Finau and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 2283

Finau and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2283 (28 July 2023)
Division:                  GENERAL DIVISION
File Number:2023/3252
Re:Hafez Phillip Diploma Finau
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Justin Owen
Date:28 July 2023
Place:Sydney

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 4 May 2023 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.......................[SGD]............................
Deputy President Justin Owen
CATCHWORDS
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancellation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 99 – decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Pearson v Minister for Home Affairs [2022] FCAFC 203
Franklin v Minister for Immigration [2023] FCAFC 18
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
SECONDARY MATERIAL
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
Deputy President Justin Owen
28 July 2023
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 4 May 2023, not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the Visa”).
The Applicant is a male New Zealand national born in 1986. At the time of this decision, he is 36 years of age. The Applicant has resided in Australia for 19 years, having arrived in April 2004 as the holder of a TY-444 visa when he his age was 17 years, 11 months.
The Applicant’s criminal history in Australia spans between 2008 and 2022. In 2008 and 2009, he was convicted and fined for public order offences and recklessly cause injury. In 2015, the Applicant was convicted of driving whilst suspended and he was sentenced to an 18-month section 10 bond. In 2019, he was convicted of common assault (DV) and contravene prohibition/restrictions in AVO (Domestic) and received a two-year community correction order on each charge with 40 hours of community service and a fine. In 2020, the Applicant was again convicted of family violence offences and sentenced to community corrections orders of two years on each charge and 85 hours of community service. On the same date, the convictions of 2019 were ‘called up’ and a two-year community corrections order with 40 hours of community service was imposed for each charge. On two occasions in 2020, the Applicant was convicted and fined for drug possession offences. In 2021, the Applicant was convicted of three counts of contravening Apprehended Domestic Violence Orders and sentenced to six, four and one month terms of imprisonment. His previous offences from 2019 and 2020 were also ‘called up’ for resentencing. He was also convicted of handling stolen goods and making a false statement. The Applicant was convicted of further family violence offences on 25 March 2022. The Applicant’s convictions which are the subject of this review are described in more detail below.
The Applicant’s visa was cancelled on 19 May 2022 under section 501(3A) of the Act on the basis that he did not pass the character test. The Applicant was duly notified of the mandatory cancellation decision and was invited to make representations in an effort to revoke that decision. On 4 May 2023, a delegate of the Respondent refused to revoke the mandatory cancellation made on 19 May 2022. There followed an application to the Tribunal on 12 May 2023 wherein the Applicant sought review of the delegate’s refusal to revoke the decision made on 4 May 2023. The Tribunal is satisfied it has jurisdiction to review that decision pursuant to paragraph 500(1)(ba) of the Act.
Paragraph 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction on 25 March 2022 in the Penrith Local Court of New South Wales of the offences: destroy or damage property <=$2000 (DV), contravene prohibition/restriction in AVO (Domestic) (three counts), common assault (DV)-T2, destroy or damage property and stalk/intimidate intend fear physical etc harm (domestic)-T2, for which he was sentenced to an aggregate term of 12 months imprisonment. The Applicant also has a criminal history in Australia that spans 2008 to 2022.
The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to subparagraph 501CA(4)(b)(ii) of the Act.
The hearing was held on 17 July 2023. The hearing received oral evidence from the Applicant.
For the following reasons, pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 4 May 2023 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by subsection 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
As mentioned earlier, the Applicant duly made the representations required by paragraph 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. This requires the Tribunal to address these two issues:
(a)whether the Applicant passes the character test; and, if not,
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
The respondent submitted there was a third issue to be determined given the circumstances of this case. That was whether there is a legally effective decision under section 501(3A) of the Act.
The Tribunal will briefly deal with this matter here. The Respondent noted that on 22 December 2022 the Full Court of the Federal Court published its judgement in Pearson v Minister for Home Affairs [2022] FCAFC 203 where the Court found that an ‘aggregate sentence’ (a single sentence imposed in relation to two or more criminal offences of which a person has been convicted) is not a ‘term of imprisonment of 12 months of more’ for the purposes of subparagraph 501(7)(c) of the Act. Following this decision the Applicant was subsequently released from immigration detention. In the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) and in oral submissions, the Respondent noted that on 16 February 2023 the Aggregate Sentences Act received Royal Assent. Item 4 in Schedule 1 of the Aggregate Sentences Act ‘has the consequence that, notwithstanding that the delegate made the decision to cancel the applicant’s visa by reference to the aggregate sentence, the delegate’s decision is taken for all purposes to be valid and have always been valid: Franklin v Minister for Immigration [2023] FCAFC 18 at [54] (Perram, Burley and Downes JJ). The Respondent submitted that as the Applicant has previously been sentenced to an aggregate term of imprisonment of 12 months, he subsequently has a substantial criminal record and does not pass the character test: section 5AB and paragraphs 501(6)(a) and (7)(c) of the Act.
The Applicant did not make any submissions on this matter. The Tribunal notes the Applicant was in fact taken by Border Force back into detention following the Aggregate Sentences Act receiving Royal Assent. The Tribunal does not consider this to be a particularly controversial issue. The Assent of the Aggregate Sentences Act essentially ensures that the delegate’s decision that the Applicant has a substantial criminal record and does not pass the character test – based on his being sentenced to an aggregate term of 12 months’ imprisonment was in fact a valid and legally effective decision under s 501(3A) of the Act. This was confirmed by the Full Federal Court in Franklin v Minister for Immigration [2023] FCAFC 18.
The Tribunal subsequently finds there was a legally effective decision by the delegate under section 501(3A) of the Act.
Does the Applicant Pass the Character Test?
The character test is defined in section 501(6) of the Act. Relevantly, paragraph 501(6)(a) of the Act states that a person does not pass the character test if the person has a substantial criminal record, as defined in section 501(7) of the Act. Paragraph 501(7)(c) of the Act 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.
The Tribunal has been provided with the report of the Australian Criminal Intelligence Commission dated 23 June 2022 setting out the Applicant’s offending and convictions. Information in the SFIC, which the Tribunal accepts as accurate, indicates that the Applicant has been convicted of a range of offences since 2008. On 25 March 2022 in the Local Court of New South Wales, the Applicant was convicted of destroy or damage property <=$2000, contravene prohibition/restriction in AVO (Domestic) (three counts), common assault (DV)-T2, destroy or damage property and stalk/intimidate intend fear physical etc harm (domestic)-T2, for which he was sentenced to an aggregate term of 12 months imprisonment.
The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) of the Act are not met. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.
Is there another reason why the original decision should be revoked under subsection 501CA(4)?
In considering whether to exercise this discretion, the Tribunal is bound by subsection 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[1] The Direction is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
[1] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90. Direction 90, in turn, was replaced by Direction 99 on 3 March 2023.
The Direction sets out the principles that provides a framework on how decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant or revoke mandatory cancellation decisions. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Section 8 of the Direction sets out five primary considerations (“Primary Considerations”) that the Tribunal must take into account. The Primary Considerations include:
(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.
Section 9 of the Direction sets out five other considerations (“Other Considerations”) which must be taken into account. The Other Considerations are:
a)Legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
The Tribunal notes the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594:
“…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 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 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 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.”
In this case, it is not in dispute that the Applicant has made representations to the delegate about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met.
The Tribunal has had regard to the Applicant’s representations, as well as his submissions and evidence to the delegate. In addition, the Tribunal also has regard to the evidence subsequently provided to the Tribunal by the Applicant and the Respondent.
OUTLINE OF THE EVIDENCE
The Applicant’s early life
The Applicant was born in October 1986. He stated that he was adopted at a young age and moved to the United States where he studied up until 8^th grade in junior high school and played football. When he was 15 years of age he returned to New Zealand when he met his biological mother. The Applicant stated he did not remain long in New Zealand and he then travelled to Tonga. The Applicant arrived in Australia when he was 17 years, 11 months old, on 13 April 2004, to meet his biological father. The Applicant states that he sought employment immediately upon arriving in grape pruning and remained in gainful employment his entire time in Australia in a variety of roles including labouring, construction and as a courier. The Applicant married and had 4 children with his wife. They separated in 2019 and the children now reside in Tonga with their mother. The Applicant’s mother and brother are also in Tonga. He claims good relationships with his older sister especially and other siblings who reside variously in Victoria, Queensland and Sydney, as well as his nieces and nephews. No evidence was provided by the Applicant’s siblings or other family members about their relationship with the Applicant. The only information the Tribunal has about these matters was provided by the Applicant in his handwritten forms completed for the Department, and his oral testimony at the Tribunal’s hearing.
The Applicant’s criminal history
The Applicant has been convicted of around 20 offences since 2008. The date of his first offence, behaving in riotous manner and using threatening words in a public place occurred some three years after his arrival in Australia. There is little detail of this offending. The Tribunal notes there was an almost 7-year gap between his conviction for recklessly cause injury in January 2009 and his next conviction for driving a motor vehicle whilst having a suspended licence in November 2015.

There was a subsequent further 3 year gap before the Applicant’s next offending on 8 December 2018 which resulted in convictions for common assault (DV) – T2 and contravene prohibition/restriction in AVO (Domestic). In this situation the Applicant and the victim had been in an intimate relationship for five years at the time of the offence. There was an Apprehended Violence Order (“AVO”) in place protecting the victim from the Applicant. On 8 December 2018, the Applicant and the victim were walking around Rooty Hill Road North in Plumpton when they began arguing. The victim then attempted to get away from the Applicant by entering a fast-food restaurant, however was stopped when the Applicant grabbed the victim’s shirt and dragged her back outside. The Applicant dragged the victim to the side of the restaurant and pushed her against the wall, pinning her in place with his forearm. The victim tried unsuccessfully to get away from the Applicant. The Applicant and the victim continued to argue. When a number of witnesses from the restaurant gathered around the Applicant and the victim, the Applicant put his arm around the victim and they both walked away. Employees from the restaurant contacted the police.
The police located the Applicant and the victim a short distance away. The victim refused to make a statement. Police reviewed video footage from the restaurant which portrayed the series of events outline above. Police conducted appropriate checks which revealed the AVO in place protecting the victim from the Applicant. The Applicant was arrested and conveyed back to Riverstone Police Station where he refused the opportunity to be interviewed. The Applicant was subsequently convicted and sentenced on 22 February 2019 to Community Corrections Orders for 2 years and fined.
On 1 May 2019, less than three months after his conviction, the Applicant offended again. The Applicant and the victim had been in an intimate relationship for about one year at the time of the offence and had been living with the victim on an “on and off” basis. At the time of the offence, there was an Enforceable ADVO in place protecting the victim from the Applicant. On this day the Applicant and the victim had an argument. The Applicant left but forgot his wallet. When he returned to retrieve his wallet, he saw the victim leaving the location in her car. The Applicant then proceeded to jump on the front windscreen of the victim’s car which caused the windscreen to smash. The Applicant damaged the passenger side mirror of the car in the process of getting off the car. He then left the location immediately. The victim did not call police due to her fear the Applicant would return and harm her or damager her property further.
Later that day, the Applicant returned to the location, stood at the front door and yelled, demanding that the victim come outside, or to let him inside. The victim contacted the police who arrived soon after. Due to her fear of the Applicant, the victim declined to provide a statement to police. On 5 February 2020 the Applicant was convicted again of common assault (DV) – T2 and contravene prohibition/restriction in AVO (Domestic).
On 4 May 2020, three months after his conviction, the Applicant was found possessing a prohibited drug. He was subsequently convicted on 17 June 2020. Just six weeks later (31 July 2020) the Applicant was again found possessing a prohibited drug. This occurred again on 19 January 2020. The Applicant was subsequently convicted of both drugs possession charges on 11 November 2020 and fined.
The Applicant’s criminal conduct continued unabated despite his adverse interactions with the law.
On 26 June 2020, an unknown person stole numerous tools from a victim’s truck. Later that day, the Applicant attended Mega Cash Mount Druitt where he sold a number of tools, stating he was the owner of the items. On 20 July 2020, police attended Mega Cash Mount Druitt to enquire about stolen property that might have been pawned at the store. Police located three power tools in the window for sale, matching the description of the victim’s stolen tools. The police ascertained that the Applicant had sold these tools to Mega Cash Mount Druitt. The Applicant was electronically interviewed by police in relation to the pawned property on 19 September 2020.
On 12 February 2021 at approximately 11pm, the Applicant entered the property of another ex-partner through the back door. The Applicant’s former partner, the victim, was startled as she was unaware the Applicant knew where she lived, having “escaped her previous address to get away from the [Applicant]”. The Applicant requested a hug from the victim and instructed her to do things. The victim refused and repeatedly asked the Applicant to leave. The Applicant refused to leave. The victim and a witness who was also present at the victim’s property fled to the witness’s property next door. The next day on 13 February 2021, the victim called the police and the police attended the victim’s property, locating the Applicant in the rear yard of the property. The Applicant was arrested and conveyed to Penrith Police Station. The Applicant refused the opportunity to participate in an electronically recorded interview. At the time of the incident on 12 February 2021, there was an Enforceable Provisional ADVO in place at the time, protecting the victim from the Applicant.
On 8 March 2021, police attached to the Nepean Domestic Violence Team attended a property in Penrith where they observed the Applicant in the driver’s seat of a motor vehicle with the victim seated next to him. The Applicant identified himself. He was arrested and conveyed to Penrith Police Station where he stated, “we are just trying to reconcile”. An ADVO was in place at the time, protecting the victim from the Applicant.
Just three days later on 11 March 2021, the Applicant attended the victim’s residence. The victim let the Applicant into her residence as he appeared very upset. The victim informed the Applicant he was not welcome and asked him to leave. The Applicant refused to leave. The victim left her residence for several hours and when she returned, the Applicant was still present. At approximately 11:00am that day, the victim went next door and spoke to her case worker and contacted the police. Police attended where they located the Applicant hiding in the bathroom of the victim’s residence. The Applicant was arrested and conveyed back to Penrith Police Station. The Applicant refused the opportunity to participate in an electronically recorded interview. An Enforceable Interim ADVO was in place at the time, protecting the victim for the Applicant.
On 22 March 2021 the Applicant was convicted and subsequently sentenced to a Community Correction Order for 12 months in relation to the suspected stolen goods offence; a s10A Conviction for making/furnishing a statement which is false/misleading; imprisonment of 4 months for the 12/13 February 2021 contravention of the AVO; imprisonment of 1 month for the 8 March 2021 contravention of the AVO; and imprisonment of 6 months for the 11 March 2021 contravention of the AVO.
On 14 January 2022 the Applicant offending continued. The Applicant and the victim had been in a three-year domestic relationship which ended approximately a year before the incident on this day. The Applicant continued to temporarily reside with the victim and they continued their relationship on a casual basis. An Enforceable ADVO was in place at the time, protecting the victim from the Applicant.
On this day, the Applicant was asleep at the victim’s apartment. The victim answered a phone call from a friend which woke the Applicant. The Applicant then started kicking and damaging property in the victim’s apartment. To prevent the Applicant from taking her phone and the keys to her rental vehicle as he had done in the past, the victim sat on top of her phone and keys on the bed. The Applicant pushed the victim off the bed and grabbed the car keys. The Applicant ran out of the apartment and attempted to start the victim’s car. The victim followed and attempted to stop the Applicant from taking her vehicle which resulted in “push and shove”. The Applicant then placed the victim in a head lock and then released her, and following a scuffle, the victim sustained a small laceration to her left shin. The victim entered the car, followed by the Applicant. A witness who had observed the incident called the police. The victim removed the car keys from the ignition and passed them to the witness. The Applicant then yelled at the victim and the witness stating words to the effect of “Give me the keys or I will smash you both”. Fearing for her physical safety, the victim retrieved her keys from the witness and drove off together with the Applicant to a park. The victim convinced the Applicant that she needed to return to her unit. When she returned to her unit, she reported the incident to the police. The police located the Applicant where he was arrested. The Applicant refused the opportunity to participate in an electronically recorded interview.
On 4 March 2022 the Applicant was convicted and subsequently sentenced to a Community Correction Order for 9 months for the conviction Destroy or damage property <=$2000 (DV) – T2; a financial fine for common assault (DV) – T2; and an 18-month Community Correction Order for the conviction for stalk/intimidate intend fear physical etc harm (domestic) – T2.
On 24 March 2022, less than three weeks after his most previous convictions, the Applicant again had an adverse interaction with the NSW Police Force. On this date, the police attended the victim’s property in relation to an Apprehended Domestic Violence Order Compliance check. The police observed both the Applicant and the victim were present in the unit. An Enforceable Apprehended Domestic Violence Order (“ADVO”) was in place at the time, protecting the victim from the Applicant. The Applicant was subsequently arrested for breaching his ADVO and conveyed to St Mary’s Police Station. The Applicant claimed that he had attended the victim’s residence to collect his belongings.
On 25 March 2023, the next day, the Applicant was sentenced to an aggregate 12 months’ imprisonment for the offence of Contravene prohibition/restriction in AVO (Domestic). The Judge noted the Applicants continued offending behaviour, his contravention of AVOs and breach of previous Community Correction Orders. The Judge in his sentencing remarks noted the Applicant’s past history in regard to breaching AVOs. The Judge also noted the current breach involved no aspects of physical violence and the Applicant’s early guilty plea. Nevertheless the Judge considered “no other penalty appropriate other than one by way of a custodial sentence”. The Applicant was eligible for release subject to supervision on parole on 23 October 2022.
CONTENTIONS OF THE PARTIES
The Applicant did not make any written submissions or a written statement to the Tribunal.
In his previous written representations to the delegate dated 22 May 2022 the Applicant stated that his family “splitting apart” had a detrimental effect on him and played a significant role in his relapsing into drug use five years earlier and reoffending. The Tribunal invited him to speak to his written representations at the hearing. He stated his offending since this relapse five years ago had been because of his drug use, and he was now drug free and, at the time of writing, attending drug and behavioural programmes in gaol. The Applicant claimed he was currently being treated for mental illness issues, and he was concerned about his mental health if he returned to New Zealand. The Applicant claimed he had future prospects in Australia and business plans to start his own clothing company in Australia. He claimed a desire to acquire citizenship, reside in Australia with his family and make a contribution to society. The Applicant claimed he was now staying drug free. The Applicant submitted that he had no family to reunite with in New Zealand if the cancellation of his visa was not revoked. The Applicant’s oral submissions at the Tribunal’s hearing reflected these submissions. In summary, the Applicant submits that he is rehabilitated, drug free, and motivated to make a contribution to Australia both through his employment and through supporting his family. He submits his progress and well-being will be tempered should he be returned to New Zealand.
The Respondent refers to the nature and seriousness of the Applicant’s offending and conduct, as well as the risk in the Applicant committing further offences or engages in serious conduct. The committing of multiple violent offences, violence against women, family violence, and the contravention of apprehended violence orders (AVOs) were all relevant to the seriousness of the Applicant’s offending. These factors are relevant to the Primary Considerations of the protection of the Australian community, as well as the expectations of the Australian community. The Respondent submits there is a real risk of the Applicant reoffending based on the Applicant not taking full responsibility for his past conduct; the assessment by Community Corrections that he is a Medium risk of reoffending; his criminal history demonstrating a disregard for judicial orders and law enforcement mechanisms; and his offending which illustrates a pattern of behaviour. The Respondent submits that the Applicant has a history of family violence. The Respondent contends the Applicant did not reside in Australia for his formative years (having arrived just before his 18^th birthday) and subsequently has limited strength, nature and duration of ties to Australia. The Respondent has noted the Best Interests of the Child primary consideration, and notes the Applicant’s biological children reside in Tonga with their mother, and whilst he has multiple nephews and nieces in Australia, there is no evidence concerning the Applicant’s relationship with them or the impact cancellation of his visa would have upon them. The Respondent asserts that the Australian community would expect the Applicant’s visa be cancelled given his conduct. The Respondent considers there are limited impediments to the Applicant’s removal to New Zealand, given his young age and employment skills. His access to comparable health care and social welfare support in New Zealand was also noted as a limited impediment to his return along with no obvious language or cultural impediments.
In summary, the Respondent contends that the factors weighing against revocation of the cancellation of the Applicant’s visa outweigh the factors in favour of revocation.
The Tribunal’s considerations are set out below with regard to the Direction.
IS THERE ANOTHER REASON TO REVOKE – CONSIDERATION OF DIRECTON 99
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens. However, this privilege is conferred in the expectation that non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
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
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Not all of the factors specified are relevant to the facts of this case: the Tribunal has focused on those matters that are most pertinent.
Subparagraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community. Subparagraph (b) identifies conduct that may be considered serious, much of which is not relevant to the conduct of the Applicant, although there is a catch-all provision referring to any conduct that forms the basis for a finding that a noncitizen does not pass an aspect of the character test that is dependent on the decision-maker’s opinion. Subparagraph (c) directs a decision-maker to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/Applicant and sub-paragraph (d) points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. Subparagraph (e) is concerned with an examination of the cumulative effect of an Applicant’s repeated offending. Subparagraph (h) is not relevant to the present case because there is no suggestion that the Applicant provided false or misleading information to the Department or that he failed to disclose prior criminal offending. Subparagraph (g) focuses on whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
The Applicant has been convicted of multiple offences as set out previously in this decision record. The Tribunal has considered the nature and seriousness of his conduct.
The Tribunal notes that the Applicant has been convicted of multiple acts of family violence. The Tribunal notes that Direction 99 states that acts of family violence are considered ‘very serious’ by both the Australian Government and the Australian community. The Applicant has also demonstrated a disregard for the law by his disregard for Apprehended Violence Orders, put in place to protect the victim, on multiple occasions. The Applicant accepted in his testimony at the hearing that he has been convicted of serious and, on occasion, violent crimes and that he has a criminal history of offending over a considerable period. The Tribunal does note that there was a significant period of no adverse interactions with the law and criminal offending between 2009 and 2015, whilst his first family violence offending occurred in December 2018, leading to a conviction in February 2019. The Tribunal considers the evidence suggests the Applicant’s criminal offending has escalated in recent years, although it is submitted by the Applicant that his offending for the five years leading to his most recent convictions was the result of his drug use, intimating that he was not fully responsible and culpable for his actions. For instance in the DOJ sentencing assessment report of 5 February 2020 the Applicant “claimed he had used methamphetamine for the first time on the day of the offence which contributed to his actions”.
On 25 March 2022 the Applicant pleaded guilty to the offence of Contravene prohibition/restriction in AVO (Domestic) and was sentenced to an aggregate 12 months’ imprisonment. The Applicant claimed he had attended his former partner’s home to retrieve his possessions, and he had visited her property after she had telephoned him. The Judge noted the Applicant’s poor history with repeated contraventions of AVO orders, also noting that there had been a further 6 breaches of court-imposed Community Correction Orders due to the Applicant’s failure to remain of good behaviour. The Tribunal notes no violence occurred on this particular occasion, and the Applicant’s statements of regret and acceptance of responsibility for his actions. The Tribunal also notes the evidence in the Police Facts Sheet that at the time of this offending the Applicant was in a casual relationship with his former partner and was continuing to reside with her. The fact remains there was a Court order in place specifically stating the Applicant as neither to approach nor contact his former partner. The Tribunal notes the Applicant’s propensity to once again disregard orders of the Court in behaving in such a manner, a situation that led to the Applicant’s previous convictions being called up and the Applicant resentenced.

The Tribunal has noted the sentencing remarks of the Judge who illustrates a clear frustration with the Applicant’s offending less than three weeks (4 March 2022) after he had been convicted of Common assault (DV) – T2, Destroy or damage property <=$2000 (DV) – T2 ; and stalk/intimidate intend fear physical etc harm (domestic) – T2 for which he had variously received fines and Community Corrections Orders of 9 months and 12 months respectively. The Tribunal considers the 25 March 2022 conviction is demonstrative of a wider contempt for the law and an unwillingness to follow what the Tribunal considers are the Court’s very clear and obvious directives.
The 4 March 2022 convictions pertain to an event on 14 January 2022 when the Applicant was at his former partner’s residence in breach of the AVO. At the residence the Applicant kicked various items around the property and snapped a laundry door off its hinges. The Applicant pushed his former partner off her bed, verbally abused her and attempted to drive off in her motor vehicle. When his former partner attempted to stop him he put her into a headlock. The Applicant’s former partner was eventually able to retrieve the car keys and pass them to a witness, both of whom were threatened by the Applicant. At the Tribunal’s hearing the Applicant denied snapping the laundry door and stated it was already broken. He accepted responsibility for his other actions and again stated his behaviour was the result of his drug taking at the time. The Tribunal notes the genuine fear the Applicant’s former partner faced when the Applicant became agitated and aggressive after being woken by his former partner receiving a phone call.. The Tribunal notes the physical violence the Applicant committed towards his former partner and again, considers the behaviour both deplorable and very serious.
On 22 March 2021, almost a year earlier, the Applicant was convicted of a number of offences spanning a period between 26 June 2020 and 11 March 2021. The first of these was the theft of tools from a truck and their subsequent sale of these stolen goods to a pawn broker (26 June 2020). Whilst no violence was committed in this offence, the Tribunal appreciates the hardship and frustration that the theft of trade tools has to an individual and a business attempting to undertake their business.
Objectively more seriously is the breach of an AVO on 12/13 February 2021 where the Applicant, late at night, entered the property of a former partner who had already moved from her former address to escape the Applicant’s attention. The Tribunal notes the evidence before it pertaining to the breach and appreciates the fear the Applicant’s former partner, who was home with a witness and the witnesses’ child, would have felt given she was unaware the Applicant had discovered her new address. The Applicant’s former partner fled her residence. Whilst no violence occurred, the Applicant’s mere presence in breach of a Court order is in its opinion a serious offence.
This demonstrated contempt for Court orders was again seen on 8 March 2021 when the Applicant, who claimed he was trying to reconcile, was found in a motor vehicle with the protected person. It was demonstrated again on 11 March 2021 where he attended her residence and refused to depart, despite being asked by his former partner to leave. These two further AVO breaches are evidence again of a disregard for the orders of the Court and the law generally.
The Applicant incurred three separate convictions for possession of a prohibited drug on 17 June 2020 and 11 November 2020. The Tribunal has noted the Applicant’s claims that his broader offending is related to his then drug use.
On 5 February 2020 the Applicant was convicted for contravening an AVO and destroying or damaging property on 1 May 2019. The Applicant received two Community Correction Orders if two years that were ultimately called up in March 2022 due to his further offending. This offending in May 2019 occurred just three months after the Applicant’s conviction on 22 February 2019 for Common assault (DV) – T2 and again the contravention of an AVO. These offences occurred in in December 2018. The NSW Police Facts Sheet states that the Applicant and his victim had been in a relationship for around five years. An AVO with conditions the Applicant neither assault nor threaten the victim had been put in place due to a previous domestic violence incident. An argument between the parties led to the Applicant dragging the victim away from a food outlet when she attempted to flee him and using his forearm to pin the victim against her chin and neck. The victim declined to give evidence, with Police relying on witness statements and video footage for the conviction.
There is limited information before the Tribunal pertaining to the detail of the Applicant’s earlier convictions of recklessly causing injury (occurred 1 January 2008); driving a motor vehicle while suspended (occurred 15 August 2015); and earlier convictions for behaving in a riotous manner in a public place and using threatening words in a public place. The Tribunal again considers the Applicant’s behaviour again demonstrates a general disregard for the law and for the safety of other citizens.
For the purposes of s 501, the Applicant concedes his past offending. The Tribunal notes the Applicant pleaded guilty to a multitude of offences for which he was charged.
Notwithstanding the Applicant’s claimed diminished responsibility from drugs over a period of time, the Tribunal finds that the Applicant’s history of criminal offending is very serious. The applicant’s claims that he was not fully responsible for at least some of his behaviour does not diminish the objective seriousness of his offending. It has been over a lengthy period and some of the Applicant’s conduct has been violent, causing physical and possibly psychological harm. The Tribunal accepts the respondent’s submission that the nature and seriousness of the Applicant’s offending weighs against revocation of the cancellation of his visa.
The Respondent submits that the Applicant’s criminal history should be viewed very seriously. The Respondent notes that the Applicant has been convicted of offences including family violence, some of which have involved physical violence. The Respondent notes that the sentence of imprisonment imposed by the Court is indicative of the seriousness of the Applicant’s offending. The Tribunal notes subparagraph (c) of paragraph 8.1.1(1) of the Direction, which requires a decision-maker consider that the imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. The Tribunal, based on the evidence before it, considers the custodial term imposed by the sentencing judge is indicative that the Applicant’s offending was very serious.
The Tribunal finds that the Applicant’s criminal conduct is objectively serious. The Tribunal accepts the Respondent’s submission that the Applicant has demonstrated a concerning disregard for the law, with multiple violent offences, including domestic violence and violence against women, along with multiple contraventions of apprehended violence orders. The Tribunal has noted the Applicant’s claims that drug use was one of the factors that led to some of his more recent offending (the last five years). Yet as HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 makes clear, the Tribunal is compelled to deal with and address the actual offending of the Applicant. The Tribunal must deal with the Applicant’s conduct for which he was found convicted.
The Tribunal subsequently finds that the Applicant’s conduct is very serious. It is well-established that imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. A judicial sentencing officer’s deployment of a custodial sentencing option must be viewed as a reflection of the objective seriousness of the offending sought to be punished: PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [20]-[22]. The Tribunal acknowledges subparagraph 8.1.1(1)(c) and notes the imposition of a custodial sentence which is a reflection of the objective seriousness of an Applicant’s offending.
The Tribunal notes the Applicant has been convicted of multiple offences. These offences have increased in frequency. The seriousness of the offences has remained consistent (rather than of increasing seriousness) during this time with continual contravention of domestic violence order offences and a general unwillingness to obey Court orders being characteristic of the Applicant’s behaviour.
The Applicant’s recidivism is a concern to the Tribunal, with the Applicant repeatedly ignoring a wide range of Court Orders and breaching restrictions. The Applicant has repeatedly committed the same offences, including contravening AVOs put in place to protect victims. The Tribunal has considered the cumulative effect of the Applicant’s repeated offending.
There is no record or suggestion that the Applicant has provided false or misleading information of the Department, including by not disclosing prior criminal offending. There is no record or suggestion that the Applicant has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Applicant’s offences were committed in Australia. There is no record or suggestion the Applicant has committed an offence in another country.
The Tribunal has sought to apply each of the relevant subparagraphs in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable paragraphs, the Tribunal finds the Applicant’s conduct can be characterised as very serious.
Risk to the Australian community should the Applicant commit further offences or engage in serious conduct
Paragraph 8.1.2(1) provides that in considering the need to protect 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.
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.
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.
The Tribunal’s task is to assess the nature of the harm to individuals or the Australian community in the event of this applicant engaging in further criminal or other serious conduct. To make such an assessment requires the Tribunal to consider what harm would be caused to individuals or the Australian community if the Applicant were to reoffend and return to criminal conduct. The Tribunal has subsequently considered what harm would be caused if the Applicant returned to offending via the resumption of anti-social criminal behaviour that includes common assault (DV) – T2, contravene prohibition/restriction in AVO (domestic), stalk/intimidate intend fear physical etc harm (domestic) – T2, destroy or damage property <=$2000, goods suspected stolen given other not entitled (not m/v), make/furnish a statement which is false/misleading, destroy or damage property, possess prohibited drug, drive motor vehicle while licence suspended – 1^st offence, recklessly cause injury, behave in a riotous manner in public place, and use threatening words in public place.
The Tribunal has considered the nature of any harm, should the Applicant engage in further criminal or other serious conduct. The Tribunal, having noted the Applicant’s offending to be very serious, considers that the nature of any harm, should he again engage in further criminal or other serious conduct of a similar nature, would be significant. The Tribunal considers there would be serious harm to both individuals and the community. The Tribunal particularly considers the family violence offences are serious and could cause serious emotional and/or physical damage to the victims should the applicant reoffend. The Tribunal notes that victims of the Applicant have been assaulted and in cases threatened in their own homes. Their homes and property have been damaged. The Tribunal considers the fear generated by such abominable behaviour by the Applicant to be significant. Any future serious criminal conduct of the Applicant, of a similar nature, can be expected to have a detrimental impact upon the victims.
The Tribunal has considered the likelihood of the Applicant engaging in further criminal or other serious conduct. It has taken into account information and evidence of the risk of the Applicant re-offending; and any evidence of rehabilitation achieved by the time of decision, giving weight to time spent in the community since their most recent offending.
The Applicant asserts that he has changed since his offending and is remorseful for his past behaviour. From the Sentencing Remarks of the Local Court of New South Wales dated 25 March 2022, the Applicant stated: “I apologise to the courts and I just wanted to say…I’m changing my life since I relapsed five years ago, you know, I know I’ve been in constant trouble with this same case, But I’m clean now and, I start work on Monday”. The Applicant furthermore stated to the Judge “I’m drug-free now and…I’m on the right path to change my life”.
This was reflected in the Applicant’s own written declaration to the Department in response to the notice of his visa cancellation on 19 May 2022 where he wrote “Since my relapse 5 years ago all my offending has been because of my drug use. I am currently drug free and intend to stay drug free.” In his oral testimony to the Tribunal the Applicant asserted that his behaviour was the end result of drug use (largely the result of his family breaking apart, with his 4 children relocating with their mother offshore) and now he had realised the error of his ways, rehabilitated himself, was totally free from drugs and alcohol, and simply needed a chance to re-engage in the Australian community. He stated he had an excellent employment record and had a job essentially to return to should he be released into the community again.
The Applicant has also drawn the Tribunal’s attention to a wide number of rehabilitation courses he has completed, some on multiple occasions, whilst he was either in criminal incarceration or immigration detention.
The Respondent has stated that there is at least a moderate risk of the Applicant reoffending. The Respondent submits that whilst the Applicant has expressed remorse and undertaken rehabilitation courses, the Tribunal “should be slow to accept’ the Applicant’s contrition in circumstances where he has not taken full responsibility for his conduct.
The Tribunal has considered the evidence before it. The Tribunal notes the Department of Justice case note of 3 June 2022 that states the Applicant “minimised his behaviour” when discussing his recent offending. He also stated to the Medical Officer that he was living with his former partner, in breach of the law, “even though he knew the conditions”. The Tribunal notes these remarks were made well after the Applicant claims to be “clean” and rehabilitated himself from drug use. The Tribunal considers they are indicative of the Applicant failing to take genuine responsibility for his offending. Whilst he states he is remorseful in his evidence and takes responsibility for his behaviour, the Applicant at the same time continues to justify and explain his offending behaviour.
The Tribunal also notes that the Applicant has continued to offend since he claims to have rehabilitated and refrained from drug use. In the sentencing of the Applicant at the Penrith local Court on 25 March 2022 the Tribunal notes this exchange between the Judge and the Applicant (The Accused in the Court transcript), which indicates the Applicant’s most recent offending at least occurred whilst the Applicant was “drug-free”:
ACCUSED: I'm clean now your Honour. I'm drug-free now and I just, I'm on,
I'm on the right path to change my life and I just need to, I need to be productive in the community.
HIS HONOUR: Drug-free since when?
ACCUSED: Since last year your Honour.
HIS HONOUR: Since last year. So why does that explain, or how does that
explain you continuing to commit an offence on 24 March in those particular
circumstances?
Given such evidence, the Tribunal continues to harbour some doubts that the Applicant’s serious offending, that included common assault (DV) – T2, the destruction of property and multiple contraventions of AVOs in the year leading up to the Applicant’s claim in the Penrith Local Court, is solely or even predominantly the result of drug and alcohol abuse. Given that, the Tribunal considers there remains at least a medium risk of the Applicant reoffending even if he is rehabilitated and free from drug and alcohol abuse as he has maintained.
The Tribunal would furthermore note that it is not entirely satisfied that the Applicant is rehabilitated and free from drug and alcohol abuse. The Tribunal notes, just a couple of months after the Applicant claimed to be drug free, it was recorded by Corrective Services officers at HM Bathurst Gaol in the Inmate Discipline Form dated 28 June 2022 that the applicant was found in possession of drug contraband, being a gaol-made syringe as well as tobacco (which obviously is now prohibited in gaol). Whilst the Tribunal recognises the Applicant did inform officers of the syringe prior to the search, the Tribunal nevertheless has concerns that its presence suggests the Applicant may still have a propensity towards the use of drugs. Given the Applicant claims drug use was the key factor pertaining to his offending, the presence of drug contraband whilst incarcerated is relevant. The Tribunal would also note that the Applicant’s preparedness to breach prison rules furthermore speaks to the reliability of his claims to have rehabilitated.
The Tribunal acknowledges that the Applicant has in fact completed a large number of rehabilitation courses and taken this into account. The offending that has continued in spite of some of these courses being successfully completed leads the Tribunal to put only limited weight on them as evidence that the risk of the Applicant reoffending is mitigated by any significant degree. The Applicant’s last Sentencing Assessment Report of 28 February 2022 states the Applicant “felt ashamed that he completed various programs in relation to domestic violence in 2021 and that he didn’t reflect on them at the time of his offences as he lacked self-awareness and behaved in an uncontrolled way”. The Tribunal furthermore notes from this report that the Applicant engaged in the Practice Guide for Intervention as part of his earlier supervision and remained compliant for testing. The Report states however that “he reoffended soon after his supervision was suspended”. Whilst the Applicant appears to make the correct oral statements and declare he is taking responsibility for his past actions and rehabilitated, the evidence unfortunately suggests, based on his past behaviour, the Applicant remains a genuine risk of reoffending. The Tribunal acknowledges the Applicant was assessed as a T3/Medium risk of reoffending in this report. The Tribunal considers the risk of reoffending remains significant.

The Respondent also submitted the Applicant’s criminal history, that features multiple breaches of AVOs, Community Correction Orders and Bail demonstrate a disregard for judicial orders, and subsequently poorly on his ability to abide by the law. The Tribunal has already discussed the Applicant’s criminal history at some length, and on the evidence concurs that the Applicant’s pattern of continued disregard for various orders of the Court are of relevance to the assessment of risk. The Applicant has blamed drug use for this disregard, but again the Tribunal notes from the Applicant’s own evidence that some of his most recent offending occurred when he claimed to be drug free. The Tribunal does not accept either that the Applicant was unaware that AVOs prohibited him from approaching his former partner and victim, whatever the status of their relationship. The Tribunal considers such a continued and ongoing contempt for the law and refusal to follow court orders is indicative that the risk of reoffending remains significant, and there remains a likelihood he will once again reoffend.
The Respondent also asserted that the Applicant’s offending demonstrated a pattern of behaviour, meaning that it could not reasonably be asserted his offending was a one-off or out of character. The Tribunal notes that the Applicant has breached AVOs on multiple occasions and breached community correction orders that required him to be of good behaviour on numerous occasions. He has been convicted of assaulting former partners twice. His offending has often occurred just weeks after his last interaction with the Courts, the most recent occurring less than three weeks after he was sentenced by the Court for previous offending. The Tribunal considers the Applicant’s pattern of offending behaviour is demonstrative of the very real of risk of reoffending occurring should the Applicant be released into the community.
The Tribunal considers the risk of the Applicant reoffending remains unresolved and he remains at risk of reoffending. The Tribunal furthermore considers the evidence of rehabilitation achieved by the Respondent is limited and his insight into his offending is limited. The Tribunal accepts that substance abuse may have been a factor in the Applicant’s offending. It does not, however, mitigate any ongoing risk or allow the Tribunal to overlook any ongoing link between the Applicant’s offending and his use of illicit drugs.
The Tribunal finds itself in agreement with the Respondent in relation to the Applicant’s insights into his offending and agrees that his understanding as to the seriousness of his offending on some matters is a concern. For example in the Sentencing Remarks of the Local Court of NSW dated 25 March 2022, in relation to his most recent offending, the Applicant appeared to see no issue with staying overnight at the victim’s residence despite having already been convicted of breaching AVOs on multiple occasions, stating to the sentencing judge “I didn’t know there was no contact. No”. Such actions, combined with repeated offending and a preparedness to ignore Court orders on frequent occasions, remains a concern to the Tribunal, despite the claims of the Applicant to have learned from these situations, was rehabilitated from drugs and focused on becoming a model citizen. The Tribunal subsequently weighs this matter against the Applicant when assessing the risk of the Applicant reoffending.
The Applicant discussed his employment record at the Tribunal’s hearing and noted he had essentially always been in gainful employment whilst in Australia. The Tribunal accepts the Applicant has been in consistent employment, has demonstrated a strong work ethic and is a reliable employee. The Tribunal does not however think the Applicant’s sound employment record, and the purported stability this brings in life, mitigates the risk of his reoffending. The Tribunal notes the Applicant was in gainful employment at the time of his past offending and reoffending. His offending occurred despite his employment status. Given this, the Tribunal does not think the Applicant returning to work in the community will in any significant way mitigate the risk of future reoffending.
The Tribunal has considered the various claims and factors contributing to the Applicant’s past offending conduct, and the risk of reoffending. The Tribunal is satisfied, having considered the evidence before it, that there remains a significant risk of the Applicant reoffending. In relation to rehabilitation, the Tribunal acknowledges the courses the Applicant has undertaken, but remains dissatisfied that the Applicant has illustrated genuine evidence of rehabilitation. The Tribunal notes that the Applicant has stated on a regular basis whilst incarcerated that he wishes to change his behaviour in relation to offending, drug use and domestic violence (such as on 3 June 2022), yet just a few days later he was
found in gaol with drug paraphernalia. This event occurred in fact just a few months after the Applicant stated to the sentencing Judge he was drug free and rehabilitated. The Tribunal considers this evidence is entirely relevant and significant in its assessment of the Applicant’s risk of reoffending.
The Tribunal has formed the view that, despite the Applicant’s participation in some rehabilitation programs and courses, his claims he is now drug free and rehabilitated, and had learned from his previous serious errors and offending, that these statements cannot ultimately be accepted unequivocally. The Applicant at the Tribunal’s hearing clearly and succinctly stated he was a changed man and regretted his past offending behaviour. The Tribunal’s concern is these same or similar statements have been made by the Applicant to the courts when he has appeared before them after his reoffending. The Tribunal recognises the Applicant’s statements that he fears for his mental health if the cancellation of his visa is not revoked. There is no satisfactory evidence however before the Tribunal to suggest that mental health reasons are to either blame for his past offending, or that he has been receiving regular treatment for mental and psychological health disorders. The Tribunal in fact notes from the NSW DOJ case note from 3 June 2022 that states the Applicant “reports he has never been diagnosed with any mental health issues or disabilities. (The Applicant) also stated he has no current thoughts or plans of self-harm or suicide. (The Applicant) reports he is not impacted day-to-day by his mental health. “
The Tribunal has assessed the risk of recidivism by the Applicant. For the reasons above, the Tribunal is not satisfied he will not reoffend.
The Tribunal finds that the risk of reoffending remains. The Tribunal finds that were the Applicant to commit further offences or engage in serious conduct, the nature of the harm to individuals and/or the Australian community would be very serious.
With reference to the weight attributable to this Primary Consideration 1, the Tribunal finds the nature and seriousness of the Applicant’s conduct has been ‘very serious’. The Tribunal finds that were the Applicant to reoffend, the nature of the harm to individuals and/or the Australian community would be ‘very serious;’ and, in terms of recidivist risk, the Tribunal has, after a fulsome review of the evidence, concluded that the Applicant remains a ‘serious’ risk of reoffending.
The Tribunal has formed the view that the Primary Consideration 1, protection of the Australian community, weighs very heavily against the revocation of the cancellation of the Applicant’s visa in the circumstances of this case.

Primary Consideration 2: Family Violence

Paragraph 8.2 (1) of the Direction provides that “The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia.” It is furthermore noted that the Government’s concerns are proportionate to the seriousness of the family violence engaged in by the noncitizen and thereafter the Direction sets out, at subparagraph (3), certain factors that should be considered.
The Direction defines family violence as “violent, threatening or other behaviour by a person that…causes the family member to be fearful.”
The Direction, furthermore, states that a member of the person’s family, for the purposes of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person. In the current case, the Applicant’s offending involved incidents of actual violence and intimidatory behaviour against his partners at the time, and ex-partner respectively. The Respondent has submitted that the Applicant has subsequently been convicted of 5 family violence offences. The first of these are the Applicant’s conviction for Common Assault (DV) – T2 in 2019 where the victim was the Applicant’s intimate partner at the time; the second is the Applicant’s 2020 conviction for Destroy or damage property where the victim was the Applicant’s partner at that time. The other three are the Applicant’s 2022 convictions for Common Assault (DV) – T2; Destroy or damage property <=$2000 (DV) – T2; and Stalk/Intimidate intend fear physical etc harm (domestic) – T2.
The Respondent has stated that the 2020 conviction for Destroy or damage property is classified as family violence as it has been defined in paragraph 4(1) of the Direction as behaviour that “intentionally includes damaging or destroying property. The Tribunal agrees with the Respondent’s interpretation. The Respondent furthermore states the three 2022 convictions are also classified as family violence as, whilst the Applicant and the victim were no longer partners at the time of offending, Paragraph 4(1) states that a member of a person’s family also includes those who the individual has had an intimate personal relationship. It is not in dispute that the Applicant had previously had an intimate relationship with the victim from his 2022 convictions.
The Tribunal subsequently finds that the Applicant has been convicted of five family violence offences. The Tribunal furthermore finds the offending was serious, involving physical assault, violence against women, wanton property damage and various threats and intimidation.
In considering the seriousness of the family violence engaged in by the Applicant, the Tribunal has had regard to the factors set out in paragraph 8.2(3) of the Direction. There is a trend of the conduct representing family violence as occurring more frequently and of increasing seriousness. The Tribunal has had regard to the cumulative effect of such acts.
The Tribunal notes that the Applicant’s offending did involve an increase of offending over time. Given his first family violence offence was a serious physical assault, it can be arguable that the Applicant’s offending behaviour has not necessarily increased in seriousness over time. Nevertheless the increasing frequency and indeed repeat behaviour of the Applicant that is classified as family violence is of significant concern. The circumstances of family violence have been set out in this decision and suggest the Applicant has used physical violence and threatened violence towards another person. The Tribunal is of the view these five particular offences constitute family violence. The cumulative effects of the Applicant’s behaviour that is classified as family violence leads the Tribunal to conclude that he has a significant propensity to commit such acts that constitute family violence towards those that he has had or is having an intimate relationship with.
The Tribunal has also taken into account the attempts at rehabilitation by the Applicant. The Tribunal notes the Applicant has acknowledged his offending and expressed remorse, but notes, as discussed previously in this decision record, the Applicant’s reticence to accept responsibility for, and demonstrate insight into his offending. The Tribunal notes the Applicant’s expressed blame for his offending behaviour on drug abuse, and his various claims, including to the courts, to have now overcome his addictions. The Tribunal recognises that contrary to such claims, the Applicant has exhibited ongoing issues in relation to illegal drugs, being found in gaol with drug paraphernalia just a few months after claiming in court to have been free from drugs for over a year. The Tribunal furthermore notes that the Applicant’s 2022 convictions that involved family violence were from a period that the Applicant has in fact claimed he was already free from drug use. In such circumstances, and noting his recidivism, the Tribunal has ongoing concerns as to the Applicant’s commitment to genuine and long-lasting rehabilitation.
The Tribunal has considered the Applicant’s reoffending since being formally warned about the consequences of further offending that constitutes family violence. The Applicant’s first act that constitutes family violence was in 2018 where he also contravened an AVO in place to protect the victim. Despite a conviction at that time for common assault, he was afforded a Community Correction Order. Multiple AVOs have been put in place to protect former partners of the Applicant since that offending which the Applicant has subsequently breached. The Applicant has breached Community Correction Orders that were subsequently called in by NSW Police. The Tribunal considers the evidence suggests the Applicant has had multiple warnings about the consequences of further offending that constitutes family violence.
The Tribunal finds that some of the Applicant’s offending involved family violence and the Tribunal is not satisfied the Applicant, whilst stating his remorse and a stated willingness to improve his situation for the benefit of himself and his children in Tonga who he claims to financially support, has full insight and into and responsibility for his offending conduct.
The Tribunal has formed the view that the Primary Consideration 2, family violence, weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
Primary Consideration 3: The Strength Nature And Duration Of Ties To Australia
Paragraph 8.3 of the Direction provides:
(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 noncitizen 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
iii.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 noncitizen began offending soon after arriving in Australia.
The Applicant has listed six siblings in his response to the Department’s invitation to list all living parents, step-parents, brothers, sisters and adult children in provide reasons for requesting revocation. He states five of his siblings hold Australian nationality and reside in Australia. The Applicant spoke about his relationship with each of his siblings at the Tribunal’s hearing. He claims to enjoy sound relationships with all, especially his eldest sister Mrs Toakase Layte and is in regular contact with them. The Applicant also lists one other close family member who is an Australian national and resident in Australia, his brother-in-law Mr Julian Layte. The Applicant claimed to the delegate that his immediate family members would be devastated if the cancellation of his visa was not revoked.
The Tribunal noted the Applicant that no submissions had been made by his immediate family members in support of him. The Applicant claimed that his siblings had difficulties meeting the time frame to make submissions and provide evidence. The Tribunal notes that no submissions were made by his immediate family members to the delegate either. Whilst noting that the Applicant is unrepresented, and the additional challenges that may bring in providing supportive evidence to his case, the Tribunal places limited weight on his statements that he is supported by his siblings in Australia given the lack of any corroborative evidence of their support. The Tribunal notes the Sentencing Remarks of 25 March 2022 that the Applicant was living with one of his brothers. Whilst the Tribunal might accept that he was living with one of his siblings, the Tribunal nevertheless retains considerable doubts as to the veracity of the Applicant’s claim he has a close relationship with his siblings and they would be “devastated” if the cancellation of his visa was not revoked.
The Applicant has listed 20 uncles/aunts, 12 nieces/nephews, 75 cousins and 2 grandparents in his response to the Department’s invitation to list other relatives living in Australia or overseas. The Applicant provided some brief oral testimony as to his purported relationship with his uncles/aunts and nieces/nephews at the Tribunal’s hearing. There is no corroborative evidence however before the Tribunal from these family members to support any of these claims. Whilst the Tribunal might accept he has a cordial relationship with his extended family members, there is no evidence before the Tribunal to suggest the strength, nature or duration of these relationships is of any particular weight or consequence.
In the Applicant’s response to the Department’s invitation to provide reasons for requesting revocation, the Applicant stated his four children were Australian citizens who would be heavily impacted if he and their father was sent home. At his hearing the Tribunal pointed out that his children were not in fact Australian citizens. All reside in Tonga with their mother. The Applicant agreed that they were not and stated his previous statement was the result of a misunderstanding. The Tribunal finds, for the purposes of this Primary Consideration, they are not Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
The Tribunal notes that decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. The Tribunal notes that 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. The Applicant arrived in Australia when he was 17 years and 11 months old. By then he had completed his education offshore. Whilst acknowledging the Applicant has spent a considerable period in Australia, the Tribunal notes that the Applicant did not spend his formative years in Australia but rather variously in the United States, New Zealand and Tonga. Subsequently, the Tribunal gives less weight to the Applicant’s ties to Australia for this reason.

The Tribunal notes that 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. The Tribunal consider the Applicant has made a contribution to the community through remaining in gainful employment since his arrival in Australia. The Tribunal notes however that undertaking paid employment to support oneself and their family is not a particularly unique or noteworthy contribution. Indeed, it is something millions of people undertake every day.
The Tribunal notes that less weight should be given to the Applicant where a non-citizen began offending soon after arriving in Australia. In the Applicant’s case, his offending commenced in July 2007, little more than three years after his arrival in Australia. The Applicant was convicted of behaving in a riotous manner in a public place and using threatening words in a public place. The Tribunal subsequently gives less weight in favour of the Applicant given his offending beginning relatively recently after his arrival in Australia.
The Tribunal considers the Applicant’s strength, nature and duration of her ties to Australia, despite him being in Australia since 2004, are not strong. There is very little evidence before the Tribunal pertaining to his claimed links to his immediate and broader family in Australia. Whilst he has been in gainful and ongoing employment in Australia, the Tribunal does not consider this employment, that has moved around various industries and locations, to represent a particularly string tie to Australia.
The Tribunal has formed the view that the Primary Consideration 3, the strength, nature and duration of ties to Australia, weighs very slightly in favour of the revocation of the cancellation of the Applicant’s visa.
Primary Consideration 4: The Best Interests Of Minor Children 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 of the Act 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.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia in Paragraph 8.4(4) which relevantly include the nature and duration of the relationship between the child and the non-citizen.
The Applicant has submitted he has four biological children: three sons aged 11 years, 10 years and 6 years of age, along with one daughter who is 7 years of age at the time of the Tribunal’s decision. The Applicant has submitted that the children all reside with their mother in Tonga. The evidence suggests they have done so since 2016.
The Applicant states he contacts his children often via Facebook Messenger and provides for them financially whenever he is able to.
As stated earlier in the Decision record the Applicant stated his children were Australian citizens who would be heavily impacted if he and their father was sent home, however at his hearing the Applicant stated his previous statement was the result of a misunderstanding and they were not in fact Australian Citizens
Given the Applicant’s biological children reside in Tonga, and are not Australian citizens or Australian permanent residents, they are not relevant for the purposes of this consideration.
The Tribunal notes the Applicant states he has relationships with a dozen nephews and nieces that are resident in Australia and Australian citizens or permanent residents. The Applicant discussed his claimed relationship with them at the Tribunal’s hearing. The Applicant has submitted that they will be impacted by the non-revocation of the cancellation of his visa.
Beyond the Applicant’s oral testimony, there is no evidence before the Tribunal as to how the Applicant’s nieces and nephews will be affected by the non-revocation of the cancellation of his visa. There is no other evidence before the Tribunal as to his current relationship with those children and the nature and extent of any of those relationships.
The Tribunal furthermore notes, as outlined in subparagraph 8.4(4)(a), that less weight should be given if the relationship is a non-parental one. In the Tribunal’s opinion, the relationships between the Applicant and his nephews and nieces cannot be considered as having the same weight and importance as a parental relationship. The Applicant stated at the hearing that he keeps in contact with his extended family via electronic means. If this is the case, the Applicant will still be able to maintain such contact should the cancellation not be revoked and he be required to depart Australia.
The Tribunal has formed the view that the Primary Consideration 4, the best interests of minor children in Australia, is of neutral weight, and subsequently weighs neither in favour or against the revocation of the cancellation of the Applicant’s visa.
Primary Consideration 5 – Expectations Of The Australian Community
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct. Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)    acts of family violence; or
b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)     commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or;
f)     worker exploitation.
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 [2019] FCAFC 185 (“FYBR”). In FYBR, the Court 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. 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.[2]
[2] 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 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.
The Applicant has not made any submissions in relation to this matter.
The Respondent submits that given the nature of the Applicant’s offending; the Australian community would expect that the Applicant’s visa would remain cancelled.
The Tribunal has considered the primary consideration by considering the Applicant’s offending, conduct which the Tribunal found was ‘very serious’. The Tribunal has found the Applicant engaged in ‘very serious’ offending. The question before the Tribunal subsequently is what is the expectation of the Australian community concerning a visa-holder who has engaged in very serious offending through a drug cultivation offence like that of the Applicant.
In the case of the Applicant, his offending behaviour has engaged the principle in paragraph 8.5(2). The Tribunal subsequently agrees with the Respondent’s submissions that given the nature of the Applicant’s offending, the Australian community would expect that the Applicant’s visa would remain cancelled. The Tribunal notes that the Applicant’s repeat offending has included multiple incidents of family violence and violence against women. The Direction specifically states that that there is an expectation of cancellation where the serious character concerns are raised due to the committing of certain types of conduct that include family violence. In the circumstances of this case, the Tribunal considers it means the Australian community has an expectation that the Australian Government can and should cancel the Applicant’s visa.
The Tribunal notes that the Applicant has been convicted of offences that involve acts of family violence. The Tribunal has found the Applicant engaged in ‘very serious’ offending. through a range of offences involving multiple convictions for common assault; contravene prohibition/restriction in an AVO, stalk/intimidate intend fear physical etc harm; destroying property; possessing prohibited drugs; and recklessly causing injury. Notwithstanding the Applicant’s explanation for this offending, the Tribunal concludes community expectations would weigh against revocation of the cancellation of the Applicant’s visa.
The Tribunal has formed the view that the Primary Consideration 5, Expectations of the Australian Community, weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at section 9 of the Direction. Paragraph 9 of the Direction provides that the decision-maker must take ‘other considerations’ into account where relevant, and these considerations include, but are not limited to, the legal consequences of a decision under section 501 or section501CA of the Act; the extent of impediments to the non-citizen if removed; the impact on victims; and impact on Australian business interests.
(a) Legal consequence of the decision
There is no claim by the Applicant, or evidence before the Tribunal, in relation to Australia’s international non-refoulment obligations.
The Tribunal notes the Applicant is not covered by a Protection finding as defined in s197C of the Act.
No assessment by the Tribunal is necessary in this review.
The Tribunal has formed the view that the Other Consideration (a), Legal consequence of the decision, is of no relevance and gives it no weight.
(b) 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 Respondent notes the Applicant is 36 years of age. The Applicant raised his health as an impediment to his return to New Zealand in his response to the Department’s invitation to provide reasons for requesting revocation of his visa cancellation. In response to the question Do you have any diagnosed medical or psychological conditions? The Applicant responded “Yes”.. The Applicant was requested to provide evidence from a medical professional to support such claims, and to provide details of his conditions/s. The Applicant responded his condition was “Currently being diagnosed”. In relation to the question as to whether he was currently being treated by any doctor/health professional/counsellor, and whether he wished to provide a report regarding treatment and progress, the Applicant stated he was “Currently being treated for mental illness issues”.
The Applicant furthermore claimed he was concerned for his wellbeing and mental health should he be returned to New Zealand. He furthermore claimed that his return to New Zealand would affect him mentally and emotionally, and would reverse any progress in his rehabilitation thus far. The Applicant provided similar oral testimony at the Tribunal hearing.
The Tribunal notes that there is no material or evidence before it to corroborate the Applicant’s claim of a diagnosis of mental illness issues nor is there any material or evidence of the Applicant being treated for such. In the absence of any corroborative evidence of any diagnosis or treatment for mental health issues, the Tribunal is not satisfied that the Applicant has either been diagnosed with such issues or is being treated as such. The Tribunal furthermore notes the Applicant is only 36 years of age and has a strong employment record. The Tribunal finds that any impediments the Applicant may face in relation to his age and health should he be returned to New Zealand are very limited.
The Tribunal has considered whether there are any substantial language or cultural barriers to the Applicant should he be removed. The Applicant stated that whilst he is a citizen of New Zealand, he has spent little time there, having migrated to the United States when he was very young and having spent a relatively brief time in New Zealand prior to arriving in Australia not long before his 18^th birthday. The Tribunal acknowledges the Applicant’s statement that he has no family members residing in New Zealand, and that he has spent only a limited time residing in New Zealand. Nevertheless the Tribunal notes the vast language and cultural similarities between Australia and New Zealand. Given the Applicant is a fluent English speaker and has resided in English-speaking countries his entire life, the Tribunal does not consider there are any linguistic barriers preventing the Applicant re-establishing himself there. The Tribunal recognises the Applicant’s statements concerning his lack of family members in New Zealand and his lack of personal and family connection to New Zealand. The Tribunal nevertheless notes that New Zealand and Australia share significant cultural and social similarities. Whilst recognising the Applicant’s relative lack of family members in New Zealand, the Tribunal is not satisfied there are cultural, social or linguistic barriers that will prevent the Applicant re-establishing himself there.
The Tribunal has taken into account the extent of any impediments the Applicant may face in relation to the social, medical and/or economic support available to the Applicant in New Zealand. As stated previously, the Tribunal based on the evidence before it, does not accept the Applicant has been diagnosed with mental and psychological health issues. The Tribunal does accept that the Applicant has faced into health issues pertaining to the use of illegal drugs. Even if the Applicant is facing mental and psychological health issues, the Tribunal notes that would have access to the same medical and social services generally available to all citizens of New Zealand. The Tribunal furthermore, noting the Applicant’s use of illicit drugs, considers the Applicant as a New Zealand citizen will be able to access equivalent health services to assist him address any issues he has in this area. The Tribunal also considers the Applicant, as a New Zealand citizen, will be able to access essentially equivalent social support and housing as needed if he returns to New Zealand. Whilst the Tribunal recognises the Applicant’s good employment record, the Tribunal has considered the Applicant’s financial circumstances if he were out of work in the community. The Tribunal notes that the New Zealand government has a similar social welfare net in place to Australia. Ultimately, the Tribunal considers Australia and New Zealand have comparable systems in place in relation to medical care, social support and housing. The Tribunal notes the decision of SM Kelly in Tera Euna and Another v Minister for Immigration and Border Protection [2016] AATA 301 at [101]. Based on these findings, the Tribunal does not consider the Applicant will face any significant impediments if he were removed to New Zealand in relation to social, medical and/or economic support available in New Zealand.
Whilst accepting the Applicant arrived in Australia in 2004, and there may be some limited general challenge in reintegrating into everyday New Zealand life given his limited time spent on the country, the Tribunal accepts the Applicant’s submissions that the Applicant would face limited impediments upon returning to New Zealand.
The Tribunal has formed the view that the Other Consideration (b), extent of impediments if removed, weighs slightly, but not determinately, in favour of revocation. The Tribunal has given the consideration very limited weight.
(c) Impact on victims
Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 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 and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before the Tribunal about any victims of the Applicant’s offending, other than the Applicant’s former partner.
The Tribunal has formed the view that the Other Consideration (c), impact on victims, weighs neither in favour nor against revocation.
(d) Impact on Australian business interests
Paragraph 9.4 of the Direction 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.

The Respondent has made no direct submissions on this consideration beyond a statement that he had future plans to establish his own clothing company in Australia. The Tribunal finds that removal of the Applicant from Australia will nevertheless not have any impact on Australia’s business interests. The removal of the Applicant will not significantly compromise the delivery of a major project or delivery of an important service in Australia.
The Tribunal has formed the view that the Other Consideration (d), impact on Australian business interests, weighs neither in favour nor against revocation.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequence of decision under s501 or s501CA: weighs neither in favour nor against revocation.
(b)extent of impediments if removed: weighs slightly in favour of revocation.
(c)impact on victims: weighs neither in favour nor against revocation.
(d)the impact on Australian business interests: weighs neither in favour nor against revocation.
CONCLUSION
The Applicant does not satisfy the character test. The Tribunal has subsequently considered whether there is another reason the decision to cancel his visa should be revoked. The Tribunal has weighed these considerations in accordance with the Direction.
As already noted, Primary Consideration 1, the protection of the Australian community weighs very heavily against revocation. The Applicant has engaged in conduct viewed very seriously by the Australian Government and the Australian community. His offending has included acts of family violence, and crimes of a violent nature against women. The Applicant’s offending has increased in recent years, and the Tribunal has taken into account the cumulative effect of his repeated offending. The Tribunal has also taken into account the risk to the Australian community should the Applicant engage in further offences or engage in further serious conduct. The Tribunal has taken into account the nature of harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct. This conduct includes common assault, the damage of property and the breach of further AVOs put in place to protect victims. The Tribunal has also taken into account the likelihood of the Applicant reoffending, noting his recidivist behaviour and his poor record of reoffending. The Tribunal has also considered the limited evidence of the Applicant’s rehabilitation.
The Tribunal notes that Primary Consideration 2, Family violence committed by the non-citizen, weighs very heavily against revocation. The Applicant has committed a significant number of offences that involve family violence. The Applicant’s recidivism and his preparedness to ignore multiple AVOs in relation to former partners remain an issue of real concern and the Tribunal retains concerns that the Applicant remains a risk of reoffending.
The Tribunal has weighed Primary Consideration 3, the Strength, Nature and Duration of ties to Australia very slightly in favour of the revocation of the cancellation of the Applicant’s visa. Despite the Applicant being in Australia since 2004, the Tribunal considers the Applicant’s ties to Australia are only of limited weight. The Tribunal notes the Applicant spent his formative years offshore. The Applicant has stated his strong connection to his five brothers and sisters in Australia, yet there is no evidence before the Tribunal to corroborate this claim. Similarly, there is no corroborative evidence as to the Applicant’s relationship with his numerous uncles/aunts, nieces/nephews, and cousins in Australia. Whilst the Tribunal might accept he has a cordial relationship with his extended family members, there is no evidence before the Tribunal to suggest the strength, nature or duration of these relationships is of any particular weight or consequence.
The Tribunal has weighed Primary Consideration 4, The Best Interests of Minor Children, of neutral weight. The Applicant’s four children reside in Tonga with their mother and are not Australian citizens or permanent residents, meaning they are not relevant in relation to this consideration. The Applicant has claimed he enjoys a sound relationship with his various nephews and nieces that are under the age of 18, yet no corroborative evidence has been submitted in support of such a claim. In such circumstances, the Tribunal gives no weight in the Applicant’s favour and instead gives the consideration neutral weight.
The Tribunal has weighed Primary Consideration 5, Expectations of the Australian Community, very heavily against the revocation of the cancellation of the Applicant’s visa. The Tribunal considers that, given the nature of the Applicant’s offending, the Australian community would expect that the Applicant’s visa would remain cancelled. The Tribunal notes that the Applicant’s repeat offending has included multiple incidents of family violence and violence against women. The Direction specifically states that there is an expectation of cancellation where the serious character concerns are raised due to the committing of certain types of conduct that include family violence.
The Tribunal has considered the other considerations. The considerations concerning the legal consequences of the decision and the impact on victims are of no relevance, as is the impact on Australian business interests. The Tribunal has considered the extent of impediments to the Applicant if he were removed to Australia. The Tribunal considers the impediments are limited given the Applicant’s relatively young age, his health, the lack of any substantial language or cultural barriers and the availability of access, as a New Zealand citizen, of medical and economic support essentially equivalent to that available in Australia. Given however the Applicant has only spent a relatively short period previously in New Zealand, and his lack of family members residing in New Zealand today, the Tribunal has weighed this consideration ultimately slightly weighs in favour of revocation of the cancellation.
It is necessary to weigh up all of the primary and other considerations:
·Primary consideration 1 weighs very heavily against revocation.
·Primary consideration 2 weighs very heavily against revocation.
·Primary consideration 3 weighs very slightly in favour of revocation.
·Primary consideration 4 is neutral.
·Primary consideration 5 weighs very heavily against revocation
·Other considerations (a), (c) and (d) are neutral.
·Other consideration (b) weighs slightly in favour of revocation.
Having regard to all the relevant circumstances, the Tribunal finds that the proper application of the Direction favours the Tribunal exercising the discretion to refuse to grant the Applicant’s Visa. The Tribunal finds that there is “another reason” pursuant to subsection 501CA(4)(b)(ii) of the Act to refuse to grant the visa.
Whilst the Tribunal accepts there are likely to be some limited impediments to the Applicant if he is removed from Australia, the Tribunal considers protection of the Australian community, and in particular the risk of the Applicant reoffending and causing further physical and psychological harm are such that that these considerations outweigh the other considerations. The Applicant has committed family violence on multiple occasions. There is an expectation by the community that the Australian Government can and should cancel the visas if a non-citizen raise serious character concerns from conduct that includes family violence, and the commission of serious crimes against women. The Tribunal is not satisfied that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 2 March 2023 not to revoke the mandatory cancellation of the RESPRESPOND’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for the decision herein of Deputy President Justin Owen.

...................................................................
Associate
Dated: 28 July 2023

Date of hearing:

17 July 2023

Representative for the Applicant:

Representative for the Respondent:

Self-represented

Ms C Lewis, Australian Government Solicitors

APPLICANTS LIST OF OFFENDING

Date of offence	Date of conviction	Offence	Sentence
29/07/2007	23/09/2008	Behave in riotous manner in public place	With conviction, fined an aggregate of $800
		Use threatening words in public place
01/01/2008	27/01/2009	Recklessly cause injury	With conviction, fined $650
15/08/2015	20/11/2015	Drive motor vehicle while licence suspended – 1^st off	Bond s 10: 18 months
08/12/2018	22/02/2019 Call up: 05/02/2020 Call up: 22/03/2021 Call up: 25/03/2022	Common assault (DV)-T2	Community Correction Order: 2 years Call up 2022: Imprisonment (aggregate): 12 months
		Contravene prohibition/restriction in AVO (Domestic)	Fine: $1,000 Community Correction Order: 2 years Call up 2022: Imprisonment (aggregate): 12 months
01/05/2019	05/02/2020 Call up: 22/03/2021 Call up: 25/03/2022	Contravene prohibition/restriction in AVO (Domestic)	Community Correction Order: 2 years Call up 2022: Imprisonment (aggregate): 12 months
		Destroy or damage property	Community Correction Order: 2 years Call up 2022: Imprisonment (aggregate): 12 months
04/05/2020	17/06/2020	Possess prohibited drug	Fine: $400
31/07/2020	11/11/2020	Possess prohibited drug	Fine: $150
19/09/2020		Possess prohibited drug	Fine: $400
26/06/2020	22/03/2021	Goods suspected stolen given other not entitled (not m/v)	Community Correction Order: 12 months
		Make/furnish a statement which is false/misleading	S 10A conviction
11/03/2021		Contravene prohibition/restriction in AVO (Domestic)	Imprisonment: 6 months
08/03/2021		Contravene prohibition/restriction in AVO (Domestic)	Imprisonment: 1 month
12/02/2021- 13/02/2021		Contravene prohibition/restriction in AVO (Domestic)	Imprisonment: 4 months
14/01/2022		04/03/2022	Common assault (DV)-T2	Fine: $750
		04/03/2022 Call up: 25/03/2022	Destroy or damage property <=$2000 (DV)-T2	Community Correction Order: 9 months Call up: Imprisonment (aggregate): 12 months
			Contravene prohibition/restriction in AVO (Domestic)	Fine: $500
			Stalk/intimidate intend fear physical etc harm (domestic)- T2	Community Correction Order: 18 months Call up: Imprisonment (aggregate): 12 months
24/03/2022		25/03/2022	Contravene prohibition/restriction in AVO (Domestic)	Imprisonment (aggregate): 12 months