QGDC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 4804

QGDC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4804 (30 November 2020)
Division:GENERAL DIVISION
File Number: 2020/5705
Re:QGDC
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:30 November 2020
Place:Melbourne

The Tribunal affirms the decision under review.
...........[sgd].............................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of Vanuatu – Class BS Subclass 801 Partner Visa – failure to pass good character test – assault – indecent assault - whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Community Protection (Offender Reporting) Act 2005 (Tas)
Family Violence Act 2004 (Tas)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
BCF16 v Minister for Immigration and Border Protection [2019] FCA 19
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
FYBR v Minister for Home Affairs [2020] HCATrans 056
FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration and Citizenship v Obele [2010] FCA 1445; (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567; 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 304 ALR 535
PQSM v Minister for Home Affairs [2019] FCA 1540
Re Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81
Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39; 126 ALD 185
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 162 ALD 13
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117
ZGWQ v Minister for Home Affairs [2019] FCA 1096
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
30 November 2020
INTRODUCTION

The Applicant is a 32-year old citizen of Vanuatu.[1] He seeks review of the Respondent’s decision not to revoke the mandatorily cancellation of his Class BS Subclass 801 Partner Visa (visa).
[1] Exhibit R1, 56; 69.
The hearing was held in Melbourne on 24 November 2020 with parties appearing by audio- visual link in accordance with the Tribunal’s COVID-19 Special Measures Practice Direction. The Applicant was self-represented and assisted by an interpreter in the Bislama language. The Minister was represented by Mr Kim of Clayton Utz.
Under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (AATA), the Tribunal can make orders for non-publication or non-disclosure of information tending to reveal the identity of a party to a proceeding. It is appropriate to do so in this matter because the interests of the Applicant’s ex-partner and three children merit protection. That follows from his conviction on multiple counts of indecent assault against his ex-partner and the issuing of Family Violence Orders (FVO’s) to protect the victim and their three children.[2] The Applicant will therefore be referred to as QGDC.
[2] Ibid, 36-38.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND FACTS
The Applicant met his ex-partner in 2008 while she was holidaying in Vanuatu. She returned to Vanuatu in 2010 and they began a romantic relationship, living there together until 2014. The Applicant travelled to Australia with his ex-partner for the birth of two of their children in 2011 and 2013.[3] His most recent arrival in Australia was on 19 June 2015.[4]
[3] Ibid, 29-30.
[4] Ibid.
Approximately two years after relocating to Australia, the relationship ended. The Applicant moved out and informal arrangements were agreed for visitation with the children. During May and June 2018, the Applicant committed several indecent assaults against his ex-partner, some in the children’s presence. He was arrested and later convicted, in the Supreme Court of Tasmania, of Assault and four counts of Indecent Assault, for which he received a sentence of two years imprisonment, with a non-parole period of one year.[5] The Applicant does not dispute his criminal history or the sentencing remarks.
[5] Ibid, 27-28; 33-34.
On 5 December 2018 the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act),[6] at which time he was serving a full-time sentence of imprisonment.[7] He was transferred to immigration detention in March 2020, where he has since remained.[8]
[6] Ibid, 39-43.
[7] Ibid, 45.
[8] Ibid, 31.
The Applicant made representations to have the cancellation decision revoked[9] but on 17 September 2020 a delegate of the respondent declined to do so (the non-revocation decision).[10] There is no dispute that the Applicant was notified of the non-revocation decision on 17 September 2020 via email to his then legal representative.
[9] Ibid, 46-85.
[10] Ibid, 9-10.
On 18 September 2020 the Applicant asked the Tribunal to review the non-revocation decision, in which he stated:[11]
Further and better reasons to be provided, however some concerns are as follows:
- too much weight was placed on the comments on passing sentence, particularly aspects of the COPS that were addressed in more recent documents. For example, the delegate indicated they placed "great weight" on His Honour's views about [QGDC’s] risk of re-offending, but they do not appear to have placed much or any weight on the more recent reports regarding [QGDC’s] risk of re-offending as assessed by case workers and other qualified professionals who worked with [QGDC] during his incarceration.
- the delegate did not consider that [QGDC] having access to his children is something that would only occur in the context of agreement with the mother or through family court proceedings, and that either of these processes would primarily consider the best interests of the children.
- in considering the nature and seriousness of the conduct, the delegate did not appear to give [QGDC’s] lack of prior convictions any weight at all.
[QGDC] believes that the decision was wrong and that the delegate should have decided to revoke the cancellation.
[11] Ibid, 3-8.
Consistent with s 500(6L) of the Act, the Tribunal must discharge its review function within 84 days of the Applicant being notified of non-revocation, which is on or before 10 December 2020.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the AATA and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA of the Act.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined at s 501(6) of the Act, with s 501(6)(a) stating:

(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction). Section 499(2A) mandates that the Tribunal must comply with the Direction.[12]
[12] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9]; PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to…revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered…in making a revocation decision are identified in Part C of this Direction.
The principles referred to in the Preamble of the Direction constitute a framework within which relevant considerations are applied and are reproduced below:
6.3 Principles
(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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1)(b) of the Direction provides that, in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’. The following primary considerations at cl 13(2) of the Direction are to be applied:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Clause 14(1) of the Direction states that other considerations must be taken into account, which include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016] 241 FCR 461 at [57] and [78]:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES THE APPLICANT PASS THE CHARACTER TEST?
By virtue of his convictions in the Supreme Court of Tasmania and the two-year sentence of imprisonment, the Applicant has a substantial criminal record. Because of the combined effect of ss 501(6)(a) and 501(7)(c) of the Act, the Tribunal finds he does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke his visa cancellation.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory cancellation of the Applicant’s visa should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia (the Full Court) in Viane v Minister for Immigration and Border Protection [2018] 162 ALD 13 per Colvin J at [64]:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
The following documents were tendered into evidence:
(a)Documents lodged by the Respondent titled ‘Section 501 G Documents’ numbering 212 pages;[13]
(b)Documents lodged by the Respondent titled ‘Bundle of Summonsed Material’ numbering 138 pages;[14]
(c)Seven-page statement from the Applicant dated 28 October 2020;[15]
(d)Three-page statutory declaration dated 28 October 2020 from the Applicant’s brother;[16]
(e)One-page undated letter with no address, contact details or other identifying features from the Applicant’s cousin;[17]
(f)Documents lodged by the Applicant comprising periodic reports from his detention records between April to November 2020.[18]
[13] Exhibit R1.
[14] Exhibit R2.
[15] Exhibit A1.
[16] Exhibit A2.
[17] Exhibit A3.
[18] Exhibit A4.
Applicant’s evidence
At the commencement of the Applicant’s evidence the Tribunal asked the interpreter to converse with the Applicant in the Bislama language. It was confirmed by both that they clearly understood each other. The Applicant had good English language abilities and answered most questions in English. He sought the interpreter’s assistance on those occasions when he needed to clarify the meaning of a word or question. The Tribunal was satisfied the Applicant fully understood all questions asked.
The Applicant adopted his statement as true and correct. Key aspects of his evidence are summarised as follows:
(a)The Applicant said his mother and father separated when he was 11 years of age, following which his aunt and uncle became his guardians. The uncle who raised him recently passed away, but the Applicant referred to having ‘two mums,’ three siblings and numerous other relatives still residing in Vanuatu. He stated: ‘I have a loving family back home;’
(b)The Applicant recalled working as a tour guide from 2004 in his family’s tourism business in Vanuatu, which his family continue to operate;
(c)The Applicant met his ex-partner while she was visiting Vanuatu in 2008. She returned to Vanuatu in 2010 and they lived there until 2014 before relocating to Australia. The Applicant said his ex-partner was the sole income earner from 2014-2016, while he stayed at home and cared for the children. This changed after their youngest child was born in August 2016, after which his ex-partner was the children’s primary carer. The Applicant said he was able to find work on a farm, which lasted for about 18 months prior to his arrest. This is his only employment in Australia;
(d)The Applicant said he separated from his ex-partner in early 2017 after she discovered his affair with another woman and told him their relationship was over. He moved out of their home and subsequently visited the children on weekends, usually on a Sunday. He claimed to have provided $300 fortnightly to his ex-partner under an informal child support arrangement, which ceased when he was arrested;
(e)The Applicant agreed he was given the Partner Visa, which was subsequently cancelled in this matter, in November 2017. This was approximately nine months after the relationship with his ex-partner / visa sponsor ended;
(f)The Applicant said the Sunday visits with his children were the only contact he had with them from around early 2017 until his arrest in June 2018. He has had no contact or other communication with his ex-partner or children in the two-and-a-half years since. This resulted from an FVO being taken out by his ex-partner in mid-2018, in which she and the children were protected persons. He said the FVO was reviewed in January 2020, extended until mid-2020, and, according to his previous lawyer, had expired;
(g)The Applicant was taken through the circumstances of his offending. He agreed that he overstayed agreed visit times with the children, ignored his ex-partner’s requests to leave, touched her breasts and vagina on multiple occasions when she said ‘no,’ climbed into bed with her with no pants on, and that his sexualised behaviour was witnessed by their children. He agreed that during one assault his then six-year-old daughter tried to drag him off her mother, causing him to become angry with the child. When his ex-partner tried to comfort the child, the Applicant agreed he grabbed his ex-partner from behind using ‘like a choke hold’ and threw her on the bed. He accepted that the children witnessed the indecent assault that followed from the open door. When asked if men in Vanuatu expected their women to be obedient and compliant, the Applicant stated: ‘It’s part of the culture yes.’ When asked if he agreed with the culture, the Applicant responded: ‘Yes;’
(h)When asked if he accepted that his children suffered trauma as a result of his assaults against their mother, the Applicant initially resisted the proposition, stating: ‘It’s hard for me to believe because I haven’t asked them myself.’ After further questions he accepted the children were traumatised by his behaviour. The Applicant also accepted his two eldest children had previously chosen not to participate in contact visits with him because the children had stated: ‘Daddy always growls at me’ or ‘Daddy is mean to me and uses the ‘F’ word.’[19] The Applicant agreed, consistent with a police report in evidence, that there were occasions when he whipped his children with coat hangers;[20]
[19] Exhibit R2, 105.
[20] Ibid, 103
(i)The Applicant was asked about his ex-partner’s description in a police report that he exhibited dominating physical and sexual behaviours towards her and became aggressive when she resisted.[21] When asked if he agreed that he had a prolonged history of sexual violence against his ex-partner, the Applicant responded: ‘I don’t believe so.’ When asked about his ex-partner’s comment: ‘If I try to struggle he will tell me that if I don’t stop he will drag me to the bedroom,’ the Applicant responded: ‘That was a joke.’ The Applicant agreed, however, that his sexual conduct occurred in front of the children and he placed his hands down his ex-partner’s pants on multiple occasions to touch her vagina. When asked about his ex-partner’s claim in a police statement that she was ‘extremely fearful’ of him and ‘scared of his reaction,’ the Applicant responded: ‘She never talked to me about it.’ When asked if he forced his partner to have sex when she did not want to, the Applicant responded: ‘Sometimes when I feel like being intimate…she didn’t want to feel like she was neglecting me;’
(j)The Applicant was asked about a Risk Assessment Screening Tool in evidence, compiled by Police in support of a Family Violence Risk Assessment.[22] In response to references that he had exhibited homicidal and suicidal fantasies or threats,[23] the Applicant stated: ‘I haven’t threatened anyone. I said things out of my emotions which I regret but never intended.’ When asked about the reference in a police risk assessment that his ex-partner believed he had access to a firearm, the Applicant responded: ‘That’s what she thinks because my boss has a firearm, but I don’t have access to it.’ When asked about his ex-partner’s claim that he had told her he could shoot a small rock off her dining table and wanted to get a gun licence so he could ‘shoot people who piss me off,’ the Applicant responded: ‘I said some stuff that was all out of my emotions, but I never intended anything.’ When asked if he had told his ex-partner that he wished her mother ‘wouldn’t dig a grave for herself and that he didn’t like his own kids as they were ratting him out,’[24] the Applicant responded: ‘I did yes – it was out of my emotions;’
(k)The Applicant said his crimes resulted from being overwhelmed by ‘mixed emotions’ after separating from his ex-partner. He claimed not to have dealt with his mental state in an appropriate way, which evoked childhood feelings of abandonment. When asked to elaborate, the Applicant said he was ‘misled’ by his feelings and emotions. He explained that when visiting his ex-partner and the children after the break-up, he felt they were a family again. He claimed that he ‘tried to make things right,’ but was ‘too emotional and not thinking straight.’ He stated: ‘I didn’t realise my actions when I was acting out of character because I was too emotional;’
(l)The Applicant said that having reflected on his conduct while imprisoned, he accepted it was ‘completely inappropriate.’ He stated that he was sorry for his actions and worried about the impact on his children. He wants to rebuild a relationship with them, ‘earn their trust’ again, and resume a parental role. He claimed his children would be ‘severely negatively impacted’ by his repatriation, because they may feel abandoned and lose contact with their cultural heritage. While accepting it may be a difficult process to regain his ex-partner’s trust, the Applicant said he would work hard to do so and undertook to respect her as the ‘kid’s mum.’ He explained: ‘If I’m going to be around our kids, she has to trust me;’
(m)When asked how he would respond if his ex-partner continued to refuse contact with him, the Applicant said he would ‘still try and find a way to be in [his] kid’s life.’ That included seeking legal advice and a family court order if necessary. When asked if he acknowledged the role he wanted in his children’s lives conflicted with his ex-partner’s current wishes, the Applicant responded: ‘At the moment I don’t know what she wants but I want to be in my kid’s life…Whatever decision she makes its going to hurt me;’
(n)When referred to material suggesting he had an alcohol problem,[25] the Applicant agreed, but claimed to have addressed it while imprisoned, stating: ‘I’ve realised that drinking is not helping me with my behaviour.’ When asked what alcohol-related programs he had done, the Applicant said this issue was discussed during his sex offender’s program. When challenged that a sex offender’s course was not specifically related to alcohol abuse, the Applicant responded: ‘No, but we also talk about strategies to avoid heading down the wrong path;’
(o)The Applicant claimed to have ‘learned a lot’ while imprisoned and was now better equipped to deal with future stressors. He referred to completion of a sex offender’s course that taught him how to better control his emotions. He also said that he had seen a counsellor ‘in the last few weeks’; whereas in the past he had not talked about his feelings. The Applicant agreed there had been no formal diagnosis, nor had he provided any expert medical evidence, about the psychological conditions or symptomology he referred to. The Applicant said he still suffered stress, anxiety and depression, most recently brought on by immigration detention and concerns about the current hearing. Participation in activities like ‘gym exercises, art classes, short courses and dancing lessons’ had alleviated his symptoms. He intended to seek further help if released into the community. When asked about a reference to medication in one of the documents he lodged from his detention records, the Applicant said he had taken over-the-counter painkillers to treat a shoulder injury some months ago but took no medication now. He said there were no physical or medical conditions impeding his aspiration to immediately return to work if released;
(p)In terms of the strength, nature and duration of his ties to Australia, The Applicant said his brother currently worked interstate under the Seasonal Worker Program (SWP). He also claimed to have two cousins in Queensland who are Australian citizens, one of whom had provided a statement. The Applicant claimed he could get his farm job back if released but agreed there was no evidence to corroborate this. He was uncertain what he would do about accommodation and thought he might move to Melbourne. When challenged that his plans for release were vague and general, which gave rise to concerns about his risk of reoffending, the Applicant said he had not made any specific plans because of uncertainty about the outcome of this application. He stated: ‘I believe I’d manage myself and find a way to deal with my emotions.’ He claimed that he his brother, who was currently working in Australia under the SWP would support him, but agreed his brother had to return to Vanuatu by mid-2021. He also referred to the two cousins living interstate as potential sources of support. When asked about what appeared to be a limited connection to Australia, the Applicant said he knew his former ‘boss’ at the farm, some workmates and a few other friends. He had not asked them for statements because some of them were mutual friends of his ex-partner;
(q)In terms of his contribution to Australia, the Applicant claimed in his written evidence to have ‘regularly volunteered’ for community events, but for which there is no corroborating evidence before the Tribunal; and
(r)The Applicant agreed he had lived in Vanuatu for most of his life, was currently in good health, and there were no language or cultural barriers to his repatriation. If returned to Vanuatu, the Applicant thought it would affect him psychologically and he would have difficulty finding work. He claimed that any work would be paid at a much lower rate than in Australia, which would make it difficult to financially support his children or fund their visits to see him in Vanuatu. When asked why he believed his ex-partner and children wanted or needed his financial contribution given there had been no contact between them for almost three years, the Applicant did not respond directly to the question. The Applicant agreed the employment and remuneration issues he raised confronted all Ni Van citizens and not him personally.
[21] Ibid, 99-100.
[22] Ibid, 32-40.
[23] Ibid, 35.
[24] Ibid, 101.
[25] Ibid, 99.
Evidence of The Applicant’s brother

The witness was assisted by an interpreter in the Bislama language. He adopted his statement dated 28 October 2020 as true and correct. The witness is currently in Australia under the SWP. He is not an Australian citizen. He left Tasmania in May 2020, had since worked in Queensland, currently worked in New South Wales, and is due to return to Vanuatu by mid-2021, upon the expiration of his visa.
The witness stated in his written evidence that he had assisted the Applicant in the past ‘financially, emotionally and logistically.’ During his oral evidence he said that he would continue assisting the Applicant in future, irrespective of whether he lived in Australia or Vanuatu.
Evidence of the Applicant’s cousin
The witness, who lives interstate, adopted an undated, one-page letter which was lodged with the Tribunal on 29 October 2020, as true and correct. The witness said he is not an Australian citizen but claimed to be a permanent resident. He said the Applicant had another cousin on the Gold Coast, from whom there is no evidence before the Tribunal.
The witness focussed on the importance of the Applicant’s relationship with his children, stating he believed the Applicant would suffer emotional and psychological distress if he was unable to resume a parental role in their lives. He thought the Applicant had learned from his mistakes and deserved another opportunity to remain in Australia. The witness said he had no basis for claiming it was possible for the Applicant to resume a parental role, only that it was desirable for him to do so.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Clause 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the conduct
Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)   Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The 2018 sentencing remarks characterise the Applicant’s offending as ‘serious crimes’ in the complainant’s home, ‘in which she was entitled to feel safe.’[26] He was found to have breached his ex-partner’s trust and, despite opportunities to reflect on his conduct, repeated the objectionable behaviour, which only added to his ex-partner’s distress and trauma.
[26] Exhibit R1, 34.
The Court held that the indecent assaults by the Applicant against his ex-partner ‘not only involved force, but a demeaning and humiliating sexual element,’ which deserved condemnation ‘in the strongest possible terms.’ His Honour noted the children witnessed some assaults and referred to the ‘adverse impact on children who witness family violence,’ which ‘can be profound…long lasting, and may only emerge later in life.’ The Court referred to the complainant’s victim impact statement as reflecting ‘serious and long-lasting psychological impact…which commonly accompanies such crimes: guilt, shame, loss of self-esteem, anxiety, and insecurity, loss of trust, hypervigilance, fear and sleep disturbance.’[27] His Honour noted the victim was referred to a psychologist, and it would ‘likely be a long time’ before she felt safe again.
[27] Ibid, 34.
The Tribunal has considered records in which the Applicant’s ex-partner described his prolonged history of sexual violence and misconduct towards her. This included overstaying agreed visitation times, touching her vagina without permission, and forcing her to engage in sexual intercourse when she did not want to. The victim claimed to have acquiesced to these advances through fear and did not initially report the conduct to police for the same reason.[28] She claimed to be terrified the Applicant would exact revenge if she reported him, which arose from previous indirect threats he had made.[29] This included him telling her that he wanted to learn to operate a firearm to shoot those who frustrated him.[30] Reference is made in the evidence to a Family Violence Risk Assessment Questionnaire completed by police as part of the FVO process. This recorded the victim’s claims that the Applicant had threatened to kill her, had stalked her, his violence against her had escalated, she was terrified of him, he had threatened suicide, and outlined homicidal fantasies or threats.[31] The Tribunal has considered the Applicant’s claims and concessions during his oral evidence about some of this conduct.
[28] Exhibit R2, 99-100.
[29] Ibid, 101.
[30] Ibid, 101; 107; 126.
[31] Ibid, 35.
Family Violence Orders (FVO) were issued by the Court in June 2018 and January 2020, to protect the Applicant’s ex-partner and their three children.[32] A family violence offence was also recorded against the Applicant in accordance with s 13A of the Family Violence Act 2004 (Tas).[33] The Applicant’s name was placed on a register provided for under the Community Protection (Offender Reporting) Act 2005 (Tas), which requires his compliance with reporting obligations for two years after release from prison.[34]
[32] Exhibit R1, 36-38.
[33] Ibid, 27-28; 34.
[34] Exhibit R2, 130.
Tribunal findings: The nature and seriousness of the conduct
The following aspects of cl 13.1.1(1) of the Direction are relevant in this matter:
(a)13.1.1(1)(a): The Applicant committed multiple crimes of sexual and family violence, which are viewed very seriously;
(b)13.1.1(1)(b): The Applicant’s crimes were against his ex-partner in her home and some of the offending occurred in the presence of their children. Such crimes are viewed very seriously, regardless of the sentence imposed. The Tribunal is satisfied after considering the Applicant’s evidence and concessions during the hearing, that he has a history of sexual violence against the victim and family violence against the Applicant and their three children prior to the conduct for which he was convicted;
(c)13.1.1(1)(d): The Applicant received a sentence of two years imprisonment, with a non-parole period of one year. An immediate sentence of imprisonment for a first-time offender reflects the objective seriousness of the Applicant’s criminal conduct;
For the reasons outlined above, the Tribunal finds the Applicant’s offending is very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 13.1.2 of the Direction states in part:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community in the event he reoffends, taking into consideration the nature of any harm and its probability. In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on this task as follows:
That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated.”
Determining what constitutes an unacceptable risk was elaborated upon in Nigro v Secretary to the Department of Justice (2013) 304 ALR 535 at [111]:[35]
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnote omitted)
[35] Cited with approval by Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117 at [42]-[43].
The High Court has held that past actions are legitimate predictors of future behaviour.[36] Katzmann J, in Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, similarly reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk…he might in the future engage in.’
Criminal history and conduct while imprisoned or detained
[36] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579.
The Tribunal acknowledges the Applicant has no prior convictions in Australia. Because of this, the Court instructed he be allowed parole after the minimum permissible period of one year. The Tribunal also acknowledges the Applicant made admissions about his criminal conduct when interviewed by Police and consented to the issuing of FVOs.[37] He subsequently pleaded guilty to all charges at the earliest opportunity. The Tribunal considers the Applicant’s evidence at the present hearing about his past conduct towards his ex-partner was truthful and reflected genuine remorse.
[37] Exhibit R1, 33; 36-38.
There is no evidence that the Applicant has been other than a compliant prisoner / detainee. Detention centre records state he is ‘respectful’ and complies ‘with all officer instructions and is polite to fellow detainees.’ [38]
[38] Exhibit A4, [2 November 2020; 5 October 2020].
Sentencing remarks
The sentencing remarks refer to the Applicant’s heavy drinking and irrational behaviour as a result of separation from his ex-partner.[39] It was not submitted during trial, however, that he suffered any mental incapacity or acted as he did because of alcohol effects. The sentencing remarks stated the last offences committed by the Applicant occurred:
…in a single course of conduct…, again during a visit to see the children at the family home. The defendant pushed the complainant to the floor and was on top of her. Despite her telling him "no", he put his hands down her pants and touched her vagina. The three children were present and witnessed the assault. His 6 year old daughter tried to pull him off and when he became angry at her she ran to her room crying. As the complainant tried to attend to her daughter, the defendant grabbed her, and pushed her towards a different bedroom. She resisted by trying to grab the door frame but he dragged her from behind, and threw her onto the bed. The force he applied included putting his arm around her neck in a choke hold. The pressure the defendant exerted to the complainant's neck enabled him to manoeuvre her into the bedroom and onto the bed, but it is not asserted that he restricted her breathing. When on the bed, despite her verbal and physical protests, he pulled up her top and touched and kissed her breasts. All of this brought the children to the door of the room. He stopped but they heard and saw what had been happening.[40]
[39] Exhibit R1, 34.
[40] Ibid, 33.
Remorse
The Court stated that the Applicant’s initial apologies to the victim: ‘were not indicative of remorse or insight into the seriousness of his crimes because he offended again, but he quickly realised the wrongfulness of his conduct and acted to minimise its impact and make amends.’[41] The Court considered the Applicant’s pleas of guilt reflected genuine shame and remorse. The Tribunal accepts that the Applicant’s remorse at the present hearing was genuine and heartfelt, particularly in acknowledging the adverse impact on his children.
[41] Ibid, 34.
Risk of reoffending
The sentencing judge stated that the Applicant did not pose ‘much of a risk to anyone except the complainant.’ His Honour was not satisfied, however, that the Applicant posed ‘no risk.’
In addition to his current statement and oral evidence, the Tribunal notes that in a Statutory Declaration accompanying his 2019 Personal Circumstances Form (2019 PCF), the Applicant referred to his good conduct while imprisoned, attendance on several offence-specific programs, and aspiration to remain law-abiding. He stated:
The Australian community can be assured there is no risk of me committing further offences or engaging in other serious conduct.[42]
[42] Ibid, 70.
Rehabilitative claims
In support of his rehabilitative claims the Applicant relied on:
(a)A letter from the Tasmanian Prison Service dated 19 December 2018, which stated;
To whom it may concern,
I am writing in relation to [the Applicant who] is currently a participant in the New Direction Sex Offender Treatment Program and has been participating in the program since 9 November 2018. Upon conducting a treatment needs assessments it was determined that [the Applicant] has low intervention needs and will be due to complete the program within approximately six months of his commencement day. Further support the offer to [the Applicant] upon completion of the program, should he require.
To date [the Applicant’s] engagement in the program has been positive, he contributes willingly to discussions and is open to exploring his offending behavior and developing skills that will assist him to avoid further offending. [The Applicant] has verbalised a commitment to his children and an eagerness to “better himself” in order to return to the community and regain a healthy lifestyle. [43]
(b)A letter dated 19 December 2018 from an ‘Interventions Counsellor’ at Tasmania’s Risdon Prison to the Applicant’s then lawyer, which stated the Applicant was in a minimum security setting, had a minimum security classification rating, was engaged in a treatment program to address his offending behaviour, was undertaking literacy and numeracy programs, had engaged in case management and counselling sessions, had self-referred to a parenting program and aggressive behaviour program, and was on a waiting list to complete these;[44] and
(c)A letter dated 18 June 2019 from an ‘Interventions Counsellor’ at Tasmania’s Risdon Prison to the Applicant’s then lawyer, which stated that the Applicant had no disciplinary issues since his incarceration, had completed ‘over 70 hours in a Moderate Intensity Sexual Offender Treatment program’ and was due to graduate from that program by the end of June 2019, had completed the ‘Circles of Security Parent Program,’ was employed in the woodworking shop, continued with education programs, case management and counselling sessions, and had completed a ‘comprehensive New Futures Plan’ that described his ‘risk factors, intervention strategies and goals for the future.’[45]
[43] Ibid, 87.
[44] Ibid, 88.
[45] Ibid, 89.
Protective factors
The Applicant’s evidence is that he remains ‘unsure at this stage’ about where he will live if released.[46] He intends returning to work immediately, and is contemplating either remaining in Tasmania or relocating to Melbourne. No evidence was provided to corroborate any realistic work prospects or accommodation arrangements. In terms of sources of support, the Tribunal has considered the evidence of the Applicant’s brother, who works interstate under the SWP, does not have a permanent right to remain in Australia, and under the terms of his visa must return to Vanuatu prior to June 2021.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[46] Ibid, 58.
The harm that would be caused by a repeat of the Applicant’s offending is potentially significant when regard is had to the damaging implications of sexual and family violence.
The Tribunal was unpersuaded by the Applicant’s references to being ‘overwhelmed with emotions,’ or having a past drinking problem, or that his offending arose from psychological issues. There is no expert corroboration of the latter, and the evidence discloses his objectionable conduct was not short-lived or impulsive but persisted over a two-month period. It is noteworthy that despite his initial apologies to the victim about not being able to ‘help himself,’ he repeated the conduct, which became even more violent. His sexual violence only stopped upon arrest. The Tribunal adopts the Court’s finding that neither alcohol nor psychological disturbance contributed to the Applicant’s offending.
The Tribunal is satisfied that aspects of the Applicant’s behaviour while living with his ex-partner and their children reflects a history of violence that preceded the offences for which he was convicted. The Tribunal is particularly concerned that the Applicant was undeterred from committing multiple acts of sexual violence against his ex-partner in the presence of their children and acted aggressively towards his eldest child when she tried to protect her mother. The Tribunal does not accept the Applicant’s claims that some of the threats he made to his ex-partner were jokes, or emotional responses that he had no intention of acting upon. Those subtleties were clearly lost on his victim, who feared what the Applicant had threatened and what she thought he was capable of.
The Tribunal accepts the Applicant has no prior convictions, made admissions about his conduct at the earliest opportunity, consented to FVO’s, is remorseful, and has been a compliant prisoner. There is no evidence to dispute the Applicant’s unchallenged claim that the most recent FVO expired in June 2020.[47]
[47] Ibid, 86.

The Tribunal has considered the Applicant’s evidence about rehabilitative efforts while imprisoned. It is to his credit that he has engaged positively in a course linked to his sexual offending, has sought to improve his vocational skillset, and was assessed as having low intervention needs. Reference is made in the evidence to other courses he is yet to complete or has been wait-listed for, although the Tribunal notes that decisions should not be delayed in order for rehabilitative courses to be undertaken: cl 13.1.2(1)(b) of the Direction. Any rehabilitative gains the Applicant has made in structured and controlled custodial environments, however, are untested in the community, where he is again likely to confront emotional and financial stressors. Moreover, there is no evidence about specific treatment to address the psychological symptoms he claims to experience, or the past alcohol problems he said clouded his judgement after separating from his partner.
The Tribunal is concerned about a dearth of protective factors if the Applicant is released. His claims about how he would re-establish himself are vague and general at best. The relationship with his ex-partner ended almost four years ago, and it was she who financially provided for him during most of his stay in Australia. The Applicant has no stable accommodation plans if released and did not provide any corroboration for his work intentions. He does not have any contact with his ex-partner or children, or comparable sources of practical and emotional support in Australia. The parental role the Applicant aspires to resume is uncertain at best and relies on either his ex-partner agreeing, or a Court order – neither of which appear likely given current circumstances. His financial situation and visa status remain precarious. Although there is no medical evidence before the Tribunal to corroborate the Applicant’s recent claims about severe depression, stress, anxiety, past suicidal ideation, and developing an ‘eating disorder due to anxiety’ while in custodial settings, the possibility of undiagnosed psychological conditions only adds to the Tribunal’s concerns. He claimed to have only recently sought counselling, for which there is no corroboration. In his oral evidence he did not convey a persuasive plan to deal with any undiagnosed psychological issues if released, beyond a general intention to seek counselling support. When regard is had to the totality of the Applicant’s circumstances, the Tribunal is concerned his circumstances might again cause him to become ‘overwhelmed with emotions,’ to seek out his ex-partner in an effort to see his children, and to reoffend.
The Tribunal has noted the written evidence of the Applicant’s brother, who is currently working interstate on the SWP, and from a cousin who also lives interstate. His brother has offered the Applicant support if he is released, but this appears limited at best given the Applicant’s brother must return to Vanuatu by mid-2021 when his visa expires. The cousin who gave evidence at the hearing lives interstate and did not refer to providing the Applicant with support. Another cousin who purportedly lives on the Gold Coast did not provide a statement or give evidence at the hearing. Neither of the relatives who gave evidence are well placed to offer other than well-meaning, non-expert opinions about the Applicant’s risk of recidivism. Moreover, in considering references from family members, the Tribunal is mindful they often provide the best possible perspectives about an Applicant’s crimes, which other members of Australian society might consider unacceptable. Care must therefore be taken about the weight placed on references from family members.
The sentencing judge stated that the Applicant did not pose ‘much of a risk to anyone except the complainant,’ but was not satisfied that the Applicant posed ‘no risk.’ The Tribunal respectfully agrees, in finding that the risk posed by the Applicant to his ex-partner is not minimal or trivial. Despite a low probability of reoffending, any similar conduct could cause grave physical and psychological consequences.[48] Coupled with the serious nature of the Applicant’s past crimes, this primary consideration weighs moderately against revocation.
[48] Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39, [15], citing Re Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81, [133] (Davies J).
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Clause 13.2 of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This provision applies only if the child is, or would be, under 18 years old at the time when the revocation or non-revocation decision is expected to be made. It is not required that the applicant has a parental relationship with the child in question. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at cl 13.2(4) to be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant’s three children are currently nine years of age or younger. He stated that his children are the priority in his life, and he considers it important they have a relationship with both parents. He claimed to have grown up ‘without a father’[49] and did not want that for his children. He aspires to be a positive role model for his children and, subject to agreement from his ex-partner, would like to write to them, talk to them on the telephone,[50] and resume a parental role in their lives.
[49] Ibid, 76.
[50] Ibid, 72 [39].
The Applicant said he had limited weekend contact with his children following separation from his ex-partner in early 2017 and has had no contact with the children since being arrested and having an FVO imposed in June 2018. Separation from his children has understandably been very difficult for him.[51] In his 2019 PCF, the Applicant said he was told by a friend that his ex-partner and children had moved to an unknown location.[52] He claimed that he does not intend to live near his ex-partner if released,[53] and during the hearing contemplated a relocation to Melbourne.
[51] Ibid, 72 [34]-[35].
[52] Ibid, 61.
[53] Ibid, 74 [61].
In a Statutory Declaration dated 2 January 2019, the Applicant said that his ex-partner was the ‘sole income earner’ for their family between 2014-2016, while he stayed at home to look after the children.[54] During this time, he claimed to have performed the primary parental role, including the children’s daily care needs, school pickups and drop-offs, playing with them and trying to teach the older child his native language. After the youngest child was born, the Applicant said he worked on a farm from late 2016 until his arrest in mid-2018, during which time his ex-partner performed the primary carer role. After they separated in July 2017, he claimed that he still visited the children ‘almost every week (usually on Sundays) as agreed with [ex-partner].[55] He claimed that while working prior to his arrest, he made informal child support payments of $300 per fortnight.
[54] Ibid, 71.
[55] Ibid, 72.
In relation to the violence his children witnessed against his ex-partner, the Applicant stated:
I am…devastated about the impact that my behaviour has had on my children, and the potential future impact that it may have on them… I think about the impact my behaviour has had (and may continue to have) on my children every single night. I am determined to take every opportunity to better myself…and will never again do anything which may negatively impact my children or my relationship with them.
…
If the cancellation of my… visa is not revoked, I believe that my children will be severely negatively impacted.
The Applicant does not believe a meaningful relationship is possible with his children if he is repatriated. This is because he could not afford to pay for them to visit and is concerned that the comparatively lower wages in Vanuatu meant he could not make a financial contribution to their upbringing.
The Tribunal notes material in evidence from the sister of the Applicant’s ex-partner, in which it is claimed the Applicant threatened, abused the children verbally and physically, and left them unattended while his ex-partner was at work.[56] There is also material from the Applicant’s ex-partner and her sister, stating that the two eldest children had chosen not to participate in visits because of the Applicant’s verbal abuse and had expressed an intention not to see their father anymore.[57] The Applicant conceded during his oral evidence that he had verbally and physically abused his children on occasions in the past, and that they were traumatised by observing his indecent assaults against their mother.
[56] Exhibit R2, 103; 105.
[57] Ibid, 101; 105.
Tribunal findings: Best interests of minor children in Australia
The Applicant had a close relationship with his children from their birth until separating from his ex-partner in early-2017. The Tribunal is satisfied that from August 2016, when their youngest child was born, the Applicant’s ex-partner was the primary caregiver and continues that role to the present day.
Following the couple’s separation and until the Applicant’s arrest in mid-2018, his relationship with the children was limited predominantly to Sunday visitation. There have been long periods of absence and meaningful contact since, with no contact between the Applicant and his children for almost two-and-a-half years since his arrest and the imposition of FVOs in June 2018 and January 2020. It is particularly noteworthy that the Applicant’s relationship with his youngest child, who was born in August 2016, has been extremely limited.
The Applicant’s concerns about the potential effects of his behaviour on the children are shared by the Tribunal. The Court referred to potentially profound and long-lasting effects from the children witnessing some of the Applicant’s indecent assaults upon their mother. Any emotional trauma experienced by the minor children has arisen directly from the Applicant’s violent criminal conduct. The Tribunal considers the anger he directed towards his six-year old daughter while she was trying to protect her mother, and the other concessions he made, including hitting his children with a coat hanger, demonstrates the Applicant’s unacceptable past attitude to the safety and emotional wellbeing of his children.
There is no evidence to corroborate the Applicant’s claim that his children would be ‘severely impacted’ by his repatriation and absence from their lives. The Tribunal agrees that positive paternal involvement through caregiving activities and spousal support can have a beneficial impact on a child’s development. The Applicant’s past conduct, however, has served to harm rather than support his children and ex-partner.
The parental role the Applicant seeks to resume is currently not welcomed by his ex-partner who has expressed her fear of him and has moved to an undisclosed location to avoid contact with him. The extent to which the Applicant may be able to play a positive parental role in future remains uncertain at best.[58] It would depend on him either being able to gain his ex-partner’s agreement or some form of judicial order. Both are considered unlikely given current circumstances. It is possible that as the children mature, they may wish to have a closer relationship with the Applicant, which would be more difficult if he was repatriated. Given their age and the specific circumstances of this case, however, that possibility is entirely speculative.
[58] Exhibit R1, 72[[39]-[40].
On balance, the Tribunal finds that revocation of the visa cancellation is not in the best interests of the Applicant’s minor children. The Tribunal finds this primary consideration weighs at least slightly against revocation.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Clause 13.3 of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The meaning of this provision in a previous Direction was considered by the Full Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). Although the Court focussed on the construction and application cl 11.3(1), it is in identical wording to cl 13.3 of the current Direction. Notwithstanding the different pathways in judicial reasoning, the plurality nevertheless held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[59] As Charlesworth J explained at 74:
‘…In my view, the task of the decision-maker is to identify what is the ‘government’s view’ about community expectations in the particular case, to ‘have due regard’ to that view and to ‘generally’ afford that view more weight than other non-primary considerations in accordance with cl 8(4). The phrase ‘may be appropriate’ does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl 11.3) with the decision-maker’s own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to ‘other considerations’ in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl 11.3 all countervailing factors bearing on the ultimate decision would render cl 8(4) of the Direction unworkable.’
[59] FYBR at [66] per Charlesworth J; and [91] per Stewart J.
Stewart J summarised the community’s expectations at [101] and [103] in the following terms:
101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.
…
103. …In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[60]
[60] Ibid at [75]-[76] per Charlesworth J.
The Tribunal notes the High Court refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[61]
[61]FYBR v Minister for Home Affairs and Anor [2020] HCATrans 056.
The Applicant said that the Australian community would consider his sentence of imprisonment was an ‘adequate sanction’ for his crimes, and claimed the sentencing judge had ‘expressly tailored’ the sentence to return him ‘to the Australian community as soon as appropriate.’[62] He said that the ‘Australian community expects that parents will financially contribute to the cost of raising their children,’[63] which he would be unable to do if returned to Vanuatu.
[62] Exhibit R1, 73 [49]-[50].
[63] Ibid, [52].
Tribunal finding: Expectations of the Australian community
The Applicant stated during the hearing that he had already been punished for his crimes, was suffering in immigration detention, and feared that repatriation would end his aspiration to play a prominent parental role in his children’s lives. To the extent that he is suggesting the cancellation of his visa or repatriation may constitute double punishment for his offending, this is rejected. The Tribunal notes the Court’s elaboration on this issue in Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61, 80 at [88] (per Gageler and Gordon JJ):
[88] What s 501(3A) does is to require the cancellation of a visa in certain circumstances…That power is administrative in character. It forms no part of the judicial power of the Commonwealth. In particular, the exercise of that power does not trespass on the exclusively judicial function of determining or punishing criminal guilt.
(footnotes omitted)
Nettle J elaborated further at [92]-[94]:
[92] Nettle J. …As a sovereign nation, Australia has the sole right to decide which non-citizens shall be permitted to enter and remain in this country. Consequently, as was decided in Robtelmes v Brenan and has ever since been regarded as settled law, Parliament has power under s 51(xix) of the Constitution to make laws for the deportation of non-citizens for whatever reason Parliament thinks fit. And, as Gibbs CJ observed in Pochi, it is only to be expected that it should be so; for such a power is essential to national security.
[93] By s 501(3A) of the Migration Act 1958 (Cth), Parliament has conferred on the Minister for Immigration and Border Protection one of a number of powers calculated to give effect to Australia’s sovereign right to determine which non-citizens shall be permitted to remain in this country. Relevantly, the factum of its operation is that the Minister be satisfied that the subject non-citizen does not pass the “character test” because he or she has been sentenced to death, sentenced to life imprisonment or sentenced to a term of imprisonment of 12 months or more, or because he or she has been convicted or found guilty of one or more sexually based offences involving a child, and the subject non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution. Contrary to the plaintiff’s submissions, however, it does not follow that the provision imposes a punishment. Deportation may be burdensome and severe for a non-citizen, and, in the plaintiff’s case, I have no doubt it will be. But s 501(3A), either alone or by reference to ss 189 and 196, does not increase the punishment for the crime or crimes of which the non-citizen has been convicted or found guilty.
[94] Punishment in the relevant sense consists of the measures taken in the name of society to exact just retribution on those who have offended against the laws of society and thus, it is hoped, to facilitate their rehabilitation.83 By contrast, powers of the kind conferred on the Minister by s 501(3A) give effect to Parliament’s right to rid the nation of persons who, in the judgment of the Parliament, have shown by their offending that their continued presence here would be opposed to the safety and welfare of the nation. Powers of such a kind are measures for the protection of society…
(footnotes omitted)

The Tribunal does not accept the Applicant’s claim that the Court’s sentencing considerations encompassed an intention to return him to the Australian community ‘as soon as appropriate.’ To the contrary. His Honour stated: ‘He will serve his sentence knowing that deportation will likely follow his release. I accept that will impose a burden on him, but I do not regard it as a factor of any weight.’[64]
[64] Ibid, 34.
Given the serious nature of the Applicant’s offending and the harm he has caused to his ex-partner and children, the Australian community would have a very low tolerance for his conduct. The deemed community expectation is that a person convicted of serious offences should not hold a visa or be allowed to remain in Australia. The Tribunal finds this primary consideration weighs at least moderately against revocation.
OTHER CONSIDERATIONS
International non-refoulement obligations
In his 2019 PCF the Applicant ticked the ‘No’ box in response to the question: ‘Do you have any concerns or fears about what would happen to you on return to your country of citizenship.’[65] In an accompanying Statutory Declaration he stated: ‘I do not claim I will be at risk of any specific type of harm if I am returned to Vanuatu.’[66] The Applicant referred elsewhere in his evidence to several ‘problems’ he would encounter if returned to Vanuatu, including finding work, earning less in wages than is available in Australia, and being unable to contribute financially to his children.[67]
[65] Ibid, 67
[66] Ibid, 73 [53].
[67] Ibid.
Tribunal findings: International non-refoulement obligations
Australia’s non-refoulement obligations are not enlivened by the Applicant’s claims and this consideration carries neutral weight. The employment and financial issues raised by the Applicant are considered later under Extent of impediments if removed.
Strength, nature and duration of ties
Clause 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)        How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.          less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.         More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)        The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has lived in Australia for approximately six years. He did not refer to any current romantic relationship. Two FVO’s since his arrest in June 2018 have precluded any contact with his ex-partner and children. The Applicant said he has had no contact with his ex-partner or children since his arrest and does not know where they live. The Applicant nevertheless claimed that his closest ties are to his three children who are Australian citizens. He also claimed to be close to his brother who is currently in Australia under the SWP but must return to Vanuatu before June 2021. The Applicant also referred to two cousins in Australia, only one of whom lodged a statement in the present matter, and ‘a few close friends,’ including his former employer and ‘some other people’ where he used to work.[68]
[68] Ibid, 74 [57].
The Applicant said his only work in Australia was on a farm for about 18 months prior to his arrest. In his most recent statement, he referred to himself as a ‘tax paying resident of Australia.’ He was invited at the hearing to lodge his tax file number and any other evidence of tax contributions through payment slips from his former employer or tax return summaries, which he claimed to have and undertook to provide. At the time of publishing these reasons, this information had not been provided by the Applicant.
Tribunal findings: Strength, nature and duration of ties
The Applicant last arrived in Australia on 19 June 2015 when he was 27 years of age and has lived in Australia for approximately six years. Prior to that he was raised, educated and spent his formative years in Vanuatu. His mother, three siblings and numerous other family members still live there.[69]
[69] Ibid, 63.
The Applicant was only at liberty in the Australian community for three years between his last arrival in Australia and arrest in mid-2018. The relationship with his visa sponsor ended two years after his last arrival in Australia and he has been imprisoned or detained since June 2018. Less weight is placed on this consideration by virtue of the Applicant’s criminal conduct occurring within a relatively short time of his arrival in Australia.
The Applicant’s claimed work history is limited to an approximately 18-month period prior to his arrest. There is no evidence from the former ‘boss’ or workmates he refers to. His contribution to the community through employment can be regarded as limited at best. There is no corroborating evidence of any community contribution through other avenues.
The Applicant is estranged from his ex-partner and their children. His claims about future contact and resuming a parental role are aspirational at best. His claims about friends and other contacts in Australia are general and limited. The Tribunal accepts he is close to his brother, and one of two non-citizen cousins who lives in Australia and gave evidence at the hearing.
The Applicant has spent a relatively short time in Australia, much of which has been spent in custodial environments. His contribution to the Australian community is limited, and his ties to the community relatively weak. On balance, this consideration weighs only slightly in favour of revocation.
Impact on Australian business interests
Clause 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that any work undertaken by the Applicant in Australia enlivens consideration of Australian business interests within the meaning of the Direction. The Tribunal places no weight on this consideration.
Impact on victims
Clause 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence from the Applicant’s ex-partner, who is the principal victim of his offending, about the impact of a decision in this matter. The Tribunal places no weight on this consideration.
Extent of impediments if removed
Clause 14.5(1) of the Direction states that:
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 substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant stated in his 2019 PCF that he had no currently diagnosed medical or psychological conditions,[70] and aspired to an immediate return to work if released. There is no corroboration of his oral claims that he had sought the assistance of a counsellor in recent weeks while in immigration detention. Recent detention centre records the Applicant lodged with the Tribunal, which encompass reports to 2 November 2020,[71] state he is ‘in good health’ and is ‘passionate about fitness and wellbeing.’[72] There is reference to a ‘frequent regurgitation’ issue the Applicant has experienced since the age of 16, which purportedly occurs when he is stressed, but has been able to manage since.[73] There is also a reference to him ‘taking his daily medication’[74] approximately four months ago, which the Applicant explained was over-the-counter pain medication for a shoulder injury.
[70] Ibid, 66.
[71] Exhibit A4.
[72] Ibid [2 November 2020]; [22 August 2020].
[73] Ibid [2 November 2020].
[74] Ibid, [23 July 2020]
The Applicant’s submissions about mental health issues appear to arise from stress in custodial environments and the possibility of repatriation and prolonged separation from his children. No specific representations were made by the Applicant that he could not access the public health system in Vanuatu should he need medical support if repatriated.
The Applicant stated that his ‘two mums,’ brother, two sisters and multiple other relatives are citizens of Vanuatu and still live there.[75] They continue to run a tourism business that he used to work at. There are frequent references in detention centre records to the Applicant maintaining contact with his family in Vanuatu.[76]
[75] Exhibit R1, 63.
[76] Exhibit A4.
The Applicant referred to several ‘problems’ he expected to face if returned to Vanuatu, including finding work, earning less in wages than he did in Australia, and not being able to contribute financially to his children.[77] He thought this would result in him experiencing ‘long-term financial difficulty.’[78]
[77] Exhibit R1, 67.
[78] Ibid, 74.
Tribunal findings: Extent of impediments if removed
The Applicant lived, studied and worked in Vanuatu for the first 27 years of his life, and there are no discernible language or cultural barriers. Most of his family, including his mother and siblings still live there. There is no evidence that the Applicant could not enjoy the same sources of practical and emotional support that he enjoyed while living in Vanuatu until 2015. The Tribunal accepts from his brother’s evidence and the Applicant’s claims about closeness with his family in Vanuatu, that he could continue to rely on strong practical and financial support if repatriated, including through work in his family’s tourism business.
The Applicant is currently 32 years of age and is reported to be fit, in good health and keen to return to work. Given that he has worked in Vanuatu in the past, coupled with his work experience in Australia, the Tribunal considers he has reasonable prospects of returning to work. The Tribunal is satisfied the Applicant has no diagnosed medical or psychological conditions. He refers to continuing stress, anxiety and depression, which appear to arise from his current circumstances, particularly fears of repatriation and uncertainty about resumed contact with his children. But it is not for the Tribunal to infer the existence of psychological conditions by reference to an applicant’s submissions alone,[79] and there is no evidence of any currently diagnosed medical or psychological conditions. There is no evidence that should he require medical or other support if removed from Australia, the Applicant would not be entitled to the same support available to other Ni Van citizens.
[79] BCF16 v Minister for Immigration and Border Protection [2019] FCA 19, [45] (Charlesworth J).
The Tribunal accepts that work opportunities, remuneration, government-funded entitlements and other support in Vanuatu may be comparatively lower than in Australia, but the Direction requires consideration of what is generally available to an applicant in their country of citizenship, not a comparative assessment with Australia.[80] Any limitations relating to employment in Vanuatu are not specific to the Applicant, but apply to the broader Ni Van community.
[80] ZGWQ v Minister for Home Affairs [2019] FCA 1096, [11] (Robertson J).
The Tribunal acknowledges the Applicant’s laudable aspiration to contribute financially to his children as a reason to remain in Australia and secure higher paid work. Even on his own evidence, however, his past financial contribution is limited. His ex-partner was the sole income earner for their family after they arrived in Australia. At best he has worked in Australia for about 18-months. There is no corroborating evidence of this claimed work or financial contribution. Even if his evidence about providing $300 in fortnightly payments to his ex-partner through an ‘informal arrangement’ is accepted, these payments were made for a relatively limited time prior to his arrest. There is no evidence his ex-partner is in any way reliant upon or would welcome any future contact or contribution from him. To the contrary. She has cut off contact with the Applicant, relocated with her three children to an unknown location, and has sought protection from the Applicant through FVOs.
On balance, the impediments confronting the Applicant are relatively few and do not constitute compelling obstacles to repatriation. This consideration only weighs slightly in favour of revocation.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the considerations at Part C of the Direction to the specific circumstances of his case. The Tribunal’s consideration of the evidence is such that it is appropriate to give greater weight to the relevant primary considerations than the other considerations: cl 8(4) of the Direction.
The Applicant’s offending is serious, and the harm which would be caused by any repeat is potentially significant when regard is had to the damaging implications of sexual and family violence. The deemed community expectation is that the Applicant should not hold a visa.
The indecent assaults committed by the Applicant in the presence of his children have likely traumatised them. Because of his actions and the two FVO’s since, the Applicant had initially limited (weekend) contact with his children and then no contact at all since June 2018. His ex-partner and children live at an undisclosed location. The parental role he aspires to play is speculative at best and currently rejected by his ex-partner. Given the specific circumstances, revocation is not considered to be in the children’s best interests.
In terms of considerations weighing in the Applicant’s favour, he has made a limited contribution to the community through approximately 18 months of work on a farm and has limited community connections in Australia. His strongest ties are in Vanuatu. Although re-establishing himself in Vanuatu after almost six years in Australia will not be without challenges, these are not considered substantial given the Applicant lived there for the first 27 years of his life and has spent less than six years living in Australia.
Having weighed all the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to mandatorily cancel the Applicant’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ each weigh moderately against revocation. The primary consideration ‘Best interests of minor children’ weighs slightly against revocation. These substantially outweigh the other considerations of ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ which each weigh slightly in favour of revocation.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

................[sgd]........................................................
Associate
Dated: 30 November 2020

Date of hearing: 24 November 2020

Applicant: Self-represented

Advocate for the Respondent: Mr Kyu-Won Kim

Solicitors for the Respondent: Clayton Utz

Date of hearing:	24 November 2020
Applicant:	Self-represented
Advocate for the Respondent:	Mr Kyu-Won Kim
Solicitors for the Respondent:	Clayton Utz