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

Atuaki and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 625 (9 April 2024)
Division:GENERAL DIVISION
File Number(s):2024/0459
Re:Kasimili Kaiulani Atuaki
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member W Frost
Date of decision: 9 April 2024
Place:Canberra

Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Migration Act 1958.
..[SGD]......................................................................
Member W Frost
Catchwords
MIGRATION – Cancellation of Applicant’s Class GD Subclass 403 Temporary Work (International Relations) visa – mandatory cancellation of visa under s501(3A) Migration Act – whether Applicant passes the character test – substantial criminal record – consideration of Ministerial Direction 99 – whether ‘another reason’ why decision should be revoked under s501CA(4) – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975, s 43
Migration Act 1958, ss 189, 197C(1), 198, 499, 499(2A), 500(1)(ba), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G
Migration Amendment (Aggregate Sentences) Act 2023
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs, Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member W Frost
9 April 2024
INTRODUCTION

This proceeding concerns the review of a decision by a delegate of the Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), not to revoke a decision to mandatorily cancel the Class GD Subclass 403 Temporary Work (International Relations) visa (Visa) of the Applicant, Mr Kasimili Kaiulani Atuaki, under subsection 501(3A) of the Migration Act 1958 (Act).[1]
[1] Exhibit 1, pages 10-27.
Mr Atuaki is a 29-year-old Tongan citizen who has resided in Australia since July 2021.[2] In August 2023, Mr Atuaki was convicted of two violent criminal offences which he committed in September 2022.[3] In September 2023, Mr Atuaki’s Visa was mandatorily cancelled because he had been sentenced to a term of imprisonment of 12 months or more.[4] He sought revocation of the cancellation decision, but a delegate of the Minister refused this request.[5] As a result, Mr Atuaki applied to the Administrative Appeals Tribunal (Tribunal) for review of the decision.[6]
[2] Ibid., pages 2, 10, 29, and 74.
[3] Ibid., pages 29-30.
[4] Ibid., pages 77-82.
[5] Ibid., pages 10-27, 50-55 and 70-72.
[6] Ibid., pages 1-9.
The Tribunal has considered all of the documents in the bundle of documents filed in this proceeding, pursuant to section 501G of the Act, together with the parties’ submissions and their respective documents.[7] For the following reasons, the Tribunal has decided to affirm the decision under review not to revoke the decision to cancel Mr Atuaki’s Visa. This means that Mr Atuaki’s application to the Tribunal is unsuccessful and his Visa remains cancelled.
[7] Exhibits 1-4.
BACKGROUND
In July 2021, Mr Atuaki arrived in Australia on the Visa.[8]
[8] Exhibit 1, page 74.
On 25 August 2023, Mr Atuaki was convicted in the District Court of New South Wales of ‘Reckless grievous bodily harm-T1’ and ‘Common assault-T2’, committed on 12 September 2022.[9] He was sentenced to an aggregate term of three years’ imprisonment with a non-parole period of 18 months.[10]
[9] Ibid., pages 29-45.
[10] Ibid.
On 13 September 2023, Mr Atuaki’s Visa was mandatorily cancelled under subsection 501(3A) of the Act, because it was determined that he did not pass the ‘character test’ under the Act and was serving a sentence of imprisonment on a full-time basis in a custodial institution for the aforementioned offending.[11] Mr Atuaki was invited to make representations seeking revocation of that decision.[12]
[11] Ibid., pages 77-82.
[12] Ibid.
In October and November 2023, Mr Atuaki requested revocation of the mandatory cancellation of his Visa.[13]
[13] Ibid., pages 50-73.
On 16 January 2024, a delegate of the Minister decided not to revoke the mandatory cancellation of Mr Atuaki’s Visa.[14] Mr Atuaki received notice of that decision on 17 January 2024.[15]
[14] Ibid., pages 10-27.
[15] Ibid., page 113.
On 26 January 2024, Mr Atuaki applied to the Tribunal for review of the decision not to revoke the mandatory cancellation of his Visa.[16]
LEGISLATION & MINISTERIAL DIRECTION
[16] Ibid., pages 1-9.
The Act
Subsection 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the ‘character test’ because they have a ‘substantial criminal record’, and the person is ‘serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory’.
Under subsection 501(6)(a) of the Act, a person does not pass the character test if they have a ‘substantial criminal record (as defined by subsection (7))’. Pursuant to subsection 501(7)(c) of the Act, a person has a ‘substantial criminal record’ if the person ‘has been sentenced to a term of imprisonment of 12 months or more’.
Subsection 501CA(3) of the Act provides that when a decision has been made under subsection 501(3A) to cancel a visa that has been granted to a person, the Minister must give the person written notice setting out the cancellation decision, particulars of the relevant information and invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original cancellation decision.
Under subsection 501CA(4) of the Act, 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.
For completeness, the Tribunal notes that subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) of the Act. Accordingly, the delegate’s decision not to revoke the mandatory cancelation of the Visa is reviewable by the Tribunal.
The Direction
Under section 499 of the Act, the Minister may give written directions to a person or body, such as the Tribunal, having functions or powers under that Act, if the directions are about the performance of those functions or the exercise of those powers and are not inconsistent with the Act or the regulations made under it. The person or body to whom the directions are given must comply with them, pursuant to subsection 499(2A) of the Act.
On 23 January 2023, the Minister made a direction under section 499 of the Act, being Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99), which commenced on 3 March 2023 and applies in relation to the Tribunal’s consideration of Mr Atuaki’s application for review of the decision not to revoke the mandatory cancellation of his Visa.
The Preamble to Direction 99 sets out its objectives and principles, relevantly including:
(a)the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test is liable for cancellation of their visa (paragraph 5.1(1));
(b)a non-citizen who has had their visa cancelled under subsection 501(3A) of the Act may request revocation of that decision under section 501CA of the Act (paragraph 5.1(3));
(c)where a decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case (paragraph 5.1(3));
(d)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 (paragraph 5.2(1));
(e)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 (paragraph 5.2(2));
(f)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 (paragraph 5.2(3));
(g)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 (paragraph 5.2(4));
(h)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 (paragraph 5.2(5)); and
(i)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 mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(6)).
Paragraph 6 of Direction 99 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Section 8 in Direction 99 relevantly states that, in making a decision under subsection 501CA(4) of the Act, the following are ‘primary considerations’:
(1)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(2)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(3)the strength, nature and duration of ties to Australia (Primary Consideration 3);
(4)the best interests of minor children in Australia (Primary Consideration 4); and
(5)expectations of the Australian community (Primary Consideration 5).
Section 9 of Direction 99 relevantly provides that, in making a decision under subsection 501CA(4) of the Act, the following non-exhaustive list of other considerations must be taken into account, where relevant:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Finally, paragraph 7 of Direction 99 states that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues for determination by the Tribunal in this proceeding were:
(a)whether Mr Atuaki passes the ‘character test’ defined in subsection 501(6) of the Act; and
(b)if not, whether there is ‘another reason’ why the original decision mandatorily cancelling the Visa should be revoked under subsection 501CA(4)(b)(ii) of the Act.
EVIDENCE
Mr Atuaki
Mr Atuaki was self-represented in this proceeding. He did not file a standalone written statement made by himself or a Statement of Facts, Issues and Contentions in support of his application to the Tribunal. However, for the avoidance of doubt, the Tribunal has considered the written material regarding the cancellation of the Visa provided by Mr Atuaki in the process of him seeking the revocation of its cancellation.[17] For example, in Mr Atuaki’s application to the Tribunal for review of the decision not to revoke the mandatory cancellation of his Visa, in answer to the question of why he claimed that decision was wrong, Mr Atuaki stated that:[18]
I would like to show Australia I am a hard worker, and that I will never commit another crime again. I will never do anything like that again. My family, including my three children all rely on me to financially support them from Australia. There is not much work back in Tonga. I have never been in trouble with the law before.
[17] Ibid., pages 7 and 50-72.
[18] Ibid., page 7.
Mr Atuaki gave evidence at the Tribunal hearing by video from Villawood Immigration Detention Centre (Villawood), with the assistance of an interpreter in the Tongan and English languages. Mr Atuaki confirmed that he understood what was being said to him through the interpreter at the hearing.
Mr Atuaki told the Tribunal that he had studied English at school and can understand some words, but not others, and could have ‘a little bit’ of a conversation in English. He can only read and write in English ‘a little bit’. Mr Atuaki is fluent in Tongan and can read, write and speak that language.
Mr Atuaki confirmed that he lived in Tonga until he was 26 years old and fished in a small boat as a means to support his family. He lived with his mother, brother and sister in Tonga. Mr Atuaki’s father died in 2004. He has not maintained contact with friends in Tonga.
Mr Atuaki told the Tribunal that he has a ‘girlfriend’, Seini, in Tonga, who is the mother of his three children. However, Mr Atuaki then said that they are not in a relationship and the last time they spoke was before he went to gaol. During the time Mr Atuaki was working in the Australian community and before he went to gaol, he sent his ‘girlfriend’ approximately $500 weekly, including to support their children, although he said there were some weeks when there ‘was nothing’.
Mr Atuaki was referred to a questionnaire he completed in 2022 when he went to gaol regarding the pro-social supports he had in Tonga, in which he referred to his partner.[19] He agreed with the proposition that, if he returned to Tonga, he would look after his children with his girlfriend, Seini. In this regard, Mr Atuaki told the Tribunal that he wanted to return to Tonga to be with his partner and to look after his children. As a result of this evidence, Mr Atuaki was asked why he wanted his Visa reinstated when he was free to return to Tonga due to being in immigration detention and not gaol. He replied, ‘Yes’.
[19] Exhibit 2, page 15.
Mr Atuaki confirmed that he has three minor children living with their mother in Tonga. He said the main reason he came to Australia was to work in order to support them. Mr Atuaki said he has not been speaking to his children on the telephone.
In light of his earlier evidence, Mr Atuaki was asked whether he wanted his Visa in order to return to the Australian community and to be able to send more money to his family in Tonga. He agreed and said this was his preference, rather than going back to Tonga to look after them, including because there is ‘more money to be made’ in Australia and there is ‘no opportunity to find a job’ in Tonga. He said that, while he missed his children, it was better that he worked in Australia to support his family in Tonga.
Mr Atuaki agreed that he arrived in Australia in July 2021 aged 26. He thereafter worked in full-time jobs related to farm meat and concreting and received approximately $1,500 to $1,600 weekly for this work.
Mr Atuaki confirmed that he is Catholic and had grown up practising that faith in Tonga. He continued attending church in Australia. Mr Atuaki referred to meeting the pastor of his church when he was in the Australian community and to them having video calls while Mr Atuaki was in gaol.
Mr Atuaki told the Tribunal that he has three extended family members in Australia, being an uncle or aunt, niece or nephew and a cousin. He saw them weekly when he was living in the community, but has not communicated with them since he was in gaol. Mr Atuaki said he did not know whether he could live with these family members if he returned to the Australian community. Mr Atuaki said he planned to live with his pastor if released into the community and they have spoken about this potential arrangement, with the pastor having said there would be ‘no alcohol’, ‘there will be no doing anything that’s not right’ and that the focus would be on church.
Mr Atuaki was asked to tell the Tribunal anything else regarding his connection to the Australian community. He said that he wanted ‘an opportunity to be able to live here’ and he would not appear in a court or do anything that was ‘not right’.
Mr Atuaki was referred to his criminal offending in September 2022. He recalled these offences, the subsequent convictions and sentence of imprisonment. Mr Atuaki was referred to the District Court’s sentencing remarks and the statement of agreed facts for that criminal proceeding, the latter document he had signed in May 2023.
Mr Atuaki confirmed that, on the day of the offending in 2022, he had been drinking beer since approximately 2.00pm and up until 8.00pm had consumed around 20 beers. He had also drunk a bottle of scotch whiskey. There was a social gathering at Mr Atuaki’s residence. At 8.00pm, Mr Atuaki punched another man, said to be a friend, three or four times. He recalled this incident and said he punched the man because they were arguing and pushing each other, and Mr Atuaki then ended up punching him. Mr Atuaki said he punched the man three or four times because he was ‘angry’ when the other person said to Mr Atuaki that he was going to throw a punch at him. Mr Atuaki told the Tribunal that, after this incident, he drank a further eight or nine beers. Mr Atuaki recalled hitting the other man with a piece of timber, said to be a covered baseball bat, and that person falling to the floor. He also recalled friends trying to restrain him.
When it was put to Mr Atuaki that he also hit another person who was attempting to assist the person he had hit, Mr Atuaki told the Tribunal he did this because that person kept saying that he would hit Mr Atuaki, so he hit him on the back with the baseball bat. He denied hitting that person around the right eye region. Mr Atuaki was then referred to the statement of agreed facts for his criminal proceeding in 2023.[20] He was taken to the statement in that document that he hit the second person twice with the wooden object, ‘once on the left shoulder and once on the right eye’.[21] Mr Atuaki told the Tribunal that ‘nothing hit’ this person’s eye. As a result, it was put to Mr Atuaki that he was downplaying the seriousness of his offence. He told the Tribunal that he was denying hitting the person in the eye because none of his records indicated that he did so.
[20] Exhibit 3, pages 51-54.
[21] Ibid., page 51.

Mr Atuaki confirmed that, after the incident, he left the premises, went to the local train station and sat there. He said he had told someone to call an ambulance, but was told to leave until he had ‘cleared his head’ and to then return. When Mr Atuaki did return, there were police at the premises.
Mr Atuaki said that he understood that the first victim was seriously injured by his attack and told the Tribunal that he is ‘very remorseful’. It was put to Mr Atuaki that the victim’s injuries and the consequences to his life were very serious. He agreed. Mr Atuaki told the Tribunal that he was apologetic, was ‘very, very drunk’ on that night, this was the first time he had done ‘something like this’ and he was ‘normally not like this’.
Mr Atuaki confirmed that he has not been free in the Australian community since his offending in September 2022.
Mr Atuaki was referred to his written statement to the Minister’s Department from 2023, seeking revocation of the cancellation decision, that he was only seeking to stop a fight.[22] He told the Tribunal this was what he was attempting to do. It was put to Mr Atuaki that these people had not attacked him. He agreed. As a result, Mr Atuaki was asked why he had said he was stopping a fight. He told the Tribunal that he was stopping the fight that had led to a lot of issues, which Mr Atuaki subsequently confirmed to be an argument ‘between drunks’.
[22] Exhibit 1, page 65.
Mr Atuaki told the Tribunal that he accepted alcohol had contributed to his offending. He was referred to notes from the Department of Corrective Services, which recorded that he stated he would binge drink every Friday and Saturday night and consume approximately one carton of beer on each occasion.[23] He said he did this because he was ‘very tired’ after work and would have a beer. If one was not enough, he would ‘get a box’ of beer. Mr Atuaki said he never drank alcohol in Tonga, only in Australia. The Minister’s representative put to Mr Atuaki that he would be in a better situation in Tonga where there was less alcohol. He disagreed, because there is alcohol in Tonga but ‘it depends on you’.
[23] Exhibit 2, page 20.
Mr Atuaki was referred to his earlier evidence that he wanted to get a job if he returned to the Australian community. It was put to Mr Atuaki that he would again drink after work if he had the Visa. Mr Atuaki said that he would ‘never drink alcohol again’. Mr Atuaki was asked why, if not drinking alcohol was important to him, there was no evidence of him having participated in any alcohol rehabilitation. Mr Atuaki said that, while he was in gaol, he completed the ‘AA’ programme of approximately eight weeks and that there should be related documentation in this proceeding. He was asked what he learnt at this course. Mr Atuaki told the Tribunal that it was ‘a study to help me stop drinking’. The Minister’s representative asked Mr Atuaki what advice or tips he had received during this course. In response, Mr Atuaki said that he got ‘some letters and some forms’ regarding his attendance at the course. It was put to Mr Atuaki that the Minister was concerned that he would return to binge drinking if released and was being given the opportunity to tell the Tribunal why the course had reduced this risk. He told the Tribunal that he attended the course because it ‘will help’ him ‘to stop drinking alcohol’.
Mr Atuaki was referred to his time in gaol. He told the Tribunal that he worked from 8.00am packing timber into bags for sale. Mr Atuaki was predominantly in minimum security while imprisoned and denied having done anything to result in him being moved to maximum security at some point during his imprisonment. Mr Atuaki said that he attended church every Sunday while imprisoned. He was recently released from gaol and transferred to Villawood. This was the earliest possible date he could have been released from gaol on parole pursuant to his sentence.[24]
[24] Exhibit 1, pages 29-30.
Mr Atuaki told the Tribunal that if he is released into the community, after initially living with his pastor, he would focus on working and attending church. He was asked about the group of friends he socialised with on the night of his offending. Mr Atuaki told the Tribunal that he no longer has contact with any of them and that ‘it’s done’. It was again put to Mr Atuaki that he has said that he would return to work and has undertaken binge drinking after work and asked why it would be different in the future. He told the Tribunal that his focus would be to work and when he returned home tired after work ‘there would be no more alcohol’; he said that he has learnt from this experience and will never go through it again. Finally, Mr Atuaki told the Tribunal that he wanted ‘an opportunity to have one last chance’ in the Australian community to work in order to ‘support my family’.
Mr Kelepi Atuaki
The Tribunal has considered the sole document provided by Mr Atuaki in this proceeding, being a one-page undated letter from his brother, Kelepi Atuaki, which was drafted for the purpose of Mr Atuaki’s court proceedings in August 2023.[25] Mr Kelepi Atuaki’s letter relevantly stated that when growing up in Tonga their parents were ‘alcohol free’, Mr Atuaki is ‘always making sure his family are secured, fed well and are always together’, he attends church weekly and provides ‘food for his family by fishing’.[26] Mr Kelepi Atuaki further stated that he considered his brother would make ‘better choices in the future and I will support him in every way so that he can continue on providing and helping his little family and our family back at home’.[27] Mr Kelepi Atuaki also said he hoped that his brother would be given a ‘second chance to prove himself to the family and Australian government that he is better man today from yesterday.’[28]
[25] Exhibit 4.
[26] Ibid.
[27] Ibid.
[28] Ibid.
The Tribunal notes that, because the Minister had not received from Mr Atuaki the undated letter from his brother within the required time under the Act for Mr Kelepi Atuaki’s oral evidence to be considered at the hearing, in circumstances where Mr Atuaki was self-represented in this proceeding and for the avoidance of doubt, the Minister agreed to the Tribunal’s invitation for the Minister to also formally tender with the Tribunal the letter from Mr Atuaki’s brother to ensure that it was before the Tribunal in this proceeding. Accordingly, the Tribunal took that document into evidence.[29]
[29] Ibid.
Despite Mr Atuaki not indicating that he wished to call his brother to give evidence in support of his application at the hearing, the Tribunal asked Mr Atuaki whether he wanted to do so. He told the Tribunal that he did want his brother to appear as a witness and that he would be available to give evidence on the day of the hearing. The Tribunal told Mr Atuaki that, over the luncheon adjournment of the hearing, he should seek to contact his brother to inform him that he would be called to give evidence at some time after that break in the proceeding.
During that adjournment, Mr Atuaki attempted to contact his brother regarding his availability to appear as a witness in the proceeding. At the resumption of the hearing, Mr Atuaki told the Tribunal he had been unsuccessful in contacting his brother, despite calling him ‘about 10 times’ and sending him a message via Facebook.
Following the conclusion of Mr Atuaki’s evidence shortly after the luncheon adjournment, the Tribunal again confirmed with Mr Atuaki that he wanted his brother to give evidence. As a result, the Tribunal telephoned Mr Atuaki’s brother, but he did not answer that call. Therefore, in all of the circumstances, including to ensure that every effort was made to contact Mr Atuaki’s brother, the Tribunal considered that it should again adjourn the hearing to allow Mr Atuaki to contact his brother. Upon the resumption of the hearing, Mr Atuaki told the Tribunal that he was again unsuccessful in contacting his brother during the adjournment.
The Tribunal noted that it was not until the Tribunal raised the prospect of Mr Atuaki’s brother giving evidence that Mr Atuaki said he wished to have his brother do so. It also noted that multiple unsuccessful attempts had been made to contact Mr Atuaki’s brother during the course of the hearing. The Tribunal again then unsuccessfully tried twice to contact Mr Atuaki’s brother. As a result, in all of the circumstances, and mindful of Mr Atuaki being self-represented in the proceeding, the Tribunal made the following Directions on 21 March 2024, in relation to the proposed calling of Mr Atuaki’s brother as a witness in this proceeding:
1.On or before 28 March 2024, the Applicant must inform the Tribunal and the Respondent:
a. of the date(s) and time(s) that his brother, Mr Kelepi Atuaki, is available to give evidence to the Tribunal in this proceeding; OR
b. that Mr Kelepi Atuaki is not available to give evidence or, even if he were available, that the Applicant no longer wishes to call him as a witness in this proceeding,
noting that the Tribunal must make its decision by 10 April 2024.
2. Subject to the Applicant’s response to Direction #1 above, on or before 3 April 2024, the Respondent must inform the Tribunal and the Applicant of its position in relation to the proposed evidence of the Applicant’s brother. [emphasis in original]
Also on 21 March 2024, the Tribunal emailed its above Directions to Mr Atuaki at Villawood. The Tribunal was informed on that date by Villawood that the Directions had been printed for hand delivery to Mr Atuaki. On 25 March 2024, Mr Atuaki informed the Minister’s representative that his brother was available at 11.00am the following day (26 March 2024) to give evidence in this proceeding. The Minister did not oppose that proposed course.
Accordingly, Mr Atuaki’s brother gave evidence at a resumed hearing of the Tribunal and recalled writing the abovementioned letter last year.
Mr Atuaki confirmed that he had no questions for his brother.
Mr Atuaki’s brother told the Tribunal that they grew up together in Tonga and that his brother did not drink and attended church on Sunday. He also fished to sustain himself and his young family in Tonga. Additionally, Mr Atuaki’s brother said that he provided the letter in support last year because he wanted his brother to have ‘another chance’ and he was sure his brother would not do ‘anything like this again’ and it would be good for him to have an opportunity for this to be demonstrated.
Under cross-examination, Mr Atuaki’s brother told the Tribunal that he is presently in Australia for ‘seasonal work’ on a farm. He has been in this country for ‘about two years’ and is returning to Tonga in June this year pursuant to the terms of his visa arrangements with his employer. He plans to ‘rest’ in Tonga for three months and then come back to work in Australia. Mr Kelepi Atuaki confirmed that his brother had been in prison or detention for the whole period he had been in Australia. They last spoke at the time he wrote the letter in support of his brother in or around August 2023 for the court proceeding.
Mr Atuaki’s brother was asked whether his family grew up drinking alcohol in Tonga. He told the Tribunal that their mother did not drink, and their father had passed away. The brothers were in Australia to support their family in Tonga. He said that his brother was ‘never drunk in Tonga’.
Mr Atuaki’s brother told the Tribunal that the family all live ‘at home’ in Tonga and his brother could also reside there if he returned to that country.
Mr Kelepi Atuaki confirmed that he had worked in Tonga as a carpenter and said that his brother, Mr Atuaki, had worked in Tonga as a security guard at the local hospital and other office buildings.
Mr Atuaki had no questions for his brother by way of re-examination.
There were no other witnesses called to give evidence at the Tribunal hearing.
CONTENTIONS
Mr Atuaki
Mr Atuaki did not contend that he passed (or alternatively did not pass) the character test under subsection 501(6) of the Act regarding having a ‘substantial criminal record’, as defined by subsection 501(7) of the Act. However, Mr Atuaki did contend that the original decision to cancel his Visa should be revoked by the Tribunal, pursuant to subsection 501CA(4)(b)(ii) of the Act.
Mr Atuaki told the Tribunal that he is ‘very remorseful’ for what he had done and that he would not repeat the offending. He sought forgiveness and said that if he had another opportunity he would ‘not use alcohol’ and would ‘make positive changes’ in his life. Mr Atuaki said he wanted another opportunity to participate in the Australian community, including to work in order to financially support his family in Tonga.
Minister
The Minister contended that Mr Atuaki did not pass the character test and there was not ‘another reason’, pursuant to subsection 501CA(4)(b)(ii) of the Act, why the cancellation decision should be revoked. The Minister submitted that Primary Consideration 1, the protection of the Australian community, and Primary Consideration 5, the expectations of the Australian community, weighed significantly in favour of not revoking the mandatory cancellation of the Visa, and that the cumulative weight assigned to these primary considerations exceeded the cumulative weight to be assigned to the considerations weighing in Mr Atuaki’s favour. Accordingly, the Minister contended, the correct or preferable decision was to affirm the decision under review not to revoke the mandatory cancellation of Mr Atuaki’s Visa.
CONSIDERATION
Does Mr Atuaki pass the character test under the Act?
On 25 August 2023, Mr Atuaki was sentenced by the District Court of New South Wales to an aggregate term of three years’ imprisonment for the offences of ‘Reckless grievous bodily harm-T1’ and ‘Common assault-T2’.[30] Under subsection 501(7)(c) of the Act, Mr Atuaki therefore has a ‘substantial criminal record’ because he has been sentenced to a term of imprisonment of 12 months or more, being an aggregate three year sentence for the offences with a non-parole period of 18 months.
[30] Exhibit 1, pages 29-30.
For completeness, the Tribunal notes that, pursuant to section 5AB of the Act, inserted by the Migration Amendment (Aggregate Sentences) Act 2023, the provisions of the Act and the regulations ‘apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence’. The Tribunal is therefore satisfied that there is no issue regarding the applicability of the Act due to Mr Atuaki having been sentenced to a term of imprisonment for two offences, that is an aggregate term, rather than separately for each of those offences.
Pursuant to subsection 501(6)(a) of the Act, Mr Atuaki fails the character test due to having a substantial criminal record. Accordingly, for the purpose of subsection 501CA(4)(b)(i) of the Act, the Tribunal is satisfied that Mr Atuaki does not pass the character test as defined in subsection 501(6)(a) of the Act.
Is there another reason why the decision to cancel the Visa should be revoked?
As a result of the Tribunal’s finding that Mr Atuaki does not pass the ‘character test’, pursuant to subsection 501CA(4)(b)(ii) of the Act, it turns to consider whether there is ‘another reason’ why the mandatory cancellation decision should be revoked.
In accordance with subsection 499(2A) of the Act, the Tribunal must comply with Direction 99 in making a decision regarding a request for revocation of a mandatory cancellation decision pursuant to section 501CA of the Act. Paragraph 6 of Direction 99 provides that a decision-maker must take into account the primary and other considerations identified in Direction 99, where relevant to the decision. Accordingly, the Tribunal sets out below its evaluation of Mr Atuaki’s circumstances against the relevant considerations in Direction 99.
Primary Consideration 1 – Protection of the Australian Community
Paragraph 8.1 of Direction 99, regarding Primary Consideration 1, states that:
(1)   When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or 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.
(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.
The nature and seriousness of Mr Atuaki’s conduct
Paragraph 8.1.1 of Direction 99 sets out a list of factors that decision-makers must have regard to in considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, which includes:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c);
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)     with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending;
f)   whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending, in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h)    where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The circumstances of Mr Atuaki’s offending were summarised in the sentencing remarks of the District Court on 25 August 2023, relevantly as follows:[31]
(a)in the afternoon and evening of Sunday, 11 September 2022, Mr Atuaki was hosting some friends at his residence, including the two victims;
(b)Mr Atuaki and the two victims, Mr Metui and Mr Lolohea, were heavily intoxicated;
(c)at around 8.00pm, after Mr Metui ‘had been teasing him, and challenging him to a fight’, Mr Atuaki punched Mr Metui three or four times causing Mr Metui to fall to the floor. Mr Metui ‘did not punch him back’. Mr Atuaki’s friends intervened and restrained Mr Atuaki;
(d)after an intervening period, and further alcohol consumption by Mr Atuaki of ‘eight to nine beers’, Mr Atuaki hit Mr Metui on the forehead with wooden object after Mr Metui had ‘recommenced challenging and teasing Mr Atuaki’. Mr Metui fell to the floor and Mr Atuaki’s friends again restrained Mr Atuaki;
(e)when Mr Lolohea attempted to aid Mr Metui after this second incident, he was hit twice with the wooden object by Mr Atuaki, once on the left shoulder and once on the right eye. Mr Atuaki then left his residence;
(f)Mr Metui was taken to Liverpool Hospital where he remained until 30 September 2022;
(g)Mr Metui sustained a head injury involving bleeding on the brain, and bleeding within the skull more generally. He was placed under the care of a neurosurgeon. Mr Metui’s injuries were described more specifically as ‘a frontal extradural haematoma, a small bilateralfrontal haematoma, left frontal subarachnoid haemorrhage, small intraparenchymal haemorrhage, a frontal sinus fracture, and an impressed frontal bone fracture’. Mr Metui also sustained an eight centimetre long laceration to the left frontal area of his scalp.
[31] Ibid., pages 31-45.

Based on the evidence before the Tribunal, Mr Atuaki’s offending comprised violent crimes which are viewed ‘very seriously’ by the Australian Government and the Australian community, pursuant to paragraph 8.1.1(1) of Direction 99. For the avoidance of doubt, the Tribunal also finds that these violent crimes of Mr Atuaki were very serious and that they weigh very heavily against revocation of the mandatory cancellation of the Visa.
In relation to paragraph 8.1.1(1)(b) of Direction 99, there was no evidence before the Tribunal that this element was applicable because Mr Atuaki has not committed any other crimes or conduct that may be considered serious by the Australian Government and the Australian community. Accordingly, the Tribunal finds that this element is neutral in its determination of this review.
Turning to consider the sentence imposed by the courts for a crime or crimes pursuant to paragraph 8.1.1(c) of Direction 99, plainly a sentence of imprisonment is the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offending.[32] The overall seriousness of Mr Atuaki’s criminal offending is demonstrated by the sentence of imprisonment imposed upon him by the court.[33] As set out above, Mr Atuaki was sentenced to an aggregate term of three years’ imprisonment with a non-parole period of 18 months for ‘Reckless grievous bodily harm-T1’ and ‘Common assault-T2’.[34] The Tribunal finds that the sentence imposed by the court weighs against revocation. However, the Tribunal is satisfied that this element is moderated due to the District Court applying special circumstances in determining the sentence, including taking into account Mr Atuaki’s guilty plea, the evidence that Mr Atuaki was ‘provoked’ and his subsequent attack was ‘brief’, the offences being his only criminal offending and his stated focus on rehabilitation.[35]
[32] PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]. See also Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
[33] Exhibit 1, pages 29-45.
[34] Ibid., pages 33-35.
[35] Ibid., pages 31-45.
With respect to paragraphs 8.1.1(d) and (e) of Direction 99, Mr Atuaki’s offending history comprises the two aforementioned convictions; he has no other criminal history in Australia or elsewhere. Therefore, the Tribunal is satisfied that Mr Atuaki has not engaged in frequent offending and there has accordingly been no trend of increasing seriousness or what could be a cumulative effect of any repeat offending. The Tribunal finds that these matters weigh in Mr Atuaki’s favour.
Additionally, for completeness, the Tribunal notes that paragraphs 8.1.1(f), (g) and (h) are inapplicable to Mr Atuaki. In this regard, Mr Atuaki has not provided false or misleading information to the Department, he was not formally warned about the consequences on his migration status of further offending and his offending was not committed in a country other than Australia. The Tribunal therefore finds that these matters are neutral in its determination of this review.
Having regard to all the evidence and the relevant considerations in paragraph 8.1.1 of Direction 99, the Tribunal finds that this limb of Primary Consideration 1, the nature and seriousness of Mr Atuaki’s conduct, weighs heavily against revocation of the original decision to cancel his Visa.
The risk to the Australian community should Mr Atuaki commit further offences or engage in other serious conduct
The Tribunal turns to consider the risk to the Australian community pursuant to paragraph 8.1.2 of Direction 99, which provides as follows:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Given the Tribunal’s above findings about the objective seriousness of the offences committed by Mr Atuaki, it follows that the nature of the potential harm to the Australian community should he again engage in similar criminal or other conduct is very serious; it would likely involve significant physical and psychological harm to members of the community. Mr Atuaki’s physical violence resulted in severe head trauma to his first victim, which required an extended period of hospitalisation and recovery. To this end, based on the evidence before the Tribunal, it is satisfied that the harm that would be caused, if it were to be repeated by Mr Atuaki, is so serious that any risk of it being repeated is unacceptable, pursuant to paragraph 8.1.2(1) of Direction 99.
As previously set out in these reasons, Mr Atuaki has been convicted of serious violent crimes.[36] The circumstances surrounding the commission of Mr Atuaki’s crimes, being that he had consumed a significant amount of alcohol at the time of his offending, do not derogate from their seriousness or the nature of the harm that would likely be caused if he engaged in further criminal or other serious conduct. Accordingly, the Tribunal is satisfied that the nature of the harm to individuals or the Australian community should Mr Atuaki engage in further criminal or other serious conduct is likely to be significant. The Tribunal finds that this weighs very heavily against revocation of the decision to cancel his Visa.
[36] Ibid., pages 29-30.
In relation to the likelihood of Mr Atuaki engaging in further criminal conduct or other serious conduct, under paragraph 8.1.2(2)(b) of Direction 99, based on the evidence before the Tribunal, it accepts that the likelihood is low. In reaching this finding, the Tribunal has had regard to the limited available information and evidence in this proceeding regarding Mr Atuaki’s risk of re-offending and evidence of his rehabilitation. In this regard, there was no independent evidence presented for this proceeding, such as from a psychologist or psychiatrist, regarding Mr Atuaki’s risk of re-offending or his rehabilitation. However, the Tribunal notes that, when sentencing Mr Atuaki in 2023, the District Court referred to a ‘sentencing assessment report’, which document was not before the Tribunal but was said to have concluded that Mr Atuaki posed a low risk of re-offending.[37] The District Court said that it did ‘not disagree’ with the opinion expressed in the report that Mr Atuaki ‘poses a low risk of re-offending’.[38] The Court further noted that Mr Atuaki is ‘without a history of criminal convictions’ and his ‘custodial history is at least unremarkable, if not exemplary’.[39]
[37] Ibid., page 42.
[38] Ibid.
[39] Ibid.
Further in relation to the risk of re-offending, Mr Atuaki submitted to the Tribunal that he would never again drink alcohol or offend. Mr Atuaki acknowledged that his criminal offending was associated with his alcohol consumption and the Tribunal considers that he was genuinely remorseful for his violent actions. However, despite Mr Atuaki’s contention regarding him having a reduced risk of recidivism, the Tribunal considers that his ability to avoid alcohol in the community is uncertain. While Mr Atuaki’s incarceration and detention has removed his access to alcohol, his abstinence in the community is untested since the offending in September 2022, up until which time he was binge drinking at a significant level.
The Tribunal notes that paragraph 8.1.2(2)(b)(ii) of Direction 99 requires a decision-maker to take into account evidence of rehabilitation achieved by the time of the decision and notes that decisions should not be delayed in order for rehabilitative courses to be undertaken. Mr Atuaki told the Tribunal at the hearing that he had attended an ‘AA’ course while in gaol. There was no documentary material to corroborate that evidence, and Mr Atuaki’s testimony regarding what he learnt from this course was limited. However, the Tribunal accepts that Mr Atuaki attended such a programme and finds that this demonstrates some rehabilitation and weighs in favour of revocation.
In addition, while the Tribunal accepts that a factor in favour of Mr Atuaki is his abstinence from alcohol since September 2022, noting that he has either been imprisoned or in immigration detention since this time, the true test of that abstinence would occur if he was released into the community where alcohol may be reasonably readily available. In this regard, Mr Atuaki gave evidence of his completion of the ‘AA’ course while in gaol. He also displayed some insight into his own responsibility for future alcohol consumption when he told the Tribunal that it was dependant upon the person to avoid alcohol, regardless of the level of its availability in either Australia or Tonga. Mr Atuaki also gave evidence that if he returned to living in the Australian community he would focus on work and church, and not drink again.
However, in contrast, at the Tribunal hearing Mr Atuaki expressly denied the extent of his violent actions against the second victim, despite having signed the statement of agreed facts provided to the court in 2023 which set out the nature of that offending.[40] The Tribunal finds, despite Mr Atuaki’s accepted remorsefulness, that this demonstrated a lack of insight from Mr Atuaki into the totality of his offending.
[40] Exhibit 3, page 54.
The Tribunal acknowledges that there was no evidence of any issue with Mr Atuaki during his 18 month period of imprisonment or while he has since been in immigration detention and that he was released on parole at the earliest available opportunity. The Tribunal accepts that these matters weigh in his favour.
The Tribunal also accepts that Mr Atuaki’s interaction with the criminal justice system and the Visa cancellation process will act as a deterrent against any further offending, including noting Mr Atuaki’s insight into the impact of any future offending. Mr Atuaki was also predominantly in minimum security while in gaol and was released on parole after serving 18 months of his sentence in gaol. These matters reduce the risk to the Australian community and weigh in Mr Atuaki’s favour.
As detailed above in these reasons, Mr Atuaki has spent no time in the community since his conviction in 2023, which period of time therefore, pursuant to paragraph 8.1.2(2)(b)(ii) of Direction 99, does not weigh in favour of Mr Atuaki in relation to evidence of rehabilitation.
For completeness, the Tribunal notes that its consideration in this proceeding is in relation to whether to revoke the mandatory cancellation of Mr Atuaki’s Visa and not whether to refuse to grant a visa to Mr Atuaki, pursuant to paragraph 8.1.2(2)(c) of Direction 99. Therefore, this factor is not an issue in this proceeding.
The Tribunal finds that the weight attributable to the aforementioned factors in favour of revoking the cancellation decision are moderated given the seriousness of the potential harm to individuals should Mr Atuaki engage in future serious criminal offending. That is, the factors indicating a reduced likelihood of Mr Atuaki engaging in further criminal or other serious conduct do not outweigh the significant factors against him.
Based on all of the above considerations, the Tribunal finds that there is a low, but continuing risk to the Australian community that Mr Atuaki will re-offend in the future, which likelihood represents an unacceptable risk of harm given the serious nature of his previous offending. Accordingly, this limb of Primary Consideration 1, being the risk to the Australian community, weighs heavily against revocation of the original decision.
Conclusion – Primary Consideration 1
In conclusion in relation to Primary Consideration 1, the protection of the Australian community from criminal or other serious conduct, the Tribunal has found that the nature and seriousness of Mr Atuaki’s conduct weighs heavily against revocation of the original decision to cancel his Visa. Additionally, the Tribunal has found that there is a continuing risk to the Australian community that Mr Atuaki will re-offend in the future, which represents an unacceptable risk of harm and also weighs heavily against revocation. On balance, and considering the totality of relevant factors in Primary Consideration 1, the Tribunal finds that Primary Consideration 1 weighs heavily against revocation of the original decision to mandatorily cancel Mr Atuaki’s Visa.
Primary Consideration 2 – Family violence committed by the non-citizen
Paragraph 8.2(1) of Direction 99 refers to the Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia, and that these concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen. Paragraph 8.2(2) of Direction 99 states that this consideration is relevant in circumstances where a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence and/or there is information or evidence indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness.
Having regard to the evidence regarding Mr Atuaki’s offending, the Tribunal finds that Primary Consideration 2 is not applicable and is given no weight in this decision.
Primary Consideration 3 – Strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction 99 provides that:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
ii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
As set out above, paragraph 8.3(1) of Direction 99 requires the Tribunal to consider any impact of the decision on Mr Atuaki’s immediate family members in Australia. Based on the available evidence, the Tribunal is satisfied that Mr Atuaki has no immediate family members in Australia as contemplated by this paragraph of Direction 99, because the only family member that could be considered to be an immediate family member in Australia, his brother, is not an Australian citizen, Australian permanent resident, or a person who has a right to remain in Australia indefinitely. Additionally, Mr Atuaki’s mother, other sibling, partner and three minor children all live in Tonga. Accordingly, the Tribunal finds that this weighs neutrally in its consideration.
In considering ties to Australia, paragraph 8.3(2) of Direction 99 requires more weight to be given to a non-citizen’s ties to his or her children who are Australian citizens, permanent residents or have a right to remain indefinitely in Australia. As described above in these reasons, while Mr Atuaki has three minor children, they all live with their mother in Tonga and there was no evidence before the Tribunal to indicate that any of these children are Australian citizens, permanent residents or have a right to remain indefinitely in Australia. As a result, this also weighs neutrally in the Tribunal’s consideration.
Under paragraph 8.3(3) of Direction 99, the Tribunal must also consider the strength, nature and duration of any family or social links generally with Australian citizens, permanent residents and people who have a right to remain indefinitely in Australia. Mr Atuaki’s three non-immediate family members in Australia that may be Australian citizens, permanent residents and people who have a right to remain indefinitely in Australia, are an aunt or uncle, niece or nephew and a cousin. There was no evidence before the Tribunal from any of these people, including in relation to their visa or residence status in Australia. Despite this, the Tribunal accepts, for the purpose of considering this matter, that these three extended family members are Australian citizens, permanent residents or have a right to remain indefinitely in Australia. Mr Atuaki told the Tribunal that before his criminal offending in September 2022, he would socialise weekly with these family members. However, he also said that, since that time, he has not corresponded with these extended family members in Australia. Nevertheless, the Tribunal accepts that the prospect of future contact cannot be discounted. Accordingly, the Tribunal is satisfied that these familial links weigh marginally in favour of revocation of the cancellation decision.
Additionally, the Tribunal had evidence from Mr Atuaki that he has ties to his religious pastor and church.[41] While there was no evidence from the pastor, the Tribunal accepts that Mr Atuaki has strong social links to that person and they, together with other members of the church, would experience some emotional impact following a decision adverse to Mr Atuaki. These social ties necessarily weigh in favour of revocation of the cancellation decision. The Tribunal had no further evidence regarding the strength, duration and nature of any other social links. In this regard, Mr Atuaki told the Tribunal that he had severed ties with the friends he socialised with on the night of his offending in September 2022 and there was no evidence before the Tribunal from these people, including letters of support. Accordingly, the Tribunal gives this element moderate weight in Mr Atuaki’s favour.
[41] Exhibit 1, pages 58 and 67.

The Tribunal turns to consider the strength, nature and duration of any other ties that Mr Atuaki has to the Australian community pursuant to paragraph 8.3(4) of Direction 99. As previously detailed in these reasons, Mr Atuaki has resided in Australia since July 2021, a period of less than three years and has been incarcerated and in immigration since September 2022, being approximately 14 months since he arrived in Australia aged 26. Plainly, Mr Atuaki has not resided in Australia during and since his formative years, which would attract ‘considerable weight’ in his favour, pursuant to paragraph 8.3(4)(a)(i) of Direction 99. For the avoidance of doubt, the Tribunal considers that Mr Atuaki’s brother, Mr Kelepi Atuaki, is another tie to the Australian community given that he presently resides in this country, albeit on what the limited evidence before the Tribunal indicated was a temporary visa to remain in Australia, in circumstances where he told the Tribunal that he is returning to Tonga in June 2024 under the terms of his visa and seasonal employment in this country. In addition, Mr Atuaki’s brother has resided in Australia for approximately two years, noting that for the majority of that time, being approximately 18 months, Mr Atuaki has been in gaol and immigration detention, and they had not been in contact since Mr Kelepi Atuaki provided the letter in support of his brother in or around August 2023. Nevertheless, the Tribunal finds that this tie to the Australian community weighs in favour of revocation of the decision to cancel the Visa.
Pursuant to paragraph 8.3(4)(a)(ii) of Direction 99, more weight should be given to the time a non-citizen has resided in Australia where they have ‘contributed positively’ to the Australian community during that time. Based on the evidence before the Tribunal, Mr Atuaki was employed for the 14 months he resided in the Australian community and therefore likely paid income tax. He also attended church on a weekly basis. In these respects, Mr Atuaki has made some positive contributions to the Australian community. The Tribunal finds that this element attracts moderate weight in favour of Mr Atuaki.
In addition, the Tribunal is satisfied that Mr Atuaki has the capacity and plans to make a positive contribution to the Australian community in the future, provided protective factors are secured such as the continued cessation of alcohol use, and having regard to elements of his time in gaol and immigration detention, such as his behaviour and work in various capacities.[42] Nevertheless, the Tribunal affords minimal weight in favour of revocation in relation to this element because Mr Atuaki’s positive contribution occurred while incarcerated for the criminal offences, which offending made demonstrably negative contributions to the Australian community.[43]
[42] Exhibit 2, pages 18-45.
[43] Ibid.
Despite those above factors weighing in Mr Atuaki’s favour, they are necessarily diminished due to his criminal offending in Australia resulting in the convictions in 2023. This offending was violent and began ‘soon after arriving in Australia’, in circumstances where he had been in Australia for approximately 14 months when he committed the offences.
Accordingly, having regard to all the evidence in relation to Primary Consideration 3, the Tribunal finds that the strength, nature and duration of ties to Australia, weighs marginally in favour of Mr Atuaki and revocation of the decision to cancel his Visa.
Primary Consideration 4 – Best interests of minor children in Australia
Paragraph 8.4 of Direction 99 requires decision-makers to make a determination about whether non-revocation under section 501CA of the Act is, or is not, in the best interests of a child affected by the decision. This consideration applies, pursuant to paragraph 8.4(2), only if the child is, or would be, under 18 years old at the time when the decision not to revoke the mandatory cancellation of the visa is expected to be made.
Mr Atuaki has three minor children who all reside in Tonga with their mother; he has no minor children in Australia and, based on the evidence before the Tribunal, there are no other relevant minor children in Australia.[44] There was accordingly no submission or evidence before the Tribunal indicating that this consideration was relevant in this proceeding. As a result, the Tribunal is satisfied that there are no minor children in Australia who will be affected by the decision as contemplated by this consideration. Accordingly, the Tribunal finds that Primary Consideration 4 is not relevant and gives it no weight in this decision.
[44] Exhibit 1, page 60.
However, for completeness, the Tribunal considers, as an ‘other consideration’ further below in these reasons, Mr Atuaki’s submission that he wishes to work in the Australian community in order to financially support his family, including his three minor children in Tonga.
Primary Consideration 5 – Expectations of the Australian community
Paragraph 8.5(1) of Direction 99 states that:
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 addition, paragraph 8.5(2) of Direction 99 provides that non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. In accordance with paragraph 8.5(3) of Direction 99, the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Moreover, paragraph 8.5(4) of Direction 99 states that Primary Consideration 5 is about the expectations of the Australian community as a whole, and that decision-makers should proceed on the basis of the Government’s views articulated in relation to this consideration, without independently assessing the community’s expectations in the particular case.[45] Furthermore, as the Federal Court of Australia said in YNQY v Minister for Immigration and Border Protection, the consideration is ‘in substance...adverse to any applicant’.[46] However, it is still necessary for the Tribunal to assess the circumstances particular to Mr Atuaki in evaluating this consideration. In this regard, Justice Stewart in FYBR v Minister for Home Affairs[47] said as follows:
[97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 [now Direction 99] does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.
[45] See also FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [75].
[46] [2017] FCA 1466 at [76].
[47] (2019) 272 FCR 454; [2019] FCAFC 185.
Paragraph 8.5(1) of Direction 99 makes plain that the Australian community expects that non-citizens will obey Australian laws. Mr Atuaki has breached this trust and has been convicted of two violent criminal offences in Australia. The Tribunal has found that Mr Atuaki’s offending was very serious. To reflect the gravity of his offending, Mr Atuaki was sentenced to an aggregate term of imprisonment of three years, with a non-parole period of 18 months.
In this regard, pursuant to paragraph 8.5(2) of Direction 99, non-revocation of the mandatory cancellation of the Visa may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not continue to hold a visa. The Tribunal is satisfied that Mr Atuaki’s very serious violent offences gives rise to the Australian community expecting that the Australian Government can and should cancel the Visa.
For these reasons, the Tribunal finds that Primary Consideration 5 weighs heavily against the revocation of the decision to cancel the Visa.
The Tribunal also notes the principle at paragraph 5.2(3) of Direction 99 that the Australian community expects that the Australian Government can and should cancel a non-citizen’s visa 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. This principle is applicable in relation to Mr Atuaki and the Tribunal has found above that paragraphs 8.5(2) and (3), which encapsulate this principle, weigh against Mr Atuaki and in favour of non-revocation of the cancellation decision.
The principle at paragraph 5.2(4) of Direction 99 is, relevantly, that Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been ‘participating in, and contributing to, the Australian community only for a short period of time’. The Tribunal finds that this stated ‘low tolerance’ is applicable to Mr Atuaki because he had been participating in, and contributing to, the Australian community for only around 14 months before his offending and subsequent imprisonment. Mr Atuaki arrived in Australia from Tonga less than three years ago in July 2021. While there was minimal evidence of Mr Atuaki’s positive participation in, and contribution to, the community, the Tribunal accepts that Mr Atuaki had participated and contributed for the approximately 14 months in which he resided in the community while in Australia. In the Personal Circumstances Form Mr Atuaki submitted to the Department in 2023, he listed his employment history in Australia as being in farm meat from July 2021 to February 2022 and concrete from February 2022 to September 2022.[48] Accordingly, there was some evidence of Mr Atuaki having been employed in Australia and therefore likely having paid some income tax.[49] He also attended church weekly. Additionally, Mr Atuaki has not been convicted of any other criminal offences.[50] However, any weight attributable under this principle to the revocation of the cancellation decision is severely moderated due to the negative contribution made to the Australian community by Mr Atuaki having committed the serious criminal offences in 2022.
[48] Exhibit 1, page 66.
[49] Ibid.
[50] Ibid., page 36.
As previously stated, Mr Atuaki arrived in Australia aged 26 in 2021. He has lived in Australia since that time, being a period of almost three years, although he only lived in the Australian community for a period of approximately 14 months before the offending, following which he has been incarcerated and in immigration detention. Mr Atuaki has not lived in the Australian community for most of his life or from a very young age. Pursuant to paragraph 5.2(5) of Direction 99, 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, and 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. Having regard to this principle, the Tribunal is satisfied that it does not apply to Mr Atuaki and it is given no weight under this Primary Consideration 5.
On balance, having regard to all of the aforementioned matters, the Tribunal finds that Primary Consideration 5, the expectations of the Australian community, weighs heavily against revocation of the decision to cancel Mr Atuaki’s Visa.
Conclusion: Primary Considerations
In concluding its analysis of the primary considerations under Direction 99, the Tribunal has found that two primary considerations, Primary Consideration 1, the protection of the Australian community and Primary Consideration 5, the expectations of the Australian community, both weigh heavily against revocation of the original decision cancelling Mr Atuaki’s Visa. The Tribunal has also found that Primary Consideration 3, the strength, nature and duration of ties to Australia, weighs marginally in favour of Mr Atuaki and revocation of the decision to cancel the Visa. The Tribunal again notes that both Primary Consideration 2 and Primary Consideration 4 were inapplicable and afforded no weight in this decision.
Other considerations
Paragraph 9 of Direction 99 provides that ‘other considerations’ must be taken into account where relevant and include (but are not limited to): legal consequences of the decision; extent of impediments if removed; impact on victims; and impact on Australian business interests. The Tribunal turns to address these listed ‘other considerations’ and notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Justice Colvin said in Suleiman v Minister for Immigration and Border Protection (Suleiman):[51]
…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 [now Direction 99] does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 [now Direction 99] does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [now Direction 99] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[52]
[51] [2018] FCA 594.
[52] Ibid at [23].
Legal consequences of the decision
Paragraph 9.1(1) of Direction 99 provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime detention under section 189, noting also that subsection 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Accordingly, the Tribunal acknowledges that, as an unlawful non-citizen, Mr Atuaki is presently in immigration detention in Australia and, following an adverse decision in this proceeding, liable to removal from this country to Tonga as soon as reasonably practicable pursuant to the Act.
As set out in paragraph 9.1(2) of Direction 99, a non-refoulment 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. This obligation on Australia arises under international law pursuant to various international treaties and covenants. However, as noted in paragraph 9.1(3) of Direction 99, 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.
That is the situation in this proceeding. Mr Atuaki did not contend that any international non-refoulment obligation was applicable to him in this proceeding and, for the avoidance of doubt, the Tribunal is satisfied on the available evidence that the circumstances do not indicate that there would be any non-refoulement claim, noting again that Mr Atuaki is a citizen of Tonga, and no protection visa application or protection finding as defined by section 197C of the Act has been made in relation to Mr Atuaki. Accordingly, this other consideration in Direction 99 is not relevant and the Tribunal gives it no weight in this decision.
Extent of impediments if removed
Paragraph 9.2(1) of Direction 99 requires consideration of 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.
Mr Atuaki is a citizen of Tonga and lived in that country up until he was 26 years old. He is now 29.[53] The evidence before the Tribunal indicated that Mr Atuaki presently has no known health issues. Accordingly, the Tribunal is satisfied that Mr Atuaki’s age and health will not likely present impediments in establishing himself and maintaining basic living standards if he is removed from Australia, and therefore does not weigh in favour of revocation of the cancellation decision.
[53] Exhibit 1, pages 2, 29 and 74.
Mr Atuaki was born and raised in Tonga. He has immediate family in Tonga and is fluent in the Tongan language; he can read, write and speak that language. Accordingly, the Tribunal is satisfied that Mr Atuaki would face no substantial language or cultural barriers if removed from Australia to Tonga. The Tribunal therefore finds that this factor does not weigh in favour of revocation.
Mr Atuaki has social ties and a support network in Tonga and the Tribunal is satisfied that this will likely not result in him experiencing more than initial difficulties in establishing himself in that country. In this regard, Mr Atuaki’s mother, one of his two siblings, his partner and three minor children currently all live in Tonga. There was evidence from Mr Atuaki that he previously lived with his immediate family in Tonga and there was no suggestion that this accommodation could not, at least initially, again be available to him in Tonga. In this regard, Mr Atuaki’s brother, who presently lives in Australia undertaking seasonal work and who is shortly to return to Tonga, told the Tribunal that his brother would be able to live at the family home if he returned to that country. The Tribunal finds that this support reduces the extent of any impediments Mr Atuaki may face if removed from Australia to Tonga.

However, the Tribunal accepts that Mr Atuaki will likely face initial impediments in securing economic support, especially in the form of employment and financial assistance, and that this weighs in favour of revocation. However, the weight attributable to this element is moderated because, while Mr Atuaki was sending money to his family in Tonga that he earned from his employment in Australia, he is young and has no known health issues. For the avoidance of doubt, at present, Mr Atuaki does not require any medical support. Mr Atuaki told the Tribunal that he has previously undertaken fishing in Tonga to support his family. In addition, Mr Kelepi Atuaki gave evidence that his brother had worked as a security guard in Tonga at various office buildings, including a hospital. Despite this, the Tribunal accepts that there would be a period of adjustment for Mr Atuaki if removed from Australia and returned to Tonga and that he will likely experience some initial difficulties in establishing himself in that country, including in relation to employment and economic support. As a result, the Tribunal accepts that the prospects of Mr Atuaki securing paid employment in the short term are potentially slim due to his criminal offending in Australia and the stated employment prospects in Tonga, noting that Mr Atuaki had described these as ‘not the best’.[54]
[54] Ibid., page 72.
Accordingly, the Tribunal finds that the aforementioned factors in relation to the impediments Mr Atuaki is likely to face if removed to Tonga weigh in favour of revocation of the cancellation decision. However, the Tribunal is satisfied that, as a citizen, Mr Atuaki would enjoy the same rights and support available to other citizens of Tonga and would therefore be able to establish himself and maintain basic living standards in the context of what is generally available to other citizens. As a result, the Tribunal finds that these matters weigh marginally in favour of non-revocation.
The Tribunal is satisfied that, if removed from Australia, and despite some likely initial difficulties, Mr Atuaki would be able to establish himself and maintain basic living standards in Tonga, in the context of what is generally available to other citizens of that country. The Tribunal again notes that Mr Atuaki would have no language or cultural barriers to overcome if he returned to Tonga and there was no evidence that he could not access any social, medical and economic support required in Tonga that is generally available to other citizens.
Having regard to the totality of the evidence and the various factors involved in this consideration, the Tribunal finds that the extent of impediments if removed weighs in Mr Atuaki’s favour. However, for the reasons set out above, the Tribunal finds that minimal weight is attributable under this other consideration in favour of revocation of the cancellation decision.
Impact on victims
Paragraph 9.3 of Direction 99 relevantly states that decision-makers must consider the impact of the section 501CA decision 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 information in this regard is available. In the absence of any evidence in relation to this other consideration, the Tribunal finds that it is inapplicable in this proceeding. Accordingly, the Tribunal gives this other consideration no weight in its decision.
Impact on Australian business interests
Paragraph 9.4 of Direction 99 provides that:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal again notes that there was evidence of Mr Atuaki having been employed during the approximately 14 months he lived in the Australian community. However, paragraph 9.4 of Direction 99 relevantly states that an employment link would generally only be given weight where the decision under section 501CA of the Act would significantly compromise the delivery of a major project or delivery of an important service in Australia. There was no evidence before the Tribunal that the decision would have any such impact, or any impact at all, and Mr Atuaki made no such submission. Accordingly, the Tribunal finds that this other consideration is not relevant and is given no weight in its decision.
Economic support for family, including minor children, in Tonga
The Tribunal again notes that Primary Consideration 4, the best interests of minor children in Australia, is inapplicable in this proceeding because Mr Atuaki’s three minor children all live in Tonga.
However, as stated above in these reasons, for completeness, the Tribunal here considers Mr Atuaki’s submission that he wishes to remain in Australia to work in order to provide economic support to his family in Tonga, including his three minor children aged four, seven and eight.[55] In this regard, Mr Atuaki’s Personal Circumstances Form enclosed with his request for revocation of the original decision stated that he sent money back to his family to support with food, clothes and the children’s schooling.[56] He described the impact of a negative outcome on these minor children as being that he could not support them financially.[57] As previously noted in these reasons, Mr Atuaki’s three children live with their mother, whom he described as his girlfriend, in Tonga. Mr Atuaki gave evidence that, when working in Australia, he sent $500 each week to his family in Tonga. However, Mr Atuaki also said that there were weeks when he sent no money to his family.
[55] Ibid., page 60.
[56] Ibid., page 61.
[57] Ibid.
Mr Atuaki also submitted in his request for revocation of the cancellation decision that ‘the work is not the best’ in Tonga.[58] He told the Tribunal that when he lived in Tonga he had fished to support his family. However, Mr Kelepi Atuaki gave evidence that his brother had worked as a security guard at a hospital and office buildings in Tonga. He has also worked in farm meat and as a concreter while in Australia. Therefore, and in accordance with the Tribunal’s above findings regarding the extent of impediments if removed from Australia, the Tribunal accepts that there would be a period of adjustment for Mr Atuaki if he returned to Tonga and that he will likely experience some initial difficulties in establishing himself in that country, especially in relation to employment and therefore being in a position to economically support his family, including his three minor children living in Tonga.
[58] Ibid., page 72.
To this end, the Tribunal accepts that the prospects of Mr Atuaki securing paid employment in the short term are potentially slim due to his criminal record and the stated employment prospects in Tonga. However, Mr Atuaki is young, has no known health issues and has previously worked in a number of industries, which factors are likely to enable him to again be employed in Tonga in order to provide economic support to his family.
Additionally, if Mr Atuaki returned to Tonga, he would be able to resume direct contact with his three children, rather than being in Australia and away from his immediate family, and to provide emotional support to them in person in Tonga. For approximately two years, Mr Atuaki’s brother has been working in Australia as a seasonal worker to support the family in Tonga and, the Tribunal finds, this support would extend to Mr Atuaki, noting also that Mr Kelepi Atuaki plans to return to Australia for work after a three month period in Tonga commencing in June this year.
Having regard to all of these matters, the Tribunal finds that this other consideration weighs marginally in favour of Mr Atuaki and revocation of the mandatory cancellation decision.
CONCLUSION
The Tribunal has found that Mr Atuaki does not pass the ‘character test’ as defined in subsection 501(6) of the Act because of his ‘substantial criminal record’. Following this finding, the issue for determination by the Tribunal was whether there was ‘another reason’ why the original decision to cancel Mr Atuaki’s Visa should be revoked. This required a consideration of Direction 99. The Tribunal has found that there is not another reason why the original decision should be revoked.
The Tribunal is satisfied, based on its assessment of all considerations, that the relevant ‘other’ consideration, and the additional other consideration raised on the evidence before the Tribunal, together with Primary Consideration 3, regarding the strength, nature and duration of ties to Australia, which all weigh in favour of revocation, do not outweigh the two remaining relevant primary considerations, being the protection of the Australian community and the expectations of the Australian community, which both weigh heavily against revocation of the cancellation decision. The Tribunal again notes that, pursuant to paragraph 7(2) of Direction 99, primary considerations should generally be given greater weight than other considerations. In this regard, the Tribunal has found that Primary Consideration 1 and Primary Consideration 5 outweigh those considerations in favour of Mr Atuaki and revocation of the decision to cancel his Visa. Accordingly, Mr Atuaki’s application before the Tribunal is unsuccessful and his Visa remains cancelled.
DECISION
Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review not to revoke the mandatory cancellation of the Applicant’s visa under subsection 501(3A) of the Act.

I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

...[SGD].....................................................................
Associate
Dated: 9 April 2024

Date(s) of hearing:

Date final submissions received:

21 and 26 March 2024

7 March 2024

Applicant:
By MS Teams

Solicitor for Respondent: Mr Tom Goodwin, Australian Government Solicitor

[2024] AATA 625

9 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice