Finau and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1070
•23 July 2025
Finau and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1070 (23 July 2025)
Applicant/s: Palatoni Pladnium Finau
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3397
Tribunal:Senior Member K Raif
Place:Sydney
Date:23 July 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that discretion should not be exercised to refuse to grant the visa to the Applicant.
Statement made on 23 July 2025 at 10:51am
Catchwords
PARTNER VISA – refusal to grant a Partner visa – Applicant did not satisfy the character test – Ministerial Direction No. 110 applied – whether Tribunal should exercise discretion to refuse to grant the Partner visa – decision under review set aside.
Legislation
Migration Act 1958 (Cth)
Cases
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Afu v Minister for Home Affairs [2018] FCA 1311
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
FYBR v Minister for Home Affairs [2019] FCA 500Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION
This is an application for review of a decision of the delegate of the Minister for Immigration and Citizenship (the Respondent) made on 30 April 2025 to refuse to grant a Partner (Temporary) Class UK and Partner (Residence) Class BS visas to the Applicant.
The Applicant was born in November 1988 and is a national of Tonga. He entered Australia in December 2017. The Applicant was convicted of several offences and in 2022 he was convicted of an offence for which he was sentenced to an Intensive Corrections Order.
In May 2023 the Applicant made the application for the Partner visa on the basis of his relationship with an Australian citizen, Ms Latu. In January 2025 the delegate issued the Notice of Intention to Consider Refusal. The delegate decided to refuse to grant the visa to the Applicant as the delegate determined that the Applicant did not pass the character test and that the discretion should be exercised to refuse to grant the visa. The Applicant seeks review of the delegate’s decision.
The Applicant appeared before the Tribunal on 21 and 22 July 2025. The Tribunal received oral evidence from the Applicant’s partner. The Applicant was represented on review.
The issues before the Tribunal are:
(a)whether the visa Applicant passes the character test as required by section 501 of the Act and, if not
(b)whether the Tribunal should exercise its discretion to refuse to grant the visa to the Applicant.
For the reasons that follow, the Tribunal has decided that the decision under review should be set aside and that discretion should not be exercised to refuse the visa to the Applicant.
LEGISLATIVE FRAMEWORK
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7))
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
Should the Applicant not satisfy the character test, the discretion to refuse the visa under subsection 501(1) of the Act is enlivened.
In June Direction No. 110 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) came into effect. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task. The principles set out at paragraph 5.2 of Direction 110 state that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian government. Further, at Paragraph 5.3(3) the Direction provides that:
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.
The primary considerations which are set out in clause 8 of Direction 110 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 110:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
Paragraph 7(2) of Direction 110 states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant’s offending is summarised in the delegate’s decision and various submissions. The Tribunal has also been provided with the Criminal Intelligence Commission Report dated 7 April 2025 which indicates that the Applicant had been convicted of the following offences:
25/02/22
· Enter building / land with intent to commit indictable offence
· Assault occasioning actual bodily harm
Imprisonment 4 months 3 weeks
Intensive corrections order 18 months
08/03/21
· Destroy or damage property <= $2000 (DV)
Community correction order 6 months
The Police Certificate dated 7 July 2023 indicates that the Applicant was also due to appear in court in June 2023 for the offence of stalking/intimidate intend fear physical etc harm (domestic). The Applicant told the Tribunal that this charge was dismissed as the victim did not attend court.
The Applicant has been issued with multiple AVOs. He also concedes that he provided incorrect answers on the immigration forms when he failed to disclose his convictions although he states that it was another relative who completed the forms.
In his evidence to the Tribunal the Applicant concedes that he has a substantial criminal record and that he does not past the character test. The Tribunal finds that in February 2022 the Applicant has been convicted of an offence and sentenced to an Intensive Corrections Order (ICO) for 18 months. The Department of Communities and Justice website[1] confirms that an ICO is a custodial sentence that the court decides can be served in the community. The Tribunal thus finds that the Applicant has been sentenced to a term of imprisonment exceeding 12 months. The Tribunal finds that the Applicant has a substantial criminal record as defined in s. 501(7)(c) and that he does not pass the character test.
[1] Intensive Correction Orders.
CONSIDERATION OF DISCRETION
When applying for review, the Applicant stated that the delegate failed to give appropriate weight to the evidence demonstrating his strong ties to Australia and disproportionately prioritised his past offending without balancing mitigating circumstances.
The Applicant concedes that he does not pass the character test but submits that the character test is not concerned solely with a conviction but requires a contextual analysis of the underlying conduct, its nature and seriousness and the frequency of offending. He states that the offending occurred during a time of personal trauma, emotional instability and intoxication, was isolated in nature and was not part of a recurrent pattern. (The Tribunal does not accept that the offending was an isolated incident, given that the Applicant had been convicted of multiple offences involving family violence or other violence or threats of violence and was also the subject of AVOs. The fact that the Applicant may have been emotionally unstable or intoxicated does not excuse, in the Tribunal’s view, his conduct.)
The Applicant submits that he does not pose an unacceptable risk of harm and has undertaken genuine and meaningful steps towards rehabilitation, has shown remorse and insight.
The Respondent submits that the Applicant does not pass the character test and submits that the Tribunal should exercise its discretion to refuse to grant the visa.
Protection of the Australian Community
Paragraph 8.1 of Direction 110 provides in part as follows:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… 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 the Applicant’s conduct to date
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
In considering the nature and seriousness of the Applicant’s conduct to date, the Tribunal has had regard to the circumstances of his offending as set out in the sentencing remarks, police fact sheets and other materials.
The Tribunal has been provided with the NSW Police Facts Sheet in relation to the 2021 destroy/damage property offending. The victim has been identified as the Applicant’s partner who has been in a domestic relationship with the Applicant for about two years. It is reported that in January 2021 the Applicant and the victim were at the victim’s home and the Applicant had consumed some alcohol. The Applicant asked for car keys, which the victim refused to give to him. The Applicant became angry and agitated and the two engaged in verbal argument. The Applicant used ‘an array of profanities’ and the victim became fearful and hid in the bedroom with her daughter. They heard a loud bang and later observed a hole in the plasterboard which appeared to have been caused by the Applicant hitting the wall (the victim referred to the history of the Applicant damaging walls in the past). The victim locked the front door and the Applicant attempted to enter and continued to yell and bang on the front door. The police were called.
In his SFIC the Applicant states that he had consumed several beers at home and wanted to drive but his partner refused to provide him with the keys. The Applicant states that he became agitated and aggressive leading to a verbal argument. The Applicant states that he was intoxicated and not thinking rationally and “in a moment of emotional outburst” he punched a wall causing damage. He walked outside and when he was refused entry, he attempted to regain entry to retrieve the car keys. As his partner had contacted the police, he was taken into custody and was served with the ADVO. The Applicant states that he is deeply remorseful and ashamed of his actions and states that he never intended to cause harm to his partner or daughter, although his behaviour resulted in fear and emotional harm.
The Tribunal has had regard to the NSW Police Facts sheet in relation to convictions for the assault and ‘enter building with intent to commit indictable offence’. The victim of these offences is identified as the partner of the Applicant’s mother, it is stated that the Applicant does not agree with his mother’s relationship and has difficulties in accepting it. It is stated that on a night in February 2022 the Applicant drove to his mother’s home and gained access. He walked to the victim’s bedroom and without any warning, began to assault the victim as he lay asleep. He struck the victim with the glass beer bottle with such force that the bottle shattered. The Applicant then began to repetitively kick and punch the victim who was defenceless. During the assault the Applicant picked up the computer chair and threw it at the victim, striking him at the side of his head and shoulder. As the Applicant was being restrained, he threatened the victim ‘I’m gonna kill you’. And ‘I’m gonna get a gun and kill him’. When the police arrived, the Applicant was found to be severely affected by alcohol.
In his submission to the delegate the Applicant states that the incident happened at his aunt’s house. The Applicant states that he was disappointed because his mother left his two young brothers at the aunt’s house and they needed their mother. The Applicant states that his mother left six of her children in Tonga and brought two youngest brothers to Australia and he was emotionally and psychologically disappointed. The Applicant states that he went to his aunt’s house to talk to his mother and found a man, who used to be a friend, sleeping with her. The Applicant states that he was intoxicated and not thinking clearly. The Applicant states that he now accepts this man as his stepfather. He states that his aunt has never asked for the money for the damage and he does not have an AVO issued against him as all past AVOs were withdrawn. The Applicant states that each time he behaved ‘dysfunctionally’ he was intoxicated but he has stopped taking alcohol before his detention.
In his SFIC the Applicant states that he has had an emotionally strained relationship with his mother as he had a sense of abandonment as a child. The Applicant states that he went to his aunt’s house to confront his mother and discovered his mother in bed with a former friend, Mr Lemeki which triggered an intense emotional response exacerbated by his intoxication. The Applicant states that in a state of anger and impaired judgment, he struck Mr Lemeki and continued the assault.
The Tribunal has been provided with the NSW Police Facts Sheet in relation to the ‘stalk/intimidate’ charges. The victim is identified as the sister of the Applicant’s partner. It is stated that in March 2023 the Applicant and victim were attending a family celebration and consuming alcohol. The Applicant became verbally aggressive with a friend of the victim. As most of the guests left the house, the victim reprimanded the Applicant for his behaviour during the party and a verbal argument commenced. During the argument the Applicant is reported to have stated ‘I’ll fucking shoot you and your family’ before launching himself towards the victim.
In his submission to the delegate the Applicant explained that the incident happened at a family gathering where he and the victim (his sister-in-law) were both intoxicated and had a ‘communication breakdown and misunderstanding’. The Applicant states that he was not violent and he has apologised to the victim and they are on good terms. The victim is now one of the witnesses to support his visa application.
In his SFIC the Applicant also states that he attended a family gathering and consumed alcohol. There was a verbal dispute with his sister-in-law and the Applicant made inappropriate and hurtful remarks. The police were called and he was charged with stalk/intimidate with intention to cause harm. (The evidence indicates that the 2023 charges were ultimately dismissed but the applicant seems to concede that the events had taken place as described.) The Applicant states that he accepts full responsibility for his conduct and expressed sincere remorse.
The Applicant told the Tribunal that by the time of that incident he has stopped drinking and he claims that it was his sister-in-law who had consumed alcohol and was intoxicated but not him. That claim seems to contradict his written evidence when he referred in various submissions to being intoxicated.
The Tribunal finds that the Applicant’s offending involved violence or threats of violence and intimidation towards others. His conduct was capable of causing physical and psychological harm, fear and apprehension for the victims. The Tribunal finds that the Applicant’s offending had been serious.
The Applicant also acknowledges in his SFIC that he did not disclose criminal convictions in his visa application. He submits it was not a deliberate attempt to mislead but a genuine error made by his aunt who had filled in his visa applications.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that 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 of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that 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;
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
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in the offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
The nature of harm, should the Applicant reoffend
The Applicant had committed family violence offending and the offence against his partner was committed in the presence of the victim’s child. Ms Latu’s written evidence is that she was fearful at the time, although she told the Tribunal she was never fearful of the Applicant. The other offending involved unprovoked violence towards his mother’s partner, which resulted in physical injuries and threats made towards others. The Tribunal finds that the harm that may be caused to others, should the Applicant commit similar offences, could be significant, including serious physical and psychological injury to the victims.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Tribunal has considered information and evidence on the risk of re-offending and evidence of rehabilitation achieved by the Applicant.
Submissions to the delegate
In his submission to the delegate the Applicant states that his past behaviour was caused by alcohol and he stopped consuming alcohol before his detention. The Applicant states that he is a ‘changed man’ and loves his partner and daughter. The Applicant stated that Reverend Ahisivi is conducting a rehabilitation program but has had difficulties accessing VIDC.
The Applicant provided a number of supporting statements and character references. These include:
(a)a declaration from his partner Netina Latu dated 19 August 2024. Ms Latu states that the Applicant has learned from his mistakes and he has changed and is willing to work to support his family and help community and the society.
(b)a statement from his mother Asinate Finau who refers to the genuine relationship between the Applicant and Ms Latu and states that the family has ‘grounded’ the Applicant and he may be lost if removed from them.
(c)a character reference from Ivona Latu who refers to the Applicant’s ‘unfortunate incident / circumstance’ but states that he has truly rehabilitated and has genuine remorse.
(d)a statement from Taniela Lemeki (the partner of the Applicant’s mother) who states that he has forgiven the Applicant and is not scared of him. He states that he believes the Applicant has learned his lesson not to interfere in his mother’s business.
(e)Ms Latu’s sister Tolini Latu provided a statement indicating that the Applicant has ‘demonstrated strong moral character’ and provides for the family, has learned from his past and he is a positive influence on others.
(f)A statement from Victor Latu, the father of Ms Latu, who states that Ms Latu’s daughter S. considers the Applicant as her real father as he has been a ‘pillar of support’. Mr Latu states that although the Applicant has made mistakes, he has faith in him that the Applicant has learned from these.
(g)A statement from Lise Kei, the aunt of the Applicant, who refers to the Applicant’s helpfulness to others, his charity work, and contribution to society. Ms Kei states that the Applicant has learned from his mistakes and is more mature now.
(h)A statement from Mele Vakameilalo, the mother of the Applicant, who refers to the Applicant’s upbringing and past employment and his relationship with his partner. She states that her partner and the Applicant are now good friends. Ms Vakameilalo states that the Applicant had been affected by the deaths of his siblings. She states that he is not a danger to the community, loves his daughter and looks after his partner.
(i)A statement from Taunaola Kei, a cousin of the Applicant who states that the Applicant has demonstrated qualities of trustworthiness, responsibility and education.
There are also a number of statements to evidence the Applicant’s relationship with his partner.
Summary of written evidence to the Tribunal
In his SFIC the Applicant states that he does not pose an unacceptable risk and has taken genuine steps toward rehabilitation. The Applicant refers to his participation in an alcohol management program and anger regulation programs while in detention and the spiritual guidance through regular engagement in pastoral care, as well as his involvement in church-based rehabilitation initiatives. The Applicant submits that these programs have addressed the root causes of his offending such as unresolved trauma, grief and alcohol misuse. The Applicant states that he has shown sustained remorse, insight and behaviour change. He has maintained supportive relationships, pointing to a significant reduction in the risk of reoffending. The Applicant states that he has been in detention since 2023 and has maintained exemplary behaviour.
The Applicant refers to the completion of several courses relating to drug and alcohol abuse, addiction, family violence awareness and anger management techniques.
The Applicant refers to character references and statements of support from his victims. The Applicant provided to the Tribunal a further statement from Ms Netina Latu dated 23 June 2025 in which she refers to the genuine remorse by the Applicant and states that he is not the same now, being mature, humble and committed to his family. Ms Latu states that the Applicant is not a threat to the community and is a ‘changed man’.
The Applicant provided his own declaration dated 23 June 2025 expressing remorse for his past conduct. The Applicant refers to his relationship with his partner and daughter. The Applicant outlined the circumstances of his offending and refers to his steps towards rehabilitation. In his submission of 14 July 2025 the Applicant states that he has demonstrated genuine and sustained rehabilitation, has participated in community support groups and completed targeted programs including domestic violence awareness, anger management and A&D abuse awareness, and has deepened his faith. The Applicant submits he has abstained from alcohol for over three years and has resolved to maintain permanent abstinence. The Applicant refers to the psychological assessment (summarised below) and states that the findings of the psychological support a finding that he presents a low risk of recidivism.
The Applicant submits that his offending occurred in the context of acute intoxication and his rehabilitation and insight differentiate him from offenders who deny responsibility or continue harmful patterns. The Applicant states that his offending involved isolated events linked to alcohol misuse without a pattern of persistent violence and the likelihood of further offending is minimal, given his abstinence.
The Applicant has provided to the Tribunal a copy of a report by Mr Dormand of New Vision Psychology, dated 10 July 2025. The report indicates that the Applicant is experiencing normal levels of depression, anxiety and stress and scored 0 on all measures of Alcohol, Smoking and Substance Involvement Screening test with the exception of alcohol for which he scored 3, placing him in the ‘low risk’ category for all substances. This category does not require intervention or treatment. The Respondent submits that the assessment is based on the Applicant’s recent abstinence from alcohol use but that was due to the applicant’s detention and may not be the case when he is in the community. The Respondent submits that the results of the assessment should be given little or no weight.
Mr Dormand states that the Applicant has reported a high degree of remorse and regret and has taken responsibility for his actions. The report refers to Mr Finau outlining the steps to ensure the incidents do not occur again (abstinence from alcohol, commitment to employment and community contribution, completion of courses, joining a support group, attending religious services and apologising to the victims).
Mr Dormand states that the Applicant’s mental health is not currently an impairment to his decision-making capacity but is mitigated by his decision and ability to cease drinking. Mr Dorman notes that the Applicant has been able to achieve total abstinence while detained and away from the normal stressors of everyday life and recommends that if the Applicant is released from detention, supports are put in place to ensure the Applicant’s abstinence from alcohol continues. Mr Dormand refers to the Applicant’s participation in AI meetings and church involvement. The Respondent notes that the psychologist has not identified whether the Applicant is likely to comply with the recommendations and there is no identified basis for the conclusion that the Applicant will engage with supports. The Respondent submits that Mr Dormand’s report should be given limited weight.
Summary of oral evidence before the Tribunal
The Applicant told the Tribunal that he has learnt valuable lessons while being ‘inside’ and has learned from his mistakes. The Applicant states that he has completed drugs and alcohol and anger management courses and he spoke about the learnings from these courses. The Applicant states that he no longer thinks about consuming alcohol and would not consume alcohol if released from detention. The Applicant also refers to his faith as a protective factor.
The Respondent submits that the Applicant’s evidence about the rehabilitation achieved has been vague and there is no independent confirmation of rehabilitation achieved.
Ms Latu spoke about a positive relationship with the Applicant and she told the Tribunal that she was never fearful of him, even during the 2021 incident when she states she merely wanted to be away from him. Ms Latu referred to the couple’s joint activities and the Applicant’s attempts at rehabilitation prior to his detention, stating that he was previously reluctant to seek help from others but that is no longer the case. Ms Latu spoke about the Applicant’s progress at rehabilitation since his detention. Ms Latu states that she does not believe the Applicant would reoffend or that he would start drinking again, stating that he would not wish to ‘come back to the hardships’.
The Respondent questioned the Applicant’s motivation for taking rehabilitative courses, noting that the Applicant started his engagement in the courses after the NOIR was issued to him. The Applicant denied he engaged in courses in response to the visa issues but claims he was encouraged to attend by the VIDC staff and did not know about the intention to refuse his visa. In the Tribunal’s view, the more significant factor is the skills that the Applicant may have acquired as a result of these courses, and rehabilitation achieved, rather than the Applicant’s motivation in engaging in these programs. That is, the Applicant may have achieved meaningful rehabilitation even if he did engage in courses to avoid the refusal of his visa.
The Respondent also questioned the couple’s motivation in lodging the visa application at the time when the Applicant was facing visa issues. Both the Applicant and Ms Latu explained that they planned to register marriage first before applying for the visa and Ms Latu also mentioned that they did not have sufficient funds for the visa application. The Tribunal does not consider that the Applicant’s motivation in making the visa application is relevant to the issues that arise on this review and, for the purpose of the present proceedings, the Tribunal accepts that the Applicant and Ms Latu are in a genuine relationship.
Tribunal’s determination
The Applicant’s evidence is that his offending was due to intoxication and he claims he has not consumed alcohol for a number of years and does not intend to resume. As noted above, the Applicant’s evidence on that issue is somewhat contradictory as his written evidence (for example, his own declarations and SOFIC) indicates that the 2023 incident occurred when both he and the victim were intoxicated while his oral evidence is that he has stopped consuming alcohol before the 2023 incident as he was on probation and did not wish to reoffend. The Tribunal is concerned that the Applicant has been untruthful in his oral evidence when he claimed to have been abstinent before 2023 and he appears to have sought to minimise his involvement with alcohol since that time.
As the Applicant’s offending seems to have been fuelled by intoxication, the Tribunal is of the view that there remains a risk of reoffending if the Applicant continues with alcohol consumption but that risk is low if the Applicant abstains from alcohol use. The Tribunal is not completely convinced by the Applicant’s evidence that he has acquired the tools necessary for abstinence as a result of course completion (the Applicant’s oral evidence about the skills he acquired in these courses was somewhat vague and uninformative). Neither is the Tribunal convinced that the Applicant’s family, faith and church attendance will necessarily prevent further offending, noting that these factors did not prevent past offending. The Tribunal also accepts that alcohol is not (or is not as readily) available in detention as it is in the community and the Applicant will have greater access to alcohol in the future. In the Tribunal’s view, if the Applicant were to consume alcohol, there is a real likelihood that he will reoffend.
The Tribunal is mindful that Mr Dormand in his assessment refers to the need for ongoing supports if the Applicant is released into the community. There is little evidence before the Tribunal about the arrangements being in place for such supports, other than the Applicant’s claim that he will continue with the church attendance and Ms Latu’s offer of support.
The evidence indicates that the Applicant has not been consuming alcohol for some time (whether it was from the time of his detention in 2023 or prior to that time). He claims he has no desire to resume alcohol intake. The Respondent submits that the Applicant had been consuming alcohol until the time of his detention and his abstinence since that time is due to him being in a controlled environment. The Tribunal accepts that the Applicant’s ability to abstain has been tested in the community to a very limited extent as his evidence to the Tribunal is that prior to his 2023 detention he was subject to a good behaviour bond which he did not wish to breach. There will be no such concerns in the future.
The Tribunal is of the view that the risk of reoffending remains because there is insufficient evidence to satisfy the Tribunal that the Applicant will not resume the consumption of alcohol and there is insufficient evidence that the Applicant has put in place appropriate arrangements and supports to abstain from alcohol use. In the Tribunal’s view, if he does consume alcohol, there is a real likelihood that the Applicant will commit further offending.
The Tribunal finds that this consideration weighs in favour of exercising discretion to refuse to grant the visa.
Whether the conduct engaged in constituted family violence
Paragraph 8.2(3) of the Direction provides:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen
The Applicant had been convicted of family violent offending in relation to the 2021 incident when he damaged property. It is notable that the offending occurred in the presence of the victim’s child.
The Applicant submits that this incident was at the lower end of the spectrum of seriousness and involved a verbal altercation and damage to property in the context of intoxication and emotional distress but no physical violence. It was not part of an ongoing pattern, nor of a sustained campaign of violence or coercive control and the conduct has not been repeated. The Applicant refers to his genuine remorse and taking steps to ensure the conduct would not be repeated. The Applicant states that while this offence ‘technically’ constitutes family violence, it did not involve physical harm to his partner or child.
The Tribunal accepts that the family violence conduct did not involve physical harm to his partner or child and was not at the serious end of the spectrum. Nevertheless, the Tribunal finds that the Applicant had committed a family violence offence. This is, and is considered to be, serious offending. The Tribunal finds that this consideration weighs against visa grant but, given the circumstances of the offending (being at the lower end of the spectrum), the Tribunal gives this moderate weight against visa grant.
The strength, nature, and duration of ties to Australia
Paragraph 8.3.1 of the Direction provides:
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.
Subparagraph (2) directs the decision-maker to consider the strength, nature and duration of any ties that the non-citizen has to the Australian community and to have regard to the length of the person’s residence in Australia and the strength, duration and nature of any family or social links with Australian citizens or permanent residents.
The Applicant has been living in Australia since 2018, for a period of approximately seven years. In the Tribunal’s view, that is not a very lengthy period. The Applicant’s immediate family, including his mother, stepfather, siblings, partner and stepchild, aunts, cousins, live in Australia and are Australian citizens or permanent residents.
The Applicant’s partner Ms Latu provided a statement to the delegate referring to her own poor health (she provided to the delegate a number of medical records) and inability to the emotional and financial repercussions of her illness. Evidence indicates that she suffers from kidney failure and attends dialysis three times a week. Ms Latu states that she cannot work and provide for the family. She states that her daughter has autism. Ms Latu states that when they lived together the Applicant helped her with everything, including house-duties, taking the child to and from school and supporting the child.
Ms Latu prepared a further statement dated 23 June 2025 in which she outlines her relationship with the Applicant and the effect of being separated from him due to his imprisonment and detention. Ms Latu refers to her health issues and the special needs of her daughter S, stating that the Applicant is the only father she has known. Ms Latu states that the Applicant has changed, is now mature and committed to his family, has daily contact with S. Ms Latu states that the Applicant is not a threat to the Australian community.
The Applicant states in his own submission that Ms Latu had experienced financial stress as a result of his detention and inability to work and provide for the family. The Applicant states that if he is removed from Australia, it is likely that his partner and child will not be able to travel to Tonga to visit him. The Applicant states that his partner struggles financially and emotionally due to his absence and in addition to her medical condition, this has an adverse impact on her ability to fulfil a parental role.
In oral evidence Ms Latu spoke about the supports that the Applicant had provided to her and her daughter and the hardship in dealing with her own health and looking after her daughter on her own. She spoke about the close bond between the Applicant and her daughter and the effect on her daughter of the Applicant not being present.
The Applicant’s evidence to the Tribunal is that if he is required to leave Australia, Ms Latu and the daughter would accompany him and Ms Latu would not be able to access dialysis that she requires while Ms Latu’s evidence is that she might not travel to Tonga due to lack of appropriate health care. The Tribunal accepts that the decision to refuse the visa to the Applicant, which may lead to the Applicant’s removal from Australia, may have a significantly adverse impact on the Applicant’s partner and child. If Ms Latu and her daughter travel to Tonga, they may not have access to adequate health care as they both require specialised care. If Ms Latu and S remain in Australia, this would lead to their separation from the Applicant and the Tribunal accepts that they rely on the Applicant in various ways, including practically, emotionally and financially.
The Tribunal considers there would be significant impact on family members if the Applicant’s visa is not granted. The Tribunal considers that the severity of this impact would be significantly exacerbated in the circumstances of this case, by the health conditions of Ms Latu and S. and by their reliance on the Applicant for financial, practical and emotional support, as well as Ms Latu’s need for ongoing treatment.
The Tribunal gives this consideration significant weight against using discretion to refuse to grant the visa.
The best interests of minor child in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.5(4) sets out the factors that must be considered when considering the best interests of the child. These include
(a)The nature and duration of the relationship between the child and the non-citizen
(b)The extent to which the non-citizen is likely to play a positive parental role in the future
(c)The impact of the non-citizen’s prior conduct, and likely to future conduct
(d)The likely effect that any separation from the non-citizen would have on the child
(e)Whether any other person already fulfils a parental role
(f)Any known views of the child
(g)Evidence that the child has been, or is at risk of being subject to or exposed to family violence
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct
The Applicant does not have children of his own. In his submission to the delegate the Applicant refers to his close relationship with his stepdaughter S. who is 11 years old. In his evidence to the Tribunal the Applicant states that S’s father has abandoned her and has not been present in her life and he has been a father figure to the child, who shares a close and enduring bond with him. The Applicant states that the child has been diagnosed with intellectual disability and has special educational needs and the Applicant provides emotional and psychological stability to the child. The Applicant submits that his absence has impacted S’s mental health and well-being.
S’s mother, Ms Latu provided declarations to the delegate and the Tribunal confirming the Applicant’s evidence above. Ms Latu states that that the child has been affected since the Applicant’s detention as he has been there for her since she was four years old, and he is the only father she has known. In her declaration to the Tribunal Ms Latu refers to the Applicant’s daily contact with S during his detention and the emotional support the Applicant has provided to the child. In oral evidence the Applicant described his close relationship with S and her reliance on him. Ms Latu also spoke about the strong bond between the Applicant and S and the hardship that S has experienced, including concerns raised by her school, as a result of her separation with the Applicant. In oral evidence the Applicant confirmed that S attends a special school and receives additional support such as behavioural therapy and other therapies and the Applicant told the Tribunal that there are no support services or special schools in Tonga.
The Applicant also refers to Ms Latu experiencing financial hardship as a result of his detention and the Tribunal accepts that this may also impact the child.
The Tribunal accepts that the Applicant has a long-term relationship of parental nature with S which has been in existence since the child was about 4 or 5. The Tribunal accepts that S. treats the Applicant as her father and that there is no other person who plays a paternal role. In particular, the Tribunal acknowledges that Ms Latu, as well as S, have a number of health issues as a result of which they require substantial practical and other support which had previously been provided by the Applicant (such as driving to and from school and to medical appointments, support with activities of daily living and financial support). The Tribunal accepts the evidence of Ms Latu that the child has been affected by the Applicant’s absence. The Tribunal also accepts that the child requires special supports (which she receives in Australia as she is eligible for NDIS) and the Applicant’s evidence that such supports are unlikely to be available in Tonga, should the family relocate there. (The Tribunal is mindful of Ms Latu’s evidence that she and S would not accompany the Applicant to Tonga).
The Tribunal accepts that it is in the best interest of S to maintain a relationship with the Applicant and for the Applicant to remain in Australia to provide the child with the practical, emotional and financial support. In the Tribunal’s view, that is predicated upon the Applicant not committing any family violence in the presence of the child because it may be damaging to the child to witness such violence perpetrated against her mother.
The Tribunal finds that this consideration weighs heavily against the exercise of discretion to refuse to grant the visa.
Expectations of the Australian community
Sub-clause 8.5 of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
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.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[2] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[3]
[2] [2019] FCAFC 185 (‘FYBR’).
[3] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
In Ismail,[4] the High Court said (regarding the same primary consideration as it appeared at paragraph 8.4 in the former Direction 90):
Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the Applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case.
Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the Applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)- (3) are the relevant norm described as the expectations of the Australian community...
[4] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [51]-[52].
The Applicant has committed multiple offences, including family violence offending. Given the nature of the Applicant’s offending and the potential harm to others caused by any repeat of such conduct, the Tribunal is of the view that the community expectations weigh in favour of exercising the discretion to refuse the grant of the visa.
Other Considerations
It is necessary to look at the other considerations listed in section 9 of the Direction.
Legal consequence of the decision
The legislative provisions relevant to this case have been considered by the Tribunal elsewhere and are adopted here from earlier decisions.
Paragraph 9.1.1(2) of the Direction directs a decision-maker to take into account the following:
Section I97C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
The Applicant is not the subject of the protection finding. He has not put forward any claims that are capable of giving rise to Australia’s non-refoulement obligations.
If the application for the Partner visa is refused, the Applicant will effectively be precluded from seeking other visas in Australia and would be detained and removed from Australia as an unlawful non-citizen. The Tribunal finds that this consideration weighs somewhat in favour of the visa grant.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are any substantial language or cultural barriers; and
c) any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 36 years of age. There is no evidence to suggest that the Applicant experiences any significant health issues. The Applicant has lived in his home country for the majority of his life and there would not be language or cultural barriers if he was to return to Tonga. The Applicant would be eligible to receive social, medical and/or economic support that is generally available to citizens in his country.
In his submission of 14 July 2025 the Applicant states that he will suffer significant emotional and psychological damage if removed from Australia as he would face reintegration difficulties in Tonga where he has no family support and limited employment prospects and may experience profound isolation and hardship. The Tribunal finds these submissions to be entirely unsupported by any probative evidence. There is no evidence about the Applicant’s employment prospects and why they would be more limited, given his prior residence in Tonga. The Applicant’s oral evidence to the Tribunal is that his sister lives in Tonga and that he may have agricultural work available to him. The Tribunal does not accept the Applicant’s written claim that he would have limited employment prospects and no family support. The Tribunal is also of the view that the Applicant will be able to receive emotional support from his family even if he does not reside in the same country as his family members in Australia.
The Applicant’s oral evidence was somewhat different to his written claims as he told the Tribunal he has ‘everything in Tonga’ and is in Australia only because of his relationship with Ms Latu. The Applicant told the Tribunal that he can live anywhere and work anywhere in Tonga but he does not want to leave his partner and child behind. The Applicant states that if he has to leave Australia, Ms Latu will come with him but dialysis is not available in Tonga. (Ms Latu told the Tribunal that due to her health issues, she cannot relocate to Tonga.) In light of the Applicant’s oral evidence, the Tribunal does not accept the Applicant’s written claims that he would have limited employment prospects in Tonga and would experience ‘profound isolation and hardship’. The Applicant’s oral evidence suggests that he does not believe that to be the case and that he considers that he would be able to find a place to live and a job in Tonga.
The Tribunal is also mindful that the Applicant has been residing in Australia for a relatively short period of about 7 years. Importantly, he has not held an Australian permanent visa, so there can be no expectation that he would be able to remain in Australia permanently. In such circumstances, the Tribunal is of the view that any impediment of removal, in circumstances where the Applicant has never been granted a permanent or even a long-term Australian visa, should be given very limited weight.
The Tribunal finds that this consideration weighs against exercising discretion to refuse as there will be an impediment to removal due to the Applicant’s separation from his family.
Impact on Australian business interests
Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:
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.’
There is no evidence before the Tribunal to indicate that a decision to refuse to grant the visa to the Applicant would adversely impact Australian business interest or significantly compromise the delivery of a major project or of an important service. This consideration is neutral.
CONCLUSION
The Tribunal has had regard to the factors set out in the Direction and the Applicant’s circumstances. The Tribunal has found that the Applicant had engaged in serious offending, as his offending involved violence or threats of violence towards others and had the potential of causing physical and/or psychological harm to others. The Tribunal has formed the view that, should the Applicant reoffend, this may have detrimental effect on the victims. These factors weigh in favour of exercising the discretion to refuse. As the Tribunal has formed the view that the offending was at the lower spectrum of seriousness, the Tribunal gives these factors less weight than it may have done in other circumstances.
The Tribunal has formed the view that there remains the risk of reoffending, particularly if the Applicant was to resume his alcohol consumption, and that weighs in favour of the discretion to refuse.
The fact that the Applicant had committed family violence offending weighs against the visa grant, as do the community expectations. The Tribunal gives these factors significant weight.
There is little evidence of any significant impediment to the Applicant if he was to be removed – other than separation from his family in Australia – and the Applicant’s oral evidence to the Tribunal does not suggest that there would be other significant impediments to him.
The Tribunal has formed the view that there are strong reasons not to exercise the discretion to refuse the visa grant. Firstly, the Tribunal places weight on the significant impact on the Applicant’s partner, who is reliant on the Applicant for financial, practical and other support. The Tribunal acknowledges the Applicant’s evidence that if he is to leave Australia, his partner and daughter would accompany him and his partner would not be able to access the medical treatment she requires although Ms Latu’s evidence is that she would not travel to Tonga due to her health. That is, the family’s options would be either separation or inadequate healthcare for Ms Latu and the child.
Secondly, the Tribunal places weight on the best interest of the child. The Tribunal accepts the evidence of the close and supportive relationship between the Applicant and S and the adverse effect of separation on the child, particularly in light of S’s serious health issues and special needs.
In the circumstances of the health issues of the Applicant’s partner and stepdaughter, and their reliance and dependence on the Applicant’s support, the Tribunal is of the view that these factors weigh very strongly in favour of the visa grant.
In the particular circumstances of this case, the Tribunal has decided to give the greatest weight to the best interests of the child and the impact of the decision on the Australian family members, in particular the Applicant’s spouse. The Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia and the impact of removal on family members, as well as the best interests of the child, are considerations that weigh in favour of the visa grant and outweigh other considerations.
Having regard to all the circumstances, the Tribunal has decided that the discretion to refuse to grant the visa should not be exercised.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that discretion should not be exercised to refuse to grant the visa to the Applicant
Date(s) of hearing: 21 and 22 July 2025 Solicitors for the Applicant: E. Ibrahim, Jameson Law Solicitors for the Respondent: A. Sharma, HWL Ebsworth
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