Peremai and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Peremai and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3181 (4 October 2023)
Division:GENERAL DIVISION
File Number: 2023/5059
Re:Maxon Pandan Peremai
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date of decision: 4 October 2023
Place:Sydney

The reviewable decision of the Respondent made on 11 July 2023 not to revoke the mandatory cancellation of Mr Peremai’s Class AH Subclass 117 Orphan Visa is set aside. In Substitution the decision to cancel Mr Peremai’s visa made on 14 June 2022 is revoked.
..............[Sgd]..........................................................
Mr S Evans, Member
Catchwords
MIGRATION – visa cancelled under subsection 501CA(4) of the Migration Act 1958 (Cth) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there a reason why the visa should not be refused on character grounds - Direction no. 99 considered – reviewable decision set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Suleiman and Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C
REASONS FOR DECISION
4 October 2023

The applicant, Maxon Peremai, seeks review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent or the Minister) made on 11 July 2023 refusing to revoke the mandatory cancellation of his Class AH Subclass 117 Orphan visa (the visa) pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).[1]
[1] G2/6
BACKGROUND
Mr Peremai was born in Papua New Guinea (PNG) and is a citizen of that country.[2] He arrived in Australia on 24 April 2017 age 22.[3] On 14 June 2022 Mr Peremai’s visa was cancelled pursuant to section 501(3A) of the Act because he had a ‘substantial criminal record’. At that time Mr Peremai was serving a sentence of imprisonment on a full-time basis as an 18-month Intensive Corrections Order (ICO) had been revoked on 3 April 2022.
[2] G1/2
[3] G4/75
On 1 July 2022 Mr Peremai made representations in accordance with the invitation given to him under section 501CA(3) requesting revocation of the mandatory cancellation of the visa.[4]
[4] G4/69-86
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of paragraphs 501(6)(a) and 501(7)(c).
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) 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.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99).
Paragraph 5.2 of Direction 99 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(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.
(5) With 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.
(6) 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 8.55(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.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary consideration may outweigh other primary considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[5]
[5] Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594, [23] per Colvin J
The primary considerations in Direction 99 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)family violence committed by the non-citizen;
(3)strength, nature and duration of ties of the non-citizen to Australia;
(4)best interests of minor children in Australia affected by the decision; and
(5)expectations of the Australian community.
The other considerations set out in Direction 99 which must be taken into account where relevant include but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel Mr Peremai’s visa pursuant to subsection 501CA(4) of the Act.
Paragraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
As Mr Peremai was sentenced to a term of imprisonment greater than 12 months in the Local Court of NSW in October 2022,[6] I am satisfied he does not pass the character test by operation of paragraphs 501(6)(a) and 501(7)(c) of the Act.
[6] G4/24
Having found that Mr Peremai does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.
EVIDENCE
Mr Peremai was born and raised in PNG. In a submission provided in August 2023 Mr Peremai stated his mother died of cancer and his father died a few years later when he was age 12. Mr Peremai had claimed his father was killed in tribal fighting,[7] but confirmed at the hearing his death was in fact due to natural causes. Following the passing of his parents Mr Peremai and his siblings were raised by his mother’s sister, Joyce Pandan. After she immigrated to Australia, Mr Peremai was taken into the care of another aunt, Nancy Pandan. Mr Peremai submits his difficult and unsettled childhood contributed to his regular abuse of alcohol.[8]
[7] G4/71
[8] Undated statement of Applicant (Applicant’s Statement)
Mr Peremai believes his offending is a consequence of his alcohol abuse. On occasion he also used methylamphetamine or ice but Mr Peremai believes he was addicted to alcohol. When he did not drink alcohol he would ‘shake’ and suffer other physical withdrawals including headaches. He would require up to 10 drinks before the symptoms subsided.
Upon being taken into custody on 3 April 2022 Mr Peremai experienced complete physical withdrawal from alcohol and has not consumed alcohol since.
Mr Peremai suffers from anxiety and depression for which he has been prescribed Olenzapine and Mirtzapine since April 2021.[9] Mr Peremai also has a history of self-harm and suicidal ideation.
[9] G4/84
A NSW Police custody management record dated April 2022 records him having sustained self-inflicted lacerations after continuously banging his head against a police vehicle and making comments about wanting to kill himself.[10] NSW Corrective Services case note reports record Mr Peremai having previously having attempted suicide by jumping off a high building while at work and running into traffic.[11]
[10] Respondent’s Tender Bundle (RTB)/136
[11] RTB/42
CONSIDERATION
Primary consideration 1 – Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 99 requires decision-makers to have regard 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
Mr Peremai has an extensive record of criminal offending. On 24 July 2018 he was convicted for offences including Contravene prohibition/restriction in AVO (Domestic) and Break & enter house etc destroy etc property-T1. He was fined $1,000 and issued a 2-year section 9 bond.[12]
[12] G4/29
On 24 May 2019 he was convicted of one count of Drive with high range PCA-1^st off and other, less serious, driving related offences. The convictions related to an incident on 22 February 2019 in which Mr Peremai crashed his vehicle into two parked cars, and was found to have consumed alcohol prior to driving.[13] He was sentenced to a two-year Community Corrections Order (CCO) and fined $500.[14]
[13] RTB/213
[14] G4/28
On 6 December 2019 Mr Peremai was fined and sentenced to a 12-month CCO for offences including Contravene prohibition/restriction in AVO (Domestic), Break & Enter house etc property <=$60,000 and Common assault -T2.[15]
[15] G4/27-28
The conviction related to an incident which occurred on 14 September 2019. Mr Peremai was living in a granny flat annexed to the premises where his then partner was living. He had been drinking with a colleague and returned home to find his partner drinking and socialising at the premises with the other inhabitants of the property. He told his partner to go back inside and when she ignored him, Mr Peremai called her a ‘slut’, ‘dog’, ‘$5 whore’. Mr Peremai then went back inside the granny flat and smashed property including chairs, a table and a television. He continued swearing and abusing his partner for about an hour. He then threw cans and bottles of alcohol at his partner, which hit her in the forehead and caused immediate pain. One missed his partner and instead hit another inhabitant of the property on her hip, causing her injury.[16]
[16] G4/59-62
On 6 November 2020 Mr Peremai was sentenced by the Blacktown Local Court to an aggregate sentence of 18 months imprisonment following convictions for Common assault- T2, Common assault (DV)-T2, Break & enter house etc destroy etc property <=$60,000 – T1, contravention of AVO and Destroy or damage property to be served by way of an Intensive Correction Order (ICO).
In sentencing, Magistrate Chisholm observed that the offending involved a dispute during which Mr Peremai was heavily intoxicated and grabbed his then partner by the arms. She fell to the ground and was left with a bruise to her elbow. At the time of the offence Mr Peremai was subject to an AVO which prohibited contact between he and the victim whilst he had been drinking. Magistrate Chisholm stated the offending was aggravated by Mr Peremai being subject to three separate orders of the Court at the time of the offending.[17]
[17] G4/32-33
Mr Peremai subsequently breached the ICO issued on 6 November 2020 which was revoked on 3 April 2022.[18] He was required to serve the remainder of the ICO in custody, which prompted the mandatory cancellation of his visa.
[18] G4/55
On 1 September 2022 Mr Peremai was convicted Dishonestly obtain financial advantage etc by deception-T1 in the Blacktown Local Court.[19] His sentence was later varied in the Parramatta District Court to 11 months imprisonment with a non-parole period of 8 months. The charges followed Mr Peremai falsely claiming to be the owner of a hotel in Lismore in order to claim $6,000 in flood recovery support payment from the NSW government.[20]
[19] G4/24
[20] RTB/181-182
On 13 October 2022 Mr Peremai was sentenced in the Local Court of NSW for Contravene prohibition/restriction in AVO (domestic) and Sexually touch another person without consent-T2. Mr Peremai appealed the severity of the sentence which was varied to 10 months imprisonment and a 2 year CCO.[21]
[21] G4/24
The conviction for Sexually touch another person without consent-T2 related to an incident which occurred on 29 September 2021 during which Mr Peremai - who was intoxicated - approached a Sydney Trains employee, luridly propositioned her and tapped her on the buttock outside her clothing.[22]
[22] G4/50; RTB/193
In considering the nature and seriousness of Mr Peremai’s conduct I am required to have regard to the factors set out in subparagraph 8.1.1(1) of the Direction.
Mr Peremai’s offending includes two counts of Common assault (DV)-T2, one count of Common asssult-T2 and one count of assault occasioning actual bodily harm. A number of Mr Peremai’s offences involved violence against women and family violence.
Direction 99 provides that crimes of a violent nature against women and acts of family violence are necessarily to be considered very serious. Mr Peremai has been convicted of a crime of a sexual nature and has a history of breaching AVOs and other court orders. [23]
[23] G4/55
I note that when sentencing Mr Peremai for the offence of Sexually touch another person without consent-T2 on 22 November 2022 her Honour indicated the offending was ‘at the bottom of the range’[24]:
HER HONOUR: I mean, it’s just when one reads the facts, I mean I just thought it was at the low – I mean, it’s on somebody working on Sydney trains and it’s 7.55, 8 o’clock at night, but he used his right hand which was holding a cigarette and tapped the victim on the right side of her buttocks. The victim felt this contact as her wallet was kept in her back right pocket. She said, “Oi, don’t touch me,” and walked away.[25]
[24] G4/39
[25] G4/39
I accept that in general Mr Peremai’s offending falls towards the lower end of the scale of seriousness and there is no indication that the seriousness of Mr Peremai’s offending has increased over time. However, Mr Peremai’s first conviction related to offending which occurred on 17 February 2018, less than 12 months after his arrival in Australia. His offending continued with increasing frequency until he was removed from the community. Having regard to the Direction, I find that the nature of Mr Peremai’s offending is very serious.
Subparagraph 8.1.2(1) of Direction 99 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, 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 available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
The nature of future harm
Should Mr Peremai commit further similar offences in the future, there is potential to cause physical or psychological harm to the Australian community. Mr Peremai’s driving offences, particularly those committed under the influence of alcohol, it would create a risk of physical injury to members of the Australian community. Significant public resources would be expended through the criminal justice system dealing with further similar conduct.
The likelihood of Mr Peremai engaging in further criminal or other serious conduct
Mr Peremai contends that the risk of his reoffending is significantly reduced by the fact that he remains subject to a supervised CCO until 21 November 2024, his insight into his offending and plans to continue his rehabilitation.[26]
[26] Applicant’s Statement of Facts, Issues and Contentions dated 14 August 2023 (ASFIC), [25] – [26]
Mr Peremai appreciates his offending has been closely tied to his alcohol abuse. He submits that the offending which led to the 1 September 2022 conviction for Dishonestly obtain financial advantage etc by deception-T1 was perpetrated to ‘feed [his] addiction’ when he lost his job on account of COVID-19, but provides no further evidence in support of this claim.

Mr Peremai regrets his offending and not having sought help earlier. He acknowledges that he did not stop to think about his actions and continued to offend.
It is not in dispute that Mr Peremai’s offending behaviour has been closely tied to his consumption of alcohol. Mr Peremai explained that when he drinks a little alcohol it is okay, but when he drinks a lot he falls asleep or experiences ‘blackouts’. During blackouts he is unaware of what he is doing. When he is informed of his behaviour he is often surprised as he has no recollection of his actions or what he has done. When he drinks alcohol he observed that he ‘snaps over small things’ and hurts the people who love him. He gave evidence that he has neither the desire nor intention to drink again.
Mr Peremai concedes having previously failed to fulfill his obligation to the courts. He deeply regrets not completing rehabilitation and community service at the same time, prior to returning to drinking in 2019.
The evidence appears to support Mr Peremai’s claim to have been sober since his imprisonment on 3 April 2022, both in prison and then immigration detention.[27] Mr Peremai submits this is a substantial period of sobriety on which to build. He no longer experiences physical withdrawals from alcohol and does not crave alcohol. While in prison Mr Peremai has participated in self-directed learning regarding addiction and in person group programs relating to domestic and family violence.[28]
[27] RTB/73
[28] G4/105-106
He claims to have been attending meetings of Alcoholics Anonymous regularly while in prison and detention. He has also been receiving regular psychological treatment.[29] Should he be returned to the community, Mr Peremai plans to attend residential rehabilitation at Odyssey House. He has recently applied for residential rehabilitation and commenced counselling through the organisation.
[29] G4/104
Mr Peremai plans to rely on the support of his partner who has committed to ensuring he will not use alcohol again. In her statement Ms Nayden writes she plans to support him ‘any way she can’:
… I will help him with rehabilitation and anything possible to make sure I look after him and make sure he doesn't get into trouble with the law again and I know he will stay out of trouble too as his weakness is alcohol and now he has been drug and alcohol free he has come to realise his wrong doing and he is remorseful …
We can't change the past but we will make sure we have a better future together if given the chance.
I have called a few places for rehabilitation around Sydney area and gave them his name and details so they are waiting for him upon his release one of them is centre for addiction medicine. I will make sure and help him with attending courses for drug and alcohol and domestic violence courses and anger management programs to better his life in whatever way possible as he is the most loving and caring person but he has issues with alcohol and drugs that affects his decision making and anger issues which needs to be addressed. now that I have called a few places already and making appointments to fix his problems . all he has to do now is attend them if he is given the chance to be released into the community. I will do whatever is needed to help him.[30]
[30] Statement of Natalie Nayden dated 18 August 2023
Should Mr Peremai return to the Australian community he will be subject to the existing supervised CCO which remains in place until 21 November 2024.[31] Having regard to his history of disregarding court orders, I am sceptical of Mr Peremai’s submission that the CCO will act as a deterrent and significantly reduce the risk of his reoffending. However, I give some credence to his argument that the CCO combined with a period of residential rehabilitation followed by ongoing treatment and recovery will reduce the risk of his reoffending.
[31] G4/24
Protection of the Australian community - conclusion
In the relatively short period Mr Peremai has resided in Australia, he has obtained a significant criminal record. His offending has been frequent and serious in nature. His criminal history demonstrates a disregard for the Australian law.
However, Mr Peremai appreciates that alcohol is the driver of his offending and has demonstrated considerable insight into his drinking and why he offends when intoxicated. Having been sober since being incarcerated in 2022, he understands he will reoffend should he drink again. I accept he is genuinely remorseful for his offending and the harm he has caused. It is also apparent that Mr Peremai appreciates he squandered opportunities previously provided by the courts to rehabilitate. He has come to realise he was ‘provided a good life’ and he had ‘thrown it down the drain’ because he mistakenly thought he ‘could control alcohol’. He is genuinely distraught at the realisation he stands to lose the opportunity to remain in Australia and I accept the salutary impact of his current circumstances.
Nonetheless, I am mindful Mr Peremai’s extended sobriety, rehabilitation and good intentions have yet to be tested in the community. Maintaining his abstinence will require ongoing work, which Mr Peremai has committed to undertaking, beginning with residential rehabilitation. On the basis of his offending to date, and the risk of his reoffending if he does not remain sober, the protection of the Australian community weighs against revocation and is afforded moderate weight.
Primary consideration 2 - Family violence committed by the non-citizen
The second primary consideration is whether the conduct engaged in by Mr Peremai constituted family violence. Family violence is defined in Section 4 of Direction 99 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Subparagraph 8.2(3) of the Direction sets out a list of factors that the Tribunal must consider in assessing the weight to be given to this consideration. They relevantly include the frequency of the conduct, the cumulative effect of repeated acts of family violence and the rehabilitation achieved since the person’s last known act of family violence.
It is not in dispute that Mr Peremai’s conduct includes acts of family violence perpetrated against different partners or that his family violence offending has persisted despite warnings from the Courts.
Mr Peremai submits he has taken responsibility for his family violence offending. In addition to his rehabilitation to address his broader offending, Mr Peremai has attended three modules of the ‘Remand domestic and family violence program’ during 2022.[32]
[32] G4/106
I find this consideration weighs against revocation of the cancellation decision and is afforded medium weight, primarily on account of the frequency of Mr Peremai’s family violence offending.
Primary consideration 3 – The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on Mr Peremai’s immediate family members in Australia as well as the strength, duration and nature of any family or social links with Australian citizens, permanent residents and people who have a right to remain in Australia indefinitely. Subparagraph 8.3(4) provides that consideration weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years.
Mr Peremai’s two brothers and his aunt Joyce Pandan – who adopted him as a child and arranged his migration to Australia – all reside in Australia.[33] Mr Peremai gave evidence that following his offending he no longer has a relationship with Ms Pandan. Mr Peremai has two uncles who reside in Australia, but he has not provided any indication as to the strength or nature of their relationship.
[33] G4/81
Randy Peremai has provided a statement dated 12 August 2023 in support of his brother in which he details the dangers Mr Peremai may face should he be returned to PNG. He does not contend to have a close relationship with his brother. In giving evidence at the hearing, Randy Peremai confirmed he had not seen Mr Peremai for five years, but maintains he would feel sad should he be returned to PNG.
Mr Peremai’s youngest sibling, Junior Peremai, has provided an undated statement in similar terms to that provided by Randy. Mr Peremai indicated he has not seen his youngest brother for many years and rarely speaks to him.
Mr Peremai’s finance Natasha Nayden resides in Australia and gave evidence at the hearing. The couple have been together for approximately three years. She is unable to accompany Mr Peremai should he be returned to PNG as her adult son requires her support to manage his medical condition. Ms Nayden gave evidence that Mr Peremai is close to all five of her adult children and her two grandchildren aged 8 and 9.
I accept Mr Peremai’s contention that Ms Nayden will suffer emotionally should she be separated from Mr Peremai and she benefits from having his support.[34]
[34] G4/99
When he was in the community, Mr Peremai maintained consistent employment as a scaffolder and as part of a demolition crew, and in doing so made a positive contribution to the Australian community.[35] His previous employer has provided an email indicating he would have a similar fulltime job waiting for him should he return to the community.[36]
[35] G4/83
[36] G4/103
Having particular regard to Mr Peremai’s relationship with Ms Nayden, this primary consideration is afforded medium weight in favour of revoking the cancellation decision.
Primary consideration 4 – Best interests of minor children affected by the decision
Direction 99 requires the Tribunal to make a determination about whether refusal to grant the Applicant’s visa is in the best interests of any minor children in Australia affected by the decision. The Direction at subparagraph 8.4(4) sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known views of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
Mr Peremai does not have any children of his own but submits that the interests of Ms Nayden’s two minor grandchildren would be affected by the decision to cancel his visa. Mr Peremai claims he has a close relationship with the children and provides them with emotional and financial support. There is limited evidence to support Mr Peremai’s claims regarding his relationship with Ms Nayden’s grandchildren or the likely effect separation from Mr Peremai may have on them.
Mr Peremai and Ms Nayden intend to adopt one of Ms Nayden’s grandchildren, though they are yet to determine which of the two children – age 8 and 9 - they intend to adopt. It is apparent that Mr Peremai had not commenced any of the measures which may be required in order to formally adopt a child.
Mr Peremai has been in a relationship with Ms Nayden for three years. As Mr Peremai has been in prison and then immigration detention since April 2022, he has had limited opportunity to spend time with the minor children and his relationship with them has been limited.
Primarily on the basis of any financial support Mr Peremai provided the children and his ability to support Ms Nayden, I afford this consideration limited weight in favour of revocation.
Primary consideration 5 - Expectations of the Australian community
Paragraph 8.5 of Direction 99 requires me to consider the expectations of the Australian community. Subparagraph 8.5(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs[37] (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.5 of Direction 99.
[37] [2019] FCAFC 185, [75]
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa.
Having regard to the provisions of Direction 99 and Mr Peremai’s criminal offending, I find that the community’s expectations weigh in favor of not revoking the cancellation of the visa.
Other consideration A - Legal consequences of the decision
I am required to consider the legal consequences of the decision having regard to Australia’s non-refoulment obligations. Should Mr Peremai’s visa remain cancelled, by operation of sections 189 and 198 of the Act, he will be liable for removal from Australia as soon as reasonably practicable.
Subparagraph 9.1(2) of Direction 99 explains that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulment obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol as well as other international conventions. The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of the obligations that Australia is committed to implementing as a party to these conventions.
Subparagraph 9.1(3) provides that international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
There is no finding that Mr Peremai is owed protection[38] but he has raised claims giving rise to international non-refoulement obligations which I am required to consider.[39] Direction 99, which was issued after the High Court’s decision in Plaintiff M1/2021 v Minister for Home Affairs,[40] provides guidance on how the Tribunal should consider these claims. The Direction at subparagraph 9.1.2.(2) provides the choice whether to defer consideration of non-refoulement issues or to proceed to consider them:
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
[38] G3/18
[39] ASFIC, [42] – [45]
[40] [2022] HCA 17, [30] per Kiefel CJ, Keane, Gordon and Steward JJ
Mr Peremai fears he would be vulnerable to persecution and physical harm should he be returned to PNG. He claims there is a significant risk of harm ‘arising from the past and present tribal conflicts’ in PNG. Mr Peremai claims his uncle’s stepbrother, cousin and multiple distant family members and tribal associates have been killed in conflicts related to land disputes.[41] Mr Peremai also fears retribution by members of his own tribe as he has not met his obligation to send them money while in Australia. He claims that the dangers he faces remain regardless of where he lives in PNG and are compounded by his lack of any family or relatives to support him and the absence of employment and accommodation.[42]
[41] ASFIC, [49]
[42] ASFIC, [50]
In an undated statement Mr Peremai claims that when living in PNG he was ‘picked up’ by corrupt police and beaten until he ‘blacked out’ and his bones were broken. He also claims to have been beaten up and left for dead by ‘enemies’. Based on what he has seen in the media, social media and reports from Nancy Pandan, he understands tribal fighting in PNG is now worse than it was before he immigrated to Australia.
In an undated statement Nancy Pandan writes of the worsening tribal violence and an incident which occurred on 30 April 2023 in which tribal enemies ‘followed us to the city and chopped off my first cousin’s face’. She reports that her tribe cut off one man’s hands in revenge, and the other tribe are seeking revenge for that attack.[43]
[43] G4/102
The Australian Government Department of Foreign Affairs and Trade (DFAT) Country Information Report for Papua New Guinea dated 6 September 2022 states that tensions between different tribal groups is not uncommon in PNG and may be triggered for a variety of reasons.[44] Tribal violence is particularly prevalent in the Highlands region, which includes Mr Peremai’s home village of Enga. The country report states that tribal violence resulted in the deaths of an estimated 18 people in July 2022.[45]
[44] DFAT PNG Report, [2.27]
[45] DFAT PNG Report, [2.28]
The country report acknowledges the tribal violence that exists in PNG but the information provided by Mr Peremai in support of his claims lacks specificity and is unverified. The evidence is in my view insufficient to make a proper assessment of whether non-refoulement obligations are owed to Mr Peremai and the appropriate course is to defer formal assessment to the protection visa process which is specifically designed for the determination of non-refoulement obligations.
If Mr Peremai were to make a claim for protection he would remain in immigration detention until such time as his claim is determined. Ongoing detention may have potentially adverse consequences for Mr Peremai owing to his mental health condition and for this reason this consideration weighs in favour of revocation.
Other consideration B - Extent of Impediments if removed
I am required to consider the extent of any impediments that Mr Peremai may face if removed from Australia in establishing himself and maintaining basic living standards in PNG the context of what is generally available to other citizens of that country.
Mr Peremai spent his entire life in PNG prior to immigrating to Australia in 2017. Though he was originally from the province of Enga, based on his evidence it appears he was most recently residing in Port Moresby where he worked as a security guard.
I do not consider that he would face cultural or language barriers in PNG. He claims that he would not be able to obtain work in scaffolding because of the lack of construction work. While he may experience some difficulty securing the same employment as he had in Australia, his labouring skills would be transferrable should he return to PNG.

Mr Peremai expressed concern that the minimum fortnightly wage in PNG is the equivalent of $80. He contends he would face poverty and could not rely on the support of family who are either deceased or living in Australia. Nancy Pandan remains in PNG but has advanced plans to relocate to Australia.[46] I accept that Mr Peremai would face difficulty in re-establishing himself in the absence of family to support him.
[46] Undated Statement of Applicant
Mr Peremai gave evidence that he and his family members have been victims of tribal conflict in the past. I accept that when re-establishing himself avoiding tribal conflict may impede his resettlement by limiting where he is able to reside and his access to family and community support.
Earlier in these reasons I outlined information relevant to Mr Peremai’s mental health including his ongoing treatment with medications including Olanzapine. Mr Peremai submits he would not have access to adequate mental health support and medications in PNG primarily due to the country’s deficient health system. His inability to afford such support given his lack of financial resources and the absence of family and social assistance further contributes to his fear and concerns. DFAT country information report states that PNG has some of the worst health indicators in the Asia-Pacific. The report states that access to healthcare is extremely challenging for urban poor and rural remote communities.[47]
[47] DFAT PNG Report, [2.17]
Based on the evidence I am satisfied that Mr Peremai will encounter practical, financial and emotional hardship should he return to PNG. He can expect to find it challenging to re-establish himself in the absence of family or other social supports. I consider that these hardships would be exacerbated should Mr Peremai be unable to continue to treat his mental health condition.
For these reasons, the impediments Mr Peremai may face weigh in favour of revocation and are afforded significant weight.
Other consideration C - Impact on victims
Paragraph 9.3 of the Direction requires the Tribunal to consider the impact of a decision not to revoke the mandatory cancellation of Mr Peremai’s visa on the victims of his criminal behaviour and the family members of the victims where information in this regard is available.
Ms Nayden has written a letter in support of Mr Peremai’s revocation request. There is no evidence from any other victims of his criminal offending.
I afford this consideration nominal weight in favour of revocation of the cancellation decision.
CONCLUSION
In balancing the considerations, the protection of the Australian community weighs in favour of not revoking the mandatory cancellation of Mr Peremai’s visa. The nature of his offending has been serious and frequent offending has proven resistant to non-custodial intervention by the criminal justice system.
The weight afforded to the protection of the Australian community is reduced on account of Mr Peremai’s offending generally being at the lower end of the scale in terms of seriousness. Furthermore, Mr Peremai’s offending is almost entirely associated with his consumption of alcohol. Mr Peremai recognises this, has not taken a drink for over 18 months and his resolve to maintain his sobriety is accepted as genuine. Should he remain sober, I am satisfied the risk to the Australian community is low.
The expectations of the Australian community weigh against revocation and this primary consideration is afforded more weight in recognition of the offending beginning soon after Mr Peremai’s arrival in Australia. The primary consideration regarding family violence weighs against revocation, but is afforded less weight owing to his insight into his conduct and the efforts he has made to address his offending.
I accept Ms Nayden’s evidence regarding the impact Mr Peremai’s removal to PNG would have on her and her family. Her desire to assist Mr Peremai in his sobriety is an indicator of her commitment to him. I acknowledge the limited interaction he appears to have with his relatives including his brothers and Aunt, but note his brothers were nonetheless motivated enough to support his application to the Tribunal. Mr Peremai has a job offer waiting should he return to the community and has made a contribution through paid employment prior to his imprisonment. For these reasons the strength nature and duration of Mr Peremai’s ties to the community weigh in favour of revocation.
Mr Peremai has no minor children of his own but maintains he has a strong relationship with Ms Nayden’s minor grandchildren. Given the limited evidence to support this contention, I afford the best interests of minor children affected by the decision very limited weight in favour of revocation. The legal consequences of the decision and the interests of victims are each given little weight in favour of revocation.
Mr Peremai can expect to face significant impediments should he be removed to PNG. He will be required to establish himself in the absence of family support. Given the difficulty accessing health care in PNG, it is likely he will face significant difficulty accessing treatment for his mental health condition. His mental health condition is of sufficient seriousness that this consideration is afforded significant weight in favour of revoking the mandatory cancellation decision.
Having weighed the considerations, on balance I am satisfied that there is another reason why the mandatory cancellation of Mr Peremai’s visa should be revoked.
DECISION
The reviewable decision of the Respondent made on 11 July 2023 not to revoke the mandatory cancellation of Mr Peremai’s Class AH Subclass 117 Orphan Visa is set aside. In substitution the decision to cancel Mr Peremai’s visa made on 14 June 2022 is revoked.

I certify that the preceding 102 (one-hundred-and-two) paragraphs are a true copy of the reasons for the decision herein of

...............................[Sgd].........................................
Associate
Dated: 4 October 2023

Date(s) of hearing: 20 and 21 September 2023

Date final submissions received: 25 September 2023

Solicitors for the Applicant: Mr F Nikjoo, Nikjoo Lawyers

Solicitors for the Respondent: Mr T Goodwin, Australian Government Solicitors

[2023] AATA 3181

4 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	20 and 21 September 2023
Date final submissions received:	25 September 2023
Solicitors for the Applicant:	Mr F Nikjoo, Nikjoo Lawyers
Solicitors for the Respondent:	Mr T Goodwin, Australian Government Solicitors