applicant’s ability to establish themselves and maintain basic living standards in the context of what is generally available to other citizens of that country, rather than by comparison with Australia. If an Applicant would have the same entitlement to support services available to all citizens that meet the required pre-requisites, the Applicant does not demonstrate an impediment pursuant to the Ministerial Direction, simply by establishing that the conditions they would face in the country of reference are unlikely to be commensurate with those which are available to them in Australia.
The Applicant provided evidence during the final Hearing of this matter that, in the event that he is returned to PNG he would find it very difficult to obtain employment, due to the economic situation in that country. Similarly, Ms VG stated that if the Applicant is returned PNG he would ‘face great hardship and his living circumstances would be extreme’ due to an absence of family support (given that his mother and grandmother are deceased), and due to his not having finished high school (G17, 89).
The Applicant has further stated that he has only been able to remain sober due to the assistance he is received in Australia and, if he is returned to Papua New Guinea, it might ‘trigger’ him, as this is the place in which he suffered childhood trauma that he believes to be the root cause for his alcoholism (G12a, 68). The Applicant also stated that he is not welcome in PNG, and his life would be placed in great danger should he be returned, because of the enmity of his stepfather.
The Respondent Minister submits that only limited weight should now be placed on the Applicant’s stated impediments, because the Applicant left PNG as an adult, and has only lived in Australia for the past ten years. While the Applicant may have limited family support and may be made to feel no longer welcome in his home village, the Applicant would still, at least so it is submitted, be able to relocate to other parts of PNG. The Respondent Minister further submits that the Applicant has completed a number of skills courses whilst in Australia, such that the Applicant would be returning to PNG now far better qualified and more employable that are a significant proportion of the local PNG population, and that the Applicant is at least familiar with (and thus it is suggested would be able to navigate) the Wantok system; and might reasonably be expected to rely upon the established networks and contacts of both Ms RJ and Ms VG, should he relocate to Port Moresby or its broader environs. And, even if the Applicant were to struggle against the corruption and disorganisation which is prevalent in PNG whilst trying to re-establish himself in Port Moresby, ‘the respondent contends that such experience would be the same [as that] for the majority of citizens of that country (per DFAT Report at [2.11 – 2.15]), and thus such an experience would not constitute an impediment for the purposes of direction 99’;[64] such that only limited weight should now be given to this consideration in favour of revocation of the visa cancellation decision.
[64] Respondent’s final submissions, [56].
Ultimately, the Tribunal does not accept the Respondent Minister’s submission and considers that it tends to gloss over – and thus diminish – the implications of Wantok in PNG. As was made clear in the Applicant’s final submissions,[65] the Applicant no longer has any immediate contacts in Port Moresby, as these persons have also already relocated to Australia. In the absence of an effective social welfare or healthcare system in PNG, and because of the capricious nature of the employment market in PNG, the Applicant would become essentially reliant on Wantok in order to re-establish in that country. Even if ‘familiar’ with the operations of Wantok, that familiarity – in and of itself and without an accompanying ‘point of entry’ so as to be able to call upon any presumed benefits of the Wantok system – will be of only chimerical assistance to the Applicant; thus placing the Applicant at a comparative disadvantage when compared against the ‘average’ PNG citizen.
[65] Applicant’s final submissions, ‘Extent of impediments if removed’.
In the Tribunal’s assessment the extent of impediments that will be faced by the Applicant in terms of his re-establishing himself in PNG after a decade in Australia are likely be insuperable, and thus crushing. The Tribunal therefore considers that heavy weight in favour of a decision to revoke the visa cancellation decision attaches, because of this consideration
(c) Impact on victims
There is no evidence before the Tribunal in relation to this Other Consideration, such that it now weighs neutrally.
(d) Impact on Australian business interests
This consideration was not the subject of submissions by either the Applicant or the Respondent such that this ‘other’ consideration now weighs neutrally.
CONCLUSION
The Tribunal is required to weigh all the Considerations, in accordance with the Ministerial Direction:
·Primary Consideration (1), Protection of the Australian community: the Tribunal determines that the Applicant’s prior criminal conduct should be categorised as ‘very serious’, yet that only some weight should now attach to Primary Consideration 1, in favour of non-revocation;
·Primary Consideration (2), Family violence: the Tribunal determines that heavy weight against revocation of the visa cancellation decision must now attach to Primary Consideration 2;
·Primary Consideration (3), Strength nature and duration of ties to Australia: in the Tribunal’s view this consideration weighs significantly in favour of revocation of the visa cancellation decision;
·Primary Consideration (4), Best interests of minor children: weighs neutrally;
·Primary Consideration (5), Expectations of the Australian community: The Tribunal considers that moderate weight in favour of non-revocation now attaches, because of the deemed expectations of the Australian community;
·Other Consideration (a), International non-refoulment obligations: the Tribunal determines that moderate weight now attaches in favour of a decision to revoke the visa cancellation;
·Other Consideration (b), Extent of impediments if removed: The Tribunal considers that heavy weight in favour of a decision to revoke the visa cancellation decision now attaches;
·Other Consideration (c), Impact on victims: weighs neutrally;
·Other Consideration (d), Impact on Australian business interests: this ‘Other’ Consideration now weighs neutrally.
DECISION
In light of the foregoing enunciation of reasons for decision, and pursuant to s.43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the Delegate of the Respondent dated 22 May 2023 to not revoke the cancellation of the Applicant’s visa, now with a fresh decision, that this Tribunal exercises the discretion conferred by s.501CA(4) of the Migration Act 1958 (Cth).

137. I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

..........................[SGD]..........................
Associate

Dated: 31 August 2023

Dates of Hearing:

1, 2 & 9 August 2023

Date of final submission:

Applicant:

14 August 2023

In-Person

Solicitors for the Respondent:

Ms Sarah Black

MinterEllison

ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

1

Section 501G G-Documents
(paged 1-128)

R

-

5 June 2023

2

Amended Supplementary
G-Documents (paged 1-543)

R

-

27 July 2023

3

Respondent’s Statement of Facts, Issues and Contentions

R

17 July 2023

17 July 2023

4

Images of the Applicant’s stepfather and father

A

-

2 August 2023

5

First email from Ms VG dated 3 August 2023

A

3 August 2023

3 August 2023

6

Second email from Ms VG dated 3 August 2023

A

3 August 2023

3 August 2023

6a

Letter from Dr Mustafa Saydoon – Haematologist

A

2 August 2023

3 August 2023

6b

Letter from Dr Renwar Reben – Haematologist

A

21 September 2023

3 August 2023

7

Medical certificate of Dr David Sare – GP

A

4 August 2023

4 August 2023

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
1	Section 501G G-Documents (paged 1-128)	R	-	5 June 2023
2	Amended Supplementary G-Documents (paged 1-543)	R	-	27 July 2023
3	Respondent’s Statement of Facts, Issues and Contentions	R	17 July 2023	17 July 2023
4	Images of the Applicant’s stepfather and father	A	-	2 August 2023
5	First email from Ms VG dated 3 August 2023	A	3 August 2023	3 August 2023
6	Second email from Ms VG dated 3 August 2023	A	3 August 2023	3 August 2023
6a	Letter from Dr Mustafa Saydoon – Haematologist	A	2 August 2023	3 August 2023
6b	Letter from Dr Renwar Reben – Haematologist	A	21 September 2023	3 August 2023
7	Medical certificate of Dr David Sare – GP	A	4 August 2023	4 August 2023