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

[2021] AATA 3873

NSST and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3873 (1 October 2021)

Division:GENERAL DIVISION

File Number:          2021/4788

Re:NSST

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date of Decision:                   1 October 2021

Date of Written Reasons:      15 October 2021

Place:Brisbane

The decision under review is affirmed

........................................................................
Member Rebecca Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Bridging (Class WC Subclass 030) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – consideration of Australia’s international non-refoulement obligations – domestic violence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Minister for Home Affairs v Buadromo [2018] FCAFC 151

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member Rebecca Bellamy

15 October 2021

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 27-year-old citizen of Papua New Guinea (“PNG”). In July 2015 when he was 21 years old, he arrived in Australia on a Student visa.[1]

   [1]     Exhibit G1, Section 501 G documents, G15, page 109.

2. In June 2017, the Applicant’s student visa was cancelled as he was not studying, so he became an unlawful non-citizen. In January 2019, he applied for a Protection visa and was granted a Bridging (Class WC Subclass 030) visa (“Bridging visa”)[2] pending the outcome of that application.

   [2]     Exhibit R2, Respondent’s Tender Bundle, R5, pages 100 to 108

3. The Applicant’s application for a Protection visa was refused by a delegate of the Minister (“the Respondent”) in June 2019. He appealed the decision to this Tribunal’s Migration and Refugee Division (“MRD”).

4. On 21 August 2020, the Respondent mandatorily cancelled the Applicant’s Bridging visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full-time custodial sentence.[3] The Applicant subsequently made written representations to the Respondent requesting revocation of the cancellation (“revocation request”).[4]

   [3]     Exhibit G1, Section 501 G documents, G10, page 46.

   [4]     Exhibit G1, Section 501 G documents, G11, page 57.

5. On 23 March 2021, the Tribunal, in its MRD, affirmed the decision to refuse the Protection visa.[5] The Applicant has not sought judicial review of the Tribunal’s decision.  

   [5]     Exhibit G1, Section 501 G documents, G13.

6. On 6 July 2021, the Respondent decided not to revoke the mandatory cancellation of the Bridging visa.[6] On 18 July 2021, the Applicant lodged an application for review in this Tribunal.[7] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [6]     Exhibit G1, Section 501 G documents, G3.

   [7]     Exhibit G1, Section 501 G documents, G2.

7. The hearing of this application took place on 13 and 14 September 2021 in the Tribunal’s General Division. The Applicant, who did not have legal representation, gave evidence via video conference. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”. With the Tribunal’s permission, the Applicant filed written submissions after the hearing. I have had regard to the submissions, but not the evidence, contained in that document, and I note that that Applicant had ample opportunity to provide evidence in support of his case, and he did so, prior to the hearing and during the hearing. The Respondent did not file written submissions in reply, instead relying on the submissions contained in its Statement of Facts, Issues and Contentions and oral submissions made in the hearing. 

8. On 23 September 2021, more than a week after the conclusion of the hearing, the Applicant’s father emailed a letter to the Tribunal in support of the Applicant’s case. Section 500(6J) of the Act precludes me from having regard to that document because a copy was not given to the Minister at least two business days before the hearing. The filed materials included correspondence from the Applicant’s father dated May 2018 and May 2021 that broadly addressed the same issues as the email sent on 23 September 2021.

   LEGISLATIVE FRAMEWORK

9. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)    that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

10. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[8]

    [8]     Minister for Home Affairs v Buadromo [2018] FCAFC 151.

    Does the Applicant Pass the Character Test?

11. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

12. In July 2020, the Applicant was sentenced to a term of imprisonment of three years to be suspended after serving one year.[9]

    [9]     Exhibit G1, Section 501 G documents, G9, page 38.

13. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

14. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.[10]

    [10]    On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

15. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of Part 2 of the Direction.

16. Those principles may be briefly stated as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

17. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

18. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

19. Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. They are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests

20. I note that Paragraph 7.2 provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7.3 provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND AND OFFENDING

21. The Applicant was born in [redacted] 1994. He lived with his family in Port Moresby. When he was four years old his mother died, and he was sent to live with his paternal grandfather in a village. He visited his father, stepmother, siblings and half-siblings at Christmas each year.[11] The Applicant’s father has a good job, and when the Applicant needed financial help such as for school fees, his father provided it.[12]

    [11]    Transcript page 11 lines 13 to 18.

    [12]    Transcript, page 11, lines 37 to 47.

22. In 2010, 2013, and 2014 the Applicant spent short periods of time in Australia.[13] In July 2015, he came to Australia on a Student visa and has remained here ever since.[14]

    [13]    Ranging from nine days to around five months. See Exhibit G1, Section 501 G documents, G15.

    [14]    Exhibit G1, Section 501 G documents, G15, page 109.

23. On 16 June 2017, the Applicant’s Student visa was cancelled because he was no longer studying.[15] In the hearing the Applicant admitted to having worked while on the Student visa despite knowing that the visa did not permit him to work. He also admitted to having worked after the visa expired.[16] He said he supported himself financially by working before moving in with a woman, “Ms V”.[17]

    [15]    Exhibit G1, Section 501 G documents, G13, page 85, paragraph 18; Transcript page 8 lines 43 to 47 and page 9 lines 1 to 5.

    [16]    Transcript, page 16 lines 23 to 37.

    [17]    Transcript, page 16, lines 23 to 30.

24. According to the Applicant, he was seeing Ms V for a few weeks before he moved in with her. She was receiving welfare whereas he “didn’t have anything” so she supported him. She drank and gambled, they drank together, and “everything went downhill from there”.[18]

    [18]    Transcript, page 9, lines 6 to 17.

25. According to contemporaneous police notes[19], at around 2.30am on 22 July 2018, the Applicant was caught driving without a licence while three times over the legal alcohol limit (0.153 BAC). He told the police he was driving unlicensed because he was dropping a friend home.[20] When police asked him about his consumption of alcohol, he said he had consumed approximately eight Corona beers between 6pm and 12pm earlier that evening.

    [19]    Exhibit R2, Respondent’s Tender Bundle, R1, page 5.

    [20]    Exhibit R2, Respondent’s Tender Bundle, R1, page 5.

26. In the hearing, the Applicant claimed that Ms V had forced him to drive her to the bank. He said she did not drive. He said he initially refused but he did not want to get into a fight with her.[21] There was another occasion in 2019 when the Applicant was intercepted by the police with Ms V in the car after having gone to an ATM, although it does not appear that he was charged with driving under the influence on that occasion. It is possible that the Applicant mixed up these two incidents.  

    [21]    Transcript, page 67.

27. On 23 March 2019 the Applicant physically attacked Ms V. According to police records[22], he had been in a relationship with her for approximately one year. At around 3am the police attended their address and observed an injury to Ms V’s right leg. She was bleeding profusely. She also had an injury to her left arm with small lacerations and her hand appeared to be swollen, seemingly as a result of trying to protect herself.

    [22]    Exhibit R2, Respondent’s Tender Bundle, R1, page 8.

28. Ms V told the police that she and the Applicant had been up most of the night drinking before they got into an argument. The Applicant threw a glass flowerpot at her which struck her in the head causing her to briefly lose consciousness. She curled herself into a ball while he threw beer bottles and an empty port bottle at her, striking her on the arms and hands. One of the bottles smashed causing lacerations to her arm and leg. She tried to flee but the Applicant used his body to block her. They pushed each other until she managed to get past him and run to the police station. She left a smear of blood on the door of the police station. No officers were present, so she contacted the police by phone.

29. The police attended the residence and observed that Ms V was covered in shards of glass and there were pools of blood and a number of smashed bottles across the floor.

30. The police detained the Applicant, took him to the Watchhouse and arrested him. The police records do not contain any indication that the Applicant had visible injuries or claimed to be injured. (The Applicant subsequently pleaded guilty to assaulting Ms V)  

31. In the hearing, the Applicant denied having thrown any bottles at Ms V. He said she threw a bottle at him and that is why there was glass everywhere. He said he was trying to leave but she followed him and that he “hit her back”. He claimed that he had told the police that she was throwing glass bottles at him first, but they did not write down what he told them.[23]

    [23]    Transcript, page 56, lines 5 to 21.

32. When asked what he pleaded guilty to, he said he said he pleaded guilty to hurting Ms V and throwing a cup of port on her. He said he did not read her statement and just pleaded guilty.[24] When asked why there was no record of him being injured, he said the bottles did not hit him.[25] He said that between them, he and Ms V had consumed a carton of beer prior to the incident.[26] The Applicant confirmed that Ms V did not force him to consume the alcohol or even invite him to. Rather, she was drinking, and he joined in.[27]

    [24]    Transcript, page 56, lines 23 to 27; lines 36 to 40.

    [25]    Transcript, page 56, lines 32 to 35.

    [26]    Transcript, page 57, lines 26 to 44.

    [27]   Transcript, page 58, lines 27 to 44.

33. It will become apparent in my discussion of Other Consideration (a) that throughout the hearing the Applicant gave a lot of unreliable evidence. In general I did not find him to be a witness of credit. The police records of the incident on 23 March 2019 appear to be reliable: they are contemporaneous, the observations made by police are consistent with the account given by Ms V and there is nothing to suggest that the police had a vested interest in recording information adverse to the Applicant. Where the police account differs from the Applicant’s, I prefer the police account. I am satisfied that the Applicant did all of the things to Ms V, and she suffered all of the injuries, that are recorded in the police records.     

34. A Police Protection Notice was issued to the Applicant that day prohibiting him from coming within 100 meters of Ms V, or from contacting, locating or attempting to contact or locate her.[28] On 25 March 2019, a Temporary Protection Order (“TPO”) was granted, requiring the Applicant to be of good behaviour towards Ms V and prohibiting him from approaching her or her address (unless in the presence of police). The Applicant was present in court when the order was made.[29]

    [28]    Exhibit R2 Respondent’s Tender Bundle, R1, page 30.

    [29]    Exhibit R2 Respondent’s Tender Bundle, R3, page 51.

35. The Applicant claimed that he then moved to a caravan park 20 minutes’ drive  from Ms V’s residence to get away from her and he did not contact her, but she came to him and told him she was going to get rid of the order. Ms V moved in with him.[30] He allowed her to do that because he was two weeks behind with his rent.[31]

    [30]    Transcript, page 56, line 45 to page 57, line 9.

    [31]    Transcript, page 19, lines 1 to 8; page 64, lines 6 to 28.

36. On 18 May 2019, while on bail and subject to the TPO, the Applicant again assaulted Ms V. According to police records[32] and a Director of Public Prosecutions Statement of Facts[33], the Applicant and Ms V were at an IGA supermarket very late at night shopping together. The Applicant became angry at Ms V and threw a handheld basket containing groceries at her. He then picked up a glass bottle of oyster sauce and struck her on the right side of her head causing a severe laceration to her forehead. The Applicant left before the police arrived. The police viewed the IGA’s security footage which showed the attack. Ms V required four stitches to her forehead. The police took photographs of Ms V’s injuries and those are before the Tribunal.[34] One photo is particularly disturbing as it shows a gash on Ms V’s forehead that is so deep that bone is visible.

    [32]    Exhibit R2 Respondent’s Tender Bundle, R1, page 21.

    [33]    Exhibit R2 Respondent’s Tender Bundle, R1, page 21; R3, pages 51 to 54.

    [34]    Exhibit R3, Colour copies of photographs (x4) from Exhibit R2, pages 55 to 56.

37. In the hearing the Applicant said that he was intoxicated at the time of this incident. He said they were living 20 minutes away from the town, Ms V knew he was intoxicated, and she forced him to drive her to the IGA while drunk. He said she said something very offensive in his language, akin to calling him a slave, and he lost his temper.[35] He took her to be referring to the fact that she provided for him, “money, beer, everything and I’m just like rubbish”.[36] (I note that, according to written evidence provided by the Applicant, Ms V is Papua New Guinean like the Applicant). The Applicant admitted that he had been drinking all day but Ms V had not.[37] In response to the question “So you’d been drinking that day?”, the Applicant said “Yeah, she bought beers for me, yeah”.[38]

    [35]    Transcript, page 20, lines 25; page 59, line 41 to page 60, line 4.

    [36]    Transcript, page 60, lines 36 to 40.

    [37]    Transcript, page 60, lines 6 to 19.

    [38]    Transcript, page 60, line 11.

1. On 4 June 2019, the Applicant was convicted of “assault occasioning bodily harm whilst armed/in company domestic violence offence” arising from his attack on Ms V in March 2019. He was sentenced to probation for 18 months. Further, a Protection Order was granted requiring the Applicant to be of good behaviour towards Ms V and prohibiting him from approaching and/or contacting her. The Applicant was present in court when the order was made.

2. According to a Court Report - Breach of Community Based Order dated in July 2019[39]:

   ·the Applicant failed to report to the parole office within one business day of the probation order being imposed;

   ·all attempts to contact him by phone were unsuccessful;

   ·on 10 June 2019 a direction to report was posted to his listed address requiring him to attend the Ipswich office on 14 June 2019, however he failed to attend; and

   ·a home visit was conducted on 19 June 2019 however it appeared that nobody was home. A direction to report was left in the mailbox requiring him to report on 20 June 2019, however he failed to do so.

   [39]    Exhibit R2, Respondent’s Tender Bundle R2, page 45.

3. In the hearing the Applicant was asked about his non-compliance. He claimed he did not understand what probation was.[40] He said he briefly moved to Western Australia to get away from Ms V but he was told he had to return to Queensland with respect to his traffic offences and to sign his passport.[41] It is not apparent what returning to Queensland had to do with traffic infringements or the Applicant’s passport but I take it that he thought he was required to return to Queensland by a government agency.  

   [40]    Transcript, page 17, lines 29 to 36.

   [41]    Transcript, page 18, lines 25 to 43.

4. According to a statement given by Ms V to the Queensland police[42], on 4 October 2019, she was at a hotel in the poker machine area when she saw the Applicant. It was not an arranged meeting. They had some drinks together and the Protection Order was not mentioned. The Applicant told her that he would drive her home, but they would have to stop at an ATM to get money for his lunch the following day. The Applicant drove her to an ATM, and she withdrew $50 and gave it to him. They drove off with the Applicant driving and were subsequently pulled over by police officers.

   [42]    Exhibit R2, Respondent’s Tender Bundle, R3, pages 62 to 64.

5. At this time, the Applicant was disqualified from driving. When he was questioned by the police about breaching the Protection Order he refused to answer any questions.[43]

   [43]    Exhibit R2, Respondent’s Tender Bundle, R3, page 46.

6. The following day, the Applicant entered into a bail undertaking that contained a condition that he was to have no contact, directly or indirectly with Ms V. (On 18 September 2020, the Applicant was convicted of breaching the Protection Order.[44])

   [44]    Exhibit G1, Section 501 G documents, G8, page 38.

7. In early December 2019, while on bail, on probation and subject to the Protection Order, the Applicant violently attacked Ms V again. According to the police records[45], the Applicant and Ms V were together at a caravan park. They had an argument that escalated into violence and the Applicant punched Ms V multiple times in the face. The Applicant made several threats to kill Ms V and she called 000 and screamed before the Applicant terminated the call. The Applicant then pinned Ms V against the wall and choked her, placing both hands around her neck, obstructing her air supply. Ms V managed to free herself and fled to a neighbouring caravan where she waited for the police to come.

   [45]    Exhibit R2, Respondent’s Tender Bundle, R1, page 15.

8. The police had received multiple calls in relation to this incident. They saw significant injuries to Ms V’s face and neck. An attending paramedic noticed that her lips and tongue were swollen and that she had petechiae in both eyes, which are injuries consistent with strangulation. She was taken to hospital for treatment. The police spoke with several witnesses who said they saw the Applicant punch Ms V.

9. The Applicant told the Tribunal he had consumed between 18 and 20 beers that day.[46]

   [46]    Transcript, page 65, lines 20 to 21.

10. On 24 July 2020, the Applicant was sentenced for the attacks in May and December 2019. In passing sentence, the learned Judge said:

    “On each occasion, you had been drinking. On the May occasion, you assaulted her in the aisle of a supermarket for not having spoken to work colleagues. You threw a shopping basket at her and hit her with a sauce bottle, lacerating her forehead to the bone. I have seen the photographs of it. It is an awful injury which you inflicted upon her. Then, in December, on an occasion when you had both been drinking, an argument turned violent. You punched her in the face twice, seemingly fracturing her cheekbone, and splitting her lip. You then used both hands to choke her. She was temporarily unable to breathe. And, seemingly, you caused some damage to her windpipe in the choking. She called for assistance and a neighbour unsuccessfully tried to intervene. And as you were choking her, you had threatened to kill her. Absolutely despicable behaviour.”[47]

    [47]    Exhibit G1, Section 501 G documents, G9, page 40.

11. The Applicant was sentenced as follows:

    ·     for choking suffocation strangulation domestic relationship-domestic violence offence (in December 2019) three years imprisonment to be suspended after serving one year;

    ·     for assaults occasioning bodily harm whilst armed/in company-domestic violence offence (in May 2019), imprisonment for nine months;

    ·     for assaults occasioning bodily harm-domestic violence offence (in December 2019), six months imprisonment; and

    ·     for contravention of domestic violence order (aggravated offence) (in December 2019), contravention of domestic violence order (in May 2019), and breach of bail condition (in December 2019), not further punished.

12. In the hearing, the Applicant denied having threatened to kill Ms V. However, he did not deny any other allegations.[48] As the Applicant was sentenced on the basis that he did threaten to kill Ms V while choking her and I do not regard the Applicant to be a witness of credit, I am satisfied that he did.

    [48]    Transcript, page 63, lines 1 to 10.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

13. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

14. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

    b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

15. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)…;

    (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)…;

    (g)….

16. The Applicant subjected a female de facto partner to three terrifying attacks. His offending involved punching, kicking, hitting her with a flowerpot, glass bottles and a full shopping basket, and strangling her. He attacked her while she was curled in a ball to protect herself. He tried to stop her from leaving when he was attacking her, and he terminated a Triple 0 call she had made. Ms V sustained serious injuries including a split lip, fractured cheekbone, symptoms of strangulation, profuse bleeding and a cut to her head that was so deep that her skull was visible. She momentarily lost consciousness. This offending is, by any measure, very serious.   

17. The breach of the protection orders and the bail undertaking are serious. The Applicant was aware of the conditions of both, and it is not an excuse that Ms V approached the Applicant and chose to spend time with him: after the first attack, the Applicant knew of the risk that being intoxicated in her company could lead to him attacking her.

18. The drink driving offence is serious in that the Applicant was more than three times over the legal blood alcohol limit, he knew he was drunk, and he drove anyway, thereby endangering himself, Ms V and other road users.

19. A custodial sentence is generally a last resort in the hierarchy of sentencing options available to a court. The first time the Applicant was sentenced for assaulting Ms V, he was given 18 months of probation. I do not have the Transcript of that sentencing episode so it is not apparent to me why such a violent assault was punished with a non-custodial sentence, however the Applicant was a young man without any criminal history at the time which may explain why he was put on probation rather than incarcerated. In the second sentencing episode, the Applicant was given three sentences of imprisonment: three years for the assault involving choking, and nine and six months respectively for two other assaults. A three year gaol term, with one year to serve, is substantial and reflects serious criminal conduct. In imposing that sentence the learned Judge described the offending as “absolutely despicable behaviour”.

20. The Applicant committed nine criminal offences and three traffic offences in a period of just under 18 months. This is frequent offending. There was a discernible trend in increasing seriousness over time with the second assault involving an injury that exposed Ms V’s skull and the third involving choking. Further, the latter offences were committed in breach of probation and court orders, making the circumstances of the offending more serious, and they were met with harsher penalties. The cumulative effect of the Applicant’s repeated offending is that Ms V was injured on three occasions and other road users were potentially put at risk on one occasion.

21. I am not confined to considering only criminal offences. I am obliged to consider “the nature and seriousness of a non-citizen’s criminal offending or other conduct to date” (underlining added). The Applicant admitted to having held gainful employment while his visa did not allow it and when he was an unlawful non-citizen. The Applicant admitted to always having known he did not have the right to work. This is prolonged, dishonest conduct. He also remained in Australia for two years while he had no lawful right to do that. He said he did not know that his visa depended on him studying,[49] however it seems implausible that he did not realise a Student visa required him to study. Further, according to his father, by May 2018, he did know his visa had been cancelled.[50] Yet, the Applicant did not apply for a Protection visa until January 2019.[51]

    [49]     Transcript, page 9, lines 1 to 5.

    [50]     Exhibit R2, Respondent’s Tender Bundle, R8 page 132.

    [51]     Exhibit R2, Respondent’s Tender Bundle, R5 pages 100 to 107.

22. The Applicant also admitted to having driven to the IGA while intoxicated before the second attack on Ms V.

23. The relevant paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

24. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

25. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

26. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending.

27. Should the Applicant engage in further domestic violence offences, the harm to his immediate victims includes physical injury or death as well as emotional and psychological harm.

28. In terms of harm to the broader community, the Australian Government’s Fourth Action Plan - National Plan to Reduce Violence against Women and their Children 2010-2022,[52] reported that in Australia an average of 12 women per day are hospitalised due to domestic violence. Violence against women and their children resulted in an overall economic cost of $26 billion in 2015-16 with the victims bearing approximately 50% of that cost. Accordingly, separate to the terrible physical, psychological, emotional and social harm that results from domestic violence, there is a significant economic cost and a significant burden placed on the health system.

29. The harm from traffic offences such as driving under the influence of alcohol includes an increased risk of traffic accidents which can result in very serious injury or death.  

    Likelihood of engaging in further criminal or other serious conduct

30. It is readily apparent that the Applicant’s violent offending and drink driving was precipitated by intoxication. However, his contravention of migration laws was not connected to alcohol.

31. The Applicant claimed that he had never consumed alcohol or “run into the law” or “been in trouble” before moving in with Ms V.[53] However, he later conceded that he had consumed alcohol “just a little bit” before he met her.[54]

    [53]    Transcript, page 16, lines 17 to 21.

    [54]    Transcript, page 22.

32. In his revocation request he said that before the offending, he was depressed and feeling anxiety because he could not get a proper job. His visa did not permit him to work, but he did anyway because he had to pay rent and food. He started to consume alcohol to drown his pain inside, but it only made things worse: it made him do questionable things like “hurting someone”.[55]

    [55]     Exhibit G1, Section 501 G documents, G11 page 71.

33. In a letter accompanying his revocation request, the Applicant indicated that Ms V had led him to use alcohol to deal with his loneliness and “stick to” her. He expressed sorrow for having hurt her, but he also said she raped him after making him drunk and made him an alcoholic person. He claimed that when she found out her husband was coming to Australia to check on her, she decided to get rid of the Applicant before her husband arrived:

    “The quickest way to get rid of me was to make me heavily drunk, and then create an argument, I beat her up, and then she quickly reports the incident to the Police. The Police comes and takes me away to jail. That way I have a police record of violence on file that would be used against me to fail my visa application and Immigration kick me out of Australia as an illegal person. I believe she did that to protect herself.

    …

    I am a victim of NOT my own doing. I was used by an evil person to get me into trouble to save herself or her own predicament, or possibly her own life.”[56]

    (Emphasis in original)

    [56]    Exhibit G1, Section 50 G documents, G11, pages 79 to 80.

34. When asked how Ms V would have known that getting the Applicant drunk and creating an argument would result in him beating her up, he said that when he was sober he did not yell at her or hit her, and that she always wanted to get him drunk and get him to talk and admit something, and that is how fights broke out every time.[57] When asked if he was saying that when he is drunk, if somebody starts an argument with him, that is how he responds, and if he had a problem with violence, he said no but he and Ms V would normally consume two cartons of beer between them over a weekend, and she got him drunk.[58] Indeed the Applicant consistently blamed Ms V for his drinking. Notably, according to him, before the second attack only the Applicant, not Ms V, had been drinking. 

    [57]    Transcript, page 19, lines 17 to 30.

    [58]    Transcript, page 19, line 32 to page 20, line 9.

35. In his application to the Tribunal, the Applicant said that he was a victim of injustice by law enforcement authorities not listening to his side of the story. He said:

    “If I were the main aggressor, why did the woman keep coming to my residence to give me beer, get me drunk, rape and leave me after repeated Police warnings and restraining orders that we should stay separate? She was NOT my wife though, but just a friend”.

    and

    “The woman had an agenda to get rid of me for her own interest. I did not know that until I found out her motive later after the jail term.

    I am not an aggressor to society, but the opposite.”[59]

    [59]    Exhibit G1, Section 501 G documents, G2, page 9.

36. In the hearing, the Applicant confirmed that he and Ms V had been in an intimate relationship.[60] He did not refer to having been raped by Ms V or claim to have attacked her in self-defence or because of any alleged sexual abuse.

    [60]    Transcript page 18 lines 1 to 5.

37. The Applicant admitted that after the first time he attacked Ms V, he did not attend Alcoholics Anonymous or do anything towards learning to control his behaviour when intoxicated. He said he believed he only needed to get away from Ms V as she was the problem.[61] When asked why he later continued to drink alcohol with Ms V given that on two previous occasions he had violently assaulted her while intoxicated, he replied “She used to buy beer for me.”[62]

    [61]    Transcript, page 20, lines 35 to 46.

    [62]    Transcript, page 64, lines 40 to 44.

1. The Applicant also blamed Ms V for the drink driving offence and he said she made him drive drunk to the IGA before the second episode of violence against her.

2. The Applicant has not completed any rehabilitative courses in gaol or detention but he has spoken with some inmates about drug/alcohol abuse and how to be free of it and stay clean.[63]

   [63]    Exhibit G1, Section 501 G documents, G11, page 71.

3. In his revocation request, the Applicant said “I believe the risk of me offending might happen if I’m still unemployed”[64] however if he could work legally then the risk of re-offending could be prevented.[65] When asked about this, he said he would not re-offend because he would be away from “that lady. Crazy lady”, who, when he met her, “everything just falls – falls apart”.[66] When asked if he would work if he was allowed to stay in the Australian community, he said he would. When it was pointed out that his Bridging visa would not allow that, he said that he had to pay for his rent and food etc.[67] He said will get a lawyer to make an application so he can work legally.[68]

   [64]    Exhibit G1, Section 501 G documents, G11, page 71.

   [65]    Exhibit G1, Section 501 G documents, G11, page 71.

   [66]    Transcript, page 68, lines 27 to 34.

   [67]    Transcript, page 53, lines 26 to 34.

   [68]    Transcript, page 69, lines 15 to 20.

4. In his application to the Tribunal, the Applicant said he needs to defend his case to avoid certain death in his country and not for the desire to live in Australia.[69] However, for reasons given later in this decision, I do not accept that the Applicant has genuine fears for his life so I do not consider that his claimed fear of being deported to PNG would motivate him to avoid re-offending if he were to be returned to the Australian community. 

   [69]    Exhibit G1, Section 501 G documents, G2, page 10.

5. While the Applicant, at times in his evidence, purported to take responsibility for his offending, the stronger theme running through his written and oral evidence was that his offending was largely Ms V’s fault. Indeed, in both his written and oral evidence he described himself as a victim.[70]

   [70]    Exhibit A1, Statement of the Applicant dated 15 August 2021, Transcript, page 69, line 40.

6. The Applicant put forward a character reference from a relative, “Ms D”, dated 24 August 2021.[71] She appears to be his step-aunt.[72] Ms D said she had last seen the Applicant around five years ago. Ms D said she had made enquiries with PNG and Pacific Islanders around Brisbane and discovered that Ms V was an alcoholic who influenced the Applicant to drink alcohol. She speculated that Ms V had an ulterior motive to “get rid of” the Applicant and asserted that she had “executed her hidden plan”. She said that Ms V should apologise to the Applicant for putting him unfairly through “this hell” and said that the Applicant was a victim. She said, of Ms V, “Her body injuries were part of her own plan to work for her, which she succeeded, so [the Applicant] cannot feel sorry to her.” She concluded her letter with the words “I demand that AAT/Immigration Authorities drop the charges against [the Applicant] and grant him his Visa”.

   [71]    Exhibit A2, Statement of Ms D dated 24 August 2021.

   [72]    Transcript page 43.

7. There is some doubt in my mind about whether Ms D actually wrote the letter, given the similarity in formatting and fonts between the letter and a statement made by the Applicant.[73] These similarities were pointed out to the Applicant by the lawyer for the Respondent, and the Applicant denied that he had written the letter.[74] However if Ms D did write this letter, it does not assist the Applicant as it displays a victim-blaming attitude and sense of entitlement. As Ms D does not appear to hold the Applicant responsible for his offending, I am not satisfied that she would act as a protective influence if the Applicant’s visa were to be returned to him. 

   [73]    Exhibit G1, Section 501 G documents, G11 pages 78 to 80.

   [74]    Transcript, page 49.

8. There is another character reference before me, from a friend of the Applicant. “Mr R”.[75] Mr R said he did not think the Applicant had many friends in Australia apart from a few who were seasonal workers, and he remembered the Applicant mentioning a relative who lived in Australia. He described the Applicant in very positive terms. He said when he was with the Applicant, the Applicant had no interest in drinking alcohol, and he believed Ms V made the Applicant drink alcohol regularly to keep bad feelings away from his mind. He also said she appeared to be “so nice”, that she looked after the Applicant’s welfare. He thought she was “a lifesaver to him in difficult times”. He described the prosecution of the Applicant as unfair because both the Applicant and Ms V were drinking, and Ms V broke the conditions of the orders by going to the Applicant and by buying alcohol to get him drunk.

   [75]    Exhibit A3, Statement of Mr R dated 10 August 2021.

9. The Applicant’s father sent an email to the Respondent in May 2021[76] that said (among other things):

   ·the Applicant inherited his grandfather’s wealth and property;

   ·the Applicant is not a criminal or violent person;

   ·he thinks the victim pushed the Applicant to an unacceptable level of behaviour that led him to gaol;

   ·he heard that the victim spent her money buying alcohol for the Applicant to drink regularly; and

   ·the Applicant just made a mistake under alcohol “like everybody else”.

   [76]    Exhibit G1, Section 501 G documents, G11, page 75.

10. There is no indication that there is anyone in the Applicant’s life who considers the Applicant to be solely, or even largely responsible for his offending. Accordingly, I am not satisfied that there is anyone in the Applicant’s familial or social circle who would hold him to account for his future conduct and would therefore serve as a protective factor. 

11. In the Applicant’s revocation request he said that he feared for his safety, it was his first time experiencing gaol, and he did not know he would be staying this long. He said being sent to gaol had been a wake-up call for him and he wanted to go back to the community and be a better person than he was before.[77]

    [77]    Exhibit G1, Section 501 G documents, G1, page 59.

12. If the Applicant gets the visa back, he plans to live with Ms D and find work. For reasons I have given, both facets of his plan are problematic. The Applicant’s plans do not include any counselling or formal rehabilitation.

13. The Applicant indicated that he has no intention of resuming his relationship with Ms V, describing it as toxic.[78] I accept this. He said he would think very carefully about getting into another relationship if he stays in Australia, but he did not think he would. He said he could think about it after two or three years.[79] I am not so convinced of this. The Applicant is a relatively young man who has previously chosen to be in an intimate relationship with a woman. Further, his visa does not allow him to work. Previously the Applicant opted to rely on financial support of a female partner. I consider there to be a real possibility that the Applicant will enter into a relationship in the near future.    

    [78]    Transcript, page 41, lines 32 to 35.

    [79]    Transcript, page 41, lines 36 to 44.

14. A Bridging visa does not permit a person to remain in Australia indefinitely. The Respondent submitted that if the Tribunal were to revoke the mandatory cancellation, and the Applicant were to lodge an application for judicial review of the Tribunal’s decision in relation to his application for a Protection visa, the Bridging visa would come into effect. Otherwise, the Applicant could apply for another Bridging visa, for example while he made arrangements to leave Australia. It is also possible that he could apply for another type of visa. Accordingly, a revocation decision could result in the Applicant spending time in the Australian community for an unknown duration.

15. I consider there to be a real risk that if the Applicant’s visa is returned to him, he will commit further offences of the kind he has committed.

    Conclusion: Primary Consideration 1

16. Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

17. Paragraph 8.2 of the Direction provides:  

    (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (2)This consideration is relevant in circumstances where:

    a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    b)…

    (3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

    a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

    b)the cumulative effect of repeated acts of family violence;

    c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    i.the extent to which the person accepts responsibility for their family violence related conduct;

    ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

    iii.efforts to address factors which contributed to their conduct; and

    d)….

18. The Applicant’s offending against Ms V, an intimate partner with whom he was living prior to, and for some periods during, the offending period comes within the meaning of family violence in the Direction. I have already addressed most of the matters I am required to address under this Primary Consideration in my discussion under Primary Consideration 1, and I will not repeat that discussion here.

19. I would add that the Applicant shows no signs of understanding the impact of his family violence offending on Ms V. Quite the opposite: according to him, she achieved the outcome she wanted, which was to get rid of him by engineering a situation where he would “beat her up”.  

20. I would further add that often victims of violence within intimate, domestic relationships are tethered to their abuser by children they have together or by emotional, psychological or financial factors. In this case Ms V had an attachment to the Applicant that kept leading her back to him. In the context of family violence, the importance of the matters in paragraph 8.2(3)(c) is amplified.     

    Conclusion: Primary Consideration 2

21. Primary Consideration 2 weighs heavily against revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

22. Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), I must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision.

23. The Applicant does not claim that any minor child would be affected by the decision. Accordingly, this primary consideration is neutral.

    PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

24. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

25. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind, relevantly:

    (a)acts of family violence; or

    (b)…;

    (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)…

    (e)…

    (f)….

26. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

27. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

28. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR  v Minister for Home Affairs [2019] FCAFC 185.

    Analysis – Allocation of Weight to this Primary Consideration 4

29. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

    ·the Applicant moved to Australia in July 2015 when he was 21 years old (having visited for short periods previously). He is now 27 years old. Of the time he spent in Australia since July 2015, only three years of that was spent as a lawful non-citizen in the wider community. The rest was spent as an unlawful non-citizen and/or in gaol and immigration detention;

    ·the Applicant commenced offending only three years after moving to Australia, although he knowingly contravened his visa conditions earlier than that;

    ·the Applicant’s offending includes very serious domestic violence offences and a high-range drink-driving offence;

    ·the Applicant offended despite bail conditions, a court order and probation, demonstrating a disregard for the laws regulating the community that he seeks to re-enter;

    ·there is a real risk that the Applicant will re-offend;

    ·the Applicant he has not engaged in any lawful employment in Australia except in gaol as his visa conditions did not allow him to work in the community, and there is no evidence of any voluntary work or other contributions to the Australian community; and

    ·there is no evidence that, if the Applicant is removed to PNG, it will have any significant adverse impact on anyone in Australia.  

    Conclusion: Primary Consideration 4

30. The Applicant breached the trust of the Australian community. The nature of the Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Considering all relevant factors, Primary Consideration 4 weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.  

    OTHER CONSIDERATIONS

31. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

    (a) International non-refoulement obligations

32. The Applicant contends that he would face harm if removed to PNG because he is considered by another tribe to be a sorcerer and he will be the victim of payback for the death of a person from another tribe.

33. On 15 May 2018, the Applicant’s father wrote to the Respondent in relation to the Applicant’s migration status. He said:

    ·     in the Applicant’s village there were a number of sorcery related issues that had led to several tribal wars and many of the Applicant’s relatives had died as a result;

    ·     the Applicant was traumatised by the death of his biological mother, uncle and grandparents;

    ·     his school performance deteriorated as a result of those deaths and he could no longer concentrate and continue his studies;

    ·     due to safety reasons at home, “we” instructed him to “stay back in Australia for a while until situation at home improved”;

    ·     a year earlier the Applicant had been instructed to apply for a Protection visa, however he did not;

    ·     the Applicant had assumed that his Student visa, scheduled to expire in 2019, would be sufficient. He did not properly check the conditions of that visa. It was a genuine mistake on his behalf;

    ·     “we” instructed him to apply for a Protection visa immediately; and

    ·     the Applicant’s father’s children have been threatened, and the Applicant is a target due to “customary beliefs and way of life”.[80]

    [80]    Exhibit R2, Respondent’s Tender Bundle, R8.

34. The Applicant’s father did not mention the Applicant’s grandfather being blamed for a death or being accused of sorcery. Nor did he mention the Applicant being accused of sorcery or explain why his other children had been threatened.    

35. In January 2019, in support of his application for a Protection visa, the Applicant provided a statutory declaration, the content of which was similar to the contents of the letter from his father except it included claims about his grandfather and sorcery. The Applicant said:

    ·     he was only four when his mother died. His father remarried and he stayed with his grandfather;

    ·     an “old man” collapsed and died in his village. His grandfather was blamed for his death. It was believed that the Applicant’s grandfather performed sorcery on “this old man”. After his grandfather died, people from other tribes thought his grandfather had passed the sorcery practices onto him;

    ·     he is afraid to go home as there had been deaths in his family. There were tribal wars going on and he was a target. His mother died of sorcery, and so did his grandparents and uncle;

    ·     during his studies he was traumatised knowing what had happened back home and he could not focus on his studies and had to stop;

    ·     he thought he could continue to stay in Australia until August 2019 without attending school;

    ·     tribal people are like savages when they are together especially when revenge is on their mind;

    ·     witchcraft and sorcery deaths are rife in PNG. Tribes are very vindictive. If tribesmen believe a death was caused by someone from another tribe through sorcery, they will do anything to avenge the death;

    ·     jealousy is also big in PNG;

    ·     his parents would rather he languish in gaol than return to PNG as it is dangerous for him to go back;

    ·     it is only a matter of time before his life would be taken; and

    ·     it is not feasible to hide and keep moving in PNG.[81]

    (emphasis added)

    [81]    Exhibit R2. Respondent’s Tender Bundle, R7, pages 130 to 131.

36. In September 2020, the Applicant included in his revocation request a claim that he feared that he might be killed in PNG and the law would not protect him. He said:

    “I might be just another victim of sorcery killing. Many people have died of these accusations, and the law has become an issue in protecting these vulnerable people”

37. On 23 March 2021, the MRD rejected the Applicant’s protection claims. Specifically the Tribunal did not accept that the Applicant or his grandfather had been accused of sorcery, and noted the lack of country information to support that there was any tribal war involving the Kala tribe (presumably the Applicant’s grandfather’s tribe although it is not clear) concerning the death of an old man.   

1. The written reasons for the decision indicate that the Applicant was asked if he knew how his grandfather died, and he said his grandfather was thrown into a cliff and died of a stroke. When he was referred to a statement from a witness who said his grandfather died of internal injuries, the Applicant said his grandfather was an old man and that having been thrown into a cliff would have had consequences.[82] The reasons also indicate that the Applicant gave evidence that he first became aware of the claimed danger because of a letter from his father dated 15 May 2018 addressed to the Immigration Office. The Applicant had confirmed that he had not been aware of any risk or threat to him prior to that letter.[83]

   [82]    Exhibit G1, Section 501 G documents, G13, page 91.

   [83]    Exhibit G1, Section 501 G documents, G13, page 91.

2. On 28 May 2021 the Applicant’s father sent an email to the Respondent[84] that said:

   ·the Applicant inherited his grandfather’s wealth and property;

   ·a sorcery related incident led to a tribal war that resulted in many deaths when the Applicant was at University; and

   ·the enemy tribes think the sorcerer’s skills were transferred to the Applicant, so he has become a primary target to avenge the many deaths that occurred in the past.

   [84]    Exhibit G1, Section 501 G documents, G11, page 75.

3. In her letter dated in August 2021, Ms D said she had heard that the Applicant left school due to some ongoing customary problems related to tribal wars, deaths and a threat to the Applicant’s life.[85] She did not say who had given her the information. 

   [85]    Exhibit A2, Statement of Ms D dated 24 August 2021.

4. In the hearing the Applicant gave evidence that was inconsistent in many respects with the evidence of his father and the evidence he gave the Tribunal in the MRD hearing.

5. First, he gave evidence that his grandfather died during his first semester, around six months into his course, around the beginning of 2016.[86] He did not return to PNG for his funeral because his grandfather had been accused of having killed “another young fellow” from a neighbouring tribe using sorcery, the Applicant was accused of also being a sorcerer because he had been living with his grandfather, and his father told him it was too risky to return home.[87] This is inconsistent with his previous evidence that he first became aware of this threat to his life from his father’s letter of May 2018. When this inconsistency was put to the Applicant, he said that in early 2016 he had some doubts about going back but he did not think it was serious. In early 2017, he thought the threat had died down and was thinking of going home, but he was told it still was not safe. When put to him that it was almost a year between his Student visa being cancelled and his father writing the letter stating it was not safe, and asked if he waited almost a year before checking, he said yes.[88] I further note that the Applicant had said in his written material that tribe members are very vindictive and would do anything to avenge a death, yet he gave evidence that he thought the threat would die down enough for him to return to PNG.

   [86]    Transcript, page 13, lines 1 to 16.

   [87]    Transcript, page 13, lines 24 to 34.

   [88]    Transcript, pages 31 and 32.

6. Second, the Applicant consistently referred to the person his grandfather was accused of killing as young and a student like him. He said the mentality of the people who wanted to kill him was “If you take our son then will take yours as well”.[89] However, in the statutory declaration he submitted in support of his Protection visa application he had referred to an “old man” numerous times. 

   [89]    Transcript, page 23, lines 28 to 33.

7. Third, in the MRD hearing he had said that his grandfather had died of a stroke and then he said internal injuries. In this hearing the Applicant said “they pushed him off - I think he died of a heart attack, or something”.[90] When asked what it was that his grandfather was pushed off, the Applicant said “over the side, like a cliff, something like that”. When asked if someone took his grandfather to the side of a cliff, he said no-one took him, but they pushed him over. When asked what a man in his 80’s was doing standing on the side of a cliff, the Applicant said it was not a cliff that he had been standing on but that he was pushed and he fell down. When asked “Okay, so he didn’t plummet, you know, 100 meters. He just literally fell over. Is that what you’re saying?” The Applicant said, “So he was - he was at this old age”. After further questioning, the Applicant said he was not told how his grandfather died and what caused his injuries, only that he died of his injuries.[91] The Applicant did not give a convincing explanation of why the people who told him about his grandfather’s death did not tell him exactly how it happened.[92] Nor did he give a convincing explanation of why he gave evidence in the MRD hearing that his grandfather died of a stroke whereas he gave evidence in this hearing that his grandfather had died of a heart attack, merely saying that he was told it was a stroke or heart attack.[93]

   [90]    Transcript, page 27, line 43 to page 28, line 2.

   [91]    Transcript, page 28.

   [92]    Transcript, page 29, lines 1 to 39.

   [93]    Transcript, page 30, lines 1 to 34.

8. The Applicant said he found out about the danger he was in from his father and a cousin who lives in the village.[94]  He said his father found out from “one of my uncles and cousins up there”.[95] He said he did not know why his grandfather was blamed for the death of the person[96] and he did not give a convincing explanation about why the people who told him about this situation had not provided such details.

   [94]    Transcript, page 17, lines 1 to 6.

   [95]    Transcript, page 17, lines 8 to 24.

   [96]    Transcript, page 24, lines 1 to 15.

9. When asked to specify who he thought was after him, the Applicant was unable to do so, only saying that they were members of the tribe of the person who was killed. The Applicant oscillated between referring to tribes (plural) and tribe (singular), and when asked which it was, he said “tribe”. While he was able to name the tribe, he was not able to name the leader of the tribe or any of the members who, he claimed, were after him. He said someone from that tribe conveyed the threat to his father, but he did not know who that person was. When asked how he could know it was a real threat if he did not know who the person was, and if that person was a spokesperson for the tribe, he did not give a responsive answer, saying “Because they - they told - that’s why they - you know, told my people that they going to get me.” When asked “So your people have just believed somebody from the other tribe?”, the Applicant said “Well, their leader said they going to get me”. When asked “So now it’s their leader who said it?”, the Applicant said “Not the leader, but you know, how will I say - they said they going to come, like there’s a payback. They want me.” [97]

   [97]    Transcript, page 71, line 33 to page 73, line 18.

10. When asked why his grandfather’s death was not sufficient by way of payback, the Applicant said because the person who died was a young fellow who was studying, and that he had a future.[98]

    [98]    Transcript, page 23, lines 39 to 46.

11. The Applicant claimed that he would not be safe in Port Moresby, and he implied that his family would not help him.[99] He claimed that, despite the PNG population being eight or nine million, it is a “small place” and that people from the village would find out if he returned to Port Moresby, and they would come and kill him.[100] He admitted that he has not received a direct threat from anybody.[101]

    [99]    Transcript, page 37, lines 1 to 35.

    [100] Transcript, pages 38 to 41.

    [101] Transcript, page 71, lines 3 to 25.

12. I find the Applicant’s and his father’s evidence with respect to sorcery and the Applicant being at risk of harm implausible. His father’s letter in May 2018 did not say the Applicant in particular had been accused of sorcery or that he had been specifically targeted, and his subsequent letter was vague and unconvincing. The sorcery claims emerged in the context of the Applicant’s Protection visa application and the various accounts the Applicant gave are inconsistent with each other in material details.

13. I do not accept that the Applicant has been accused of sorcery or that any threat has been made to his life. I do not accept that he would be targeted for any reason if removed to PNG. I am not satisfied that the Applicant engages Australia’s non-refoulement obligations or that he is at risk of harm or hardship if removed to PNG.  

14. This Other Consideration (a) is neutral.

    (b) Extent of Impediments if Removed

15. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

16. The Applicant is a 27 year old man who is able bodied and does not have any health problems. He lived in PNG until he was 21 years old. I am satisfied that there are no substantial language or cultural barriers. He owns his grandfather’s home, having inherited it when his grandfather died.[102] He will have the same access to social, medical and/or economic support that is available to other citizens of PNG.      

    [102] Transcript, page 14, lines 1 to 9.

17. The Applicant’s father, step-mother, siblings and half-siblings live in Port Moresby[103], except for a brother who is studying in the Philippines[104]. In his revocation request he said he might face rejection from his family[105], although he did not say why. In the hearing he said he could not stay with them because it would put them in danger because of the villagers who were after him, however I have rejected his evidence that he will be targeted so I do not accept this. He also said lack of financial support would be a problem.[106] However, he had given evidence that his father had previously provided financial support, and his father indicated the same[107]. His father also provided letters of support. I am satisfied that his father would assist him, including financially if he needs it, if he returns to PNG. The Applicant is young, speaks reasonable English and has done some tertiary study. I consider he has reasonable prospects of employment.    

    [103] Transcript, page 10, lines 26 to 34.

    [104] Transcript, page 36, lines 3 to 40.

    [105] Exhibit G1, Section 501 G documents, G11, page 74.

    [106] Exhibit G1, Section 501 G documents, G11, page 74.

    [107] Exhibit R2. Respondent’s Tender Bundle, R7, pages 130 to 131.

18. The Applicant said poor security would be a problem for him in PNG.[108] I accept that there is more crime and violence in PNG than in Australia, however I am not satisfied that it, or any other matters raised by the Applicant, would prevent the Applicant from establishing himself and maintaining basic living standards.

    [108] Exhibit G1, Section 501 G documents, G11, page 74.

19. This Other Consideration (b) weighs to a very limited extent in favour of revocation of the mandatory cancellation.

    (c) Impact on victims

20. This Other Consideration (c) requires me to assess the impact of the decision on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the Applicant has been afforded procedural fairness.

21. There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.

    (d)     Links to the Australian Community

22. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

23. The Applicant came to Australia as an adult, at the age of 21, and has lived in Australia for a relatively short time, being six years. He commenced offending three years after moving here and there is no evidence that he has been legally employed except that he worked as a cook in the kitchen in gaol, or that he has done voluntary work or otherwise contributed to the Australian community.

24. The Applicant claimed to have one relative living in Australia, Ms D, who moved to Australia in around 2013 and currently lives in Queensland. They have had very little contact in Australia. The Applicant visited her when he came to Australia on a short trip in 2013 ahead of commencing his university studies in Townsville and she showed him around.[109] He has not seen her since then. There is no evidence that Ms D would suffer hardship of any kind as a result of a non-revocation decision.  

    [109] Transcript page 44 lines 1 to 10.

25. There is no evidence of any other family members living in Australia.

26. There is minimal evidence of social ties to Australian community. Mr R appears to be a friend. He said he thought the Applicant did not have many friends in Australia. The Applicant did not put forward any other social connections in Australia.  

    Impact on Australian business interests

27. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. 

    Conclusion: Other Consideration (d)

28. Overall, I am satisfied that the Applicant’s links to the Australian community weighs to a very limited extent in favour of revocation.

    CONCLUSION

29. In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find that the combination of Primary Considerations 1,2 and 4 outweigh Other Considerations (b) and (d) combined. Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa. I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

30. The decision under review is affirmed.

I certify that the preceding 141 (one hundred and forty one) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

........................................................................

Associate

Dated: 15 October 2021  

Date of hearing:

13 and 14 September 2021

Applicant:

By videoconference

Solicitor for the Respondent

Mr Jake Kyranis

Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G18 paged 1 to 138)	R	-	2 August 2021
A1	Statement of the Applicant (2 pages)	A	15 August 2021	19 August 2021
A2	Statement of Ms D, the Applicant’s Step-aunt (3 pages)	A	24 August 2021	25 August 2021
A3	Statement of Mr R, the Applicant’s friend (3 pages)	A	10 August 2021	5 September 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 15)	R	1 September 2021	1 September 2021
R2	Respondent’s Tender Bundle (R1 to R10, paged 1 to 170)	R	-	1 September 2021
R3	Colour copies of photographs (x4) from Exhibit R2 pages 55 to 56.	R	-	10 September 2021