Foleti and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 2081
•14 October 2025
Foleti and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2081 (14 October 2025)
Applicant:Maafu Lele Foleti
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4424
Tribunal:General Member S Evans
Place:Sydney
Date:14 October 2025
Decision:The Tribunal affirms the decision under review.
.........[SGD]..............................
General Member S Evans
CATCHWORDS
MIGRATION – Mandatory cancellation of Applicant’s visa – substantial criminal record –- Direction 110 – history of family violence offences – whether there is ‘another reason’ to revoke mandatory cancellation – citizen of Tonga – substantial risk of reoffending – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 165
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SECONDARY MATERIALS
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
STATEMENT OF REASONS
INTRODUCTION
Maafu Lele Foleti (the Applicant) is a 48-year-old Tongan national who has resided in Australia for 43 years, having migrated to Australia with his family when he five years old.
On 30 January 2024 the Applicant was convicted in the local Court of New South Wales at Mount Druitt of two counts of common assault (DV) and stalk/intimidate intend fear physical etc harm (domestic) and sentenced to an aggregate term of imprisonment of 30 months.
On 19 August 2024 the Applicant’s Class BB Subclass 155 Resident Return visa was mandatorily cancelled under s501(3A) of the Migration Act 1958 (Cth) (the Act) as he was deemed not to pass the character test by of the operation of s501(7)(c) and because he was serving a sentence of imprisonment, on a full-time basis, for an offence against the law of the Commonwealth, a State or Territory.
The Applicant requested the mandatory cancellation of his visa be revoked pursuant to s501CA(4). On 22 July 2025 a delegate of the Minister for Immigration and Citizenship (the Respondent) decided under not to revoke the mandatory cancellation of the visa. The Applicant seeks review of the delegate’s decision (the reviewable decision) at the Tribunal.
For the reasons that follow, the reviewable decision will be affirmed.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501CA of the Act applies where the Minister makes a decision under s501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of paragraphs 501(6)(a) and 501(7)(c) of the Act.
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Minister may revoke the original cancellation decision pursuant to s501CA(4) of the Act. Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under s501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under s499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)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.
(5)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.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may 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.
(7)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.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of Direction 110 identifies the considerations the Tribunal must take into account where relevant to a decision.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal is whether to revoke the original decision to cancel the Applicant’s visa pursuant to s 501CA(4) of the Act. Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
The Applicant agrees with the Respondent that he does not pass the character test by operation of s 501(6)(a) of the Act because he has a ‘substantial criminal record’ as defined in s501(7)(c). As the Applicant does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.
CONSIDERATIONS AND REASONING
Primary Consideration 1: Protection of the Australian Community
The Direction requires me to have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.(1) of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1.(1) provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2. requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct’.
Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1 of Direction 110 provides factors that I must have regard to when considering the nature and seriousness of the Applicant’s criminal offending or other conduct to date.
During the hearing, the Applicant was taken to police and court documents relating to his offending. The documents included NSW Police incident records and narratives produced under summons. He was asked to comment on reports of incidents alleged to have taken place or been reported on 14 September 2020, 2 December 2018 and 5 April 2017.[1] The Applicant gave evidence he could not recall the incidents, or denied the details as recorded by police, and they have not taken into account in making this decision.
[1] R2 39, 42, 57.
The Applicant has an extensive history of criminal offending which is detailed in a Check Results Report run on 10 July 2024 and set out at ‘Annexure A’ of these reasons.[2]
Recklessly cause serious injury offence
[2] G3, 40-44.
On 5 July 1997 the Applicant was involved in an altercation at a nightclub. The details of the offending are set out in the sentencing remarks of Judge Hassett in the Melbourne County Court. The Applicant, who was 20 years old at the time, intervened in an altercation between two people he did not know and sought to impulsively break up the incident. He took the ear of one of the men in his mouth and bit on it. The victim’s ear was lacerated and half of the bottom of the man’s ear was torn away. Judge Hassett, who was satisfied that the Applicant did not intend to bite the victims ear off, sentenced the Applicant to 15 months imprisonment (suspended for 2 years) for recklessly cause serious injury.[3]
Armed robbery offence
[3] G10, 85-93.
On 28 February 2000 and the Applicant appeared in the Melbourne County Court where he was sentenced in relation to offending which occurred on 15 May 1999. The Applicant and his co-offender went to the victim’s flat and accused one of the victims of stealing money owed for ecstasy tablets. The offenders obtained knives from the victim’s kitchen and at times the Applicant’s co-offender held the knives against each of the victim’s throats. Two of the victims had their hands tied behind their backs and their ankles bound, and all the victims were gagged. The Court found the incident was traumatic for all three victims, despite none of them receiving physical injury. After taking the property, the Applicant and his co-offender apologised for their actions and made off with the items they had stolen. The Applicant pleaded guilty to the crime and was sentenced to two years imprisonment for armed robbery with a non-parole period of nine months.[4]
Intention to cancel visa
[4] G9, 74-81.
On 15 May 2000 and 30 June 2004 the Applicant was notified by the Department that it was considering cancelling his visa pursuant to s 501 of the Act. On 2 December 2004 the Department notified the Applicant it would not cancel his visa and warned that disregard of the warning would weigh heavily against him should his case be reconsidered.[5]
Robbery with violence offence
[5] HB 128-130.
On 20 December 2005 the Applicant and another man assaulted and robbed a female taxi driver. On 4 August 2006 he was sentenced to a term of 3 years and 3 months imprisonment (10 months served; 3 years suspended) with a three-year probation order for Robbery with Actual Violence/In Company/Used Personal Violence and Attempted Robbery – Actual Violence/Overcome Resistance.[6]
Intention to cancel visa
[6] HB 64-76.
On 4 December 2006 the Department notified the Applicant that it was again considering cancelling his visa pursuant to s 501 of the Act. On 5 July 2007 the Department notified the Applicant that his visa would not be cancelled.[7]
2020 domestic violence offending
[7] HB 120-127.
On 7 July 2020 and 23 July 2020 the Applicant assaulted, intimidated, threatened and spat on his partner. The Applicant made video recordings of the incidents on his mobile phone. The following month the victim committed suicide and the Applicant discovered her body. After an inquest into her death, the videos on the Applicant’s phone were discovered.
The police facts in relation to the incident state that the Applicant recorded himself threatening to kill the victim in one recording in another recording he accused her of having sexual intercourse with her brother and tells her that she should never have lived this long.[8]
[8] HB 627-630.
On 24 January 2024 the Applicant was sentenced to 30 months imprisonment with a 22-month non-parole period for two counts of common assault (DV), and stalk/intimidate intend fear physical etc harm (domestic). The Applicant sought to appeal the decision which was upheld in the Parramatta District Court on 12 March 2024.
2023 domestic violence offending
On 28 November 2023 and 12 December 2023 the Applicant assaulted and threatened his partner. On 24 January 2024 he was sentenced to 3 months imprisonment for common assault (DV) and stalk/intimidate intend fear physical etc harm (domestic).[9] A police facts sheet records the details of the common assault and intimidation as follows:
[9] HB 59-63.
At 10:00am on Tuesday the 28th of November 2023, the accused and victim were at home in their granny flat. The accused began an argument with the victim about her borrowing money from her cousin. The accused continued to swear and get angry at the victim before punching her twice on the back of her head. The accused used his left hand as a closed fist when punching the victim. While this was occurring, the victim attempted to cover her head with her arms to protect herself.
The victim sustained bruising and swelling to the back of her head where she was hit and had to ice the injuries immediately after.
Offence 2: Intimidation
At 8:15pm on Tuesday the 12th December 2023, the accused and the victim were at home in the granny flat again when the accused asked for the victim's debit card to get money out.
The victim told the accused that she had locked her card as she did not want him taking her money.
This angered the accused and he started swearing at the victim demanding she unlock her card. The accused continued yelling, calling the victim a "gronk" and started to run at the victim. The victim ran from the accused into the main house, locking the door, as she was fearful that the accused was going to hit her again.
Police arrived at 12:30am and spoke to both parties separately. The victim disclosed to Police that these arguments are a regular occurrence every 2 weeks when the victim gets paid on a Tuesday. The victim stated that the accused has his own income, however likes to control the victim's money and documents such as licence, debit card and passport which he keeps in his wallet.
The victim believes that the accused takes drugs as his behaviour changes regularly and becomes more violent.
Police obtained a Domestic Violence Evidence in Chief (DVEC) statement off the victim in relation to the incidents. The victim informed Police that the injuries she sustained after the assault had now subsided.[10]
[10] HB 211-213.
The Applicant was taken to the police facts and denied that the arguments happened regularly as reported by the victim. He speculated that the victim may have told police they took place ‘every two weeks’ out of anger.
The Applicant acknowledges his offending is very serious and has occurred over an extended period of more than two decades.[11]
[11] Applicant’s SFIC.
The Applicant has been convicted of multiple violent offences, some where the victims have been women and others against his female partners. Subparagraph 8.1.1.(1) of the Direction provides that violent crimes, crimes of a violent nature against women and crimes of family violence are viewed ‘very seriously’.
In considering the impact of the offending on victims, I note the sentencing remarks of Judge Dearden in the Brisbane District Court who remarked that the female taxi driver who was the victim of the December 2005 robbery was damaged emotionally and physically, and subsequently unable to hold down full-time work.[12] The sentencing remarks in relation to the offending in November and December 2023 state that the victim ‘must have feared physical or mental harm at the time’.[13]
[12] HB 64-76.
[13] G9, 61-73.
Subparagraph 8.1.1(1) of the Direction requires the Tribunal consider the frequency of the Applicant’s offending and whether there is a trend of increasing seriousness. The Applicant has a long history of committing serious violent offences and has been imprisoned on multiple occasions. The sentences imposed upon the Applicant are indicative of an increasing seriousness in his offending.
I take into account that the Applicant continued to offend after being formally notified in writing on two separate occasions that the Department was considering cancelling his visa.
Having regard to the serious nature of the Applicant’s offending, the period over which the offending occurred, the escalating seriousness of his offending, the impact on the victims and his having previously been warned his visa may be cancelled, I find that the Applicant’s criminal conduct is very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I am required to consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of the Direction provides in part:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen re offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Should the Applicant engage in further violent offending of a similar nature to that which he has engaged in the past, it may result in severe short-term and long-term physical and psychological harm to members of the Australian community.
The Applicant submits that the underlying psychological and personal challenges he has faced throughout his life do not excuse his criminal behaviour but have significantly contributed to his very serious violent offending. The Applicant claims that his underlying mental health issues include a diagnosis of bipolar disorder. In his personal circumstances form he writes he comes from a broken home, does not know who his father is, and has faced considerable personal challenges throughout his life.[14]
[14] HB 115.
The Applicant submits that his addiction, mental health and personal challenges played a significant role in shaping his behaviour over the years and provide context for understanding the nature and persistence of his offending.
There is substantial evidence supporting the Applicant’s contention that his offending is closely tied to his alcohol and drug abuse.
In sentencing the Applicant on 24 September 1999, Judge Hasset told the Applicant it was important he overcome his addiction to amphetamine for his own sake - and that of the community - because his continued use would almost certainly lead him to reoffend.[15]
[15] HB 93.
The role of his drug abuse was identified by the Court in sentencing the Applicant on 28 February 2000 for the armed robbery offence. Judge Nixon said that the Applicant, who was 23 years old at the time, had a complicated family history. The sentencing remarks refer to a psychological report which confirmed the Applicant was the oldest of seven children from three separate fathers. The Applicant had limited schooling and was ‘of very limited intelligence but not so intellectually incapacitated that [he] was incapable of learning.’[16] The Applicant’s substance abuse began when he was 18 or 19 years old it had been a feature and dominant part of his life. He regularly used amphetamines and tranquilizers, and ecstasy tablets also played a significant part in his life and lifestyle. He drank very large quantities of alcohol, and at that time was drinking a bottle of spirits each day. His Honour said that the Applicant’s excessive drinking and use of drugs on a regular basis had proven catastrophic for him. The Applicant had had an accidental overdose when he combined heroin with Valium, and had attempted suicide prior to a previous court appearance. Judge Nixon observed that while the Applicant’s use of heroin had been modest, he was raped at the age of 20 after he was given heroin laced with Rohypnol.[17]
[16] G9, 78.
[17] HB 77-84.
A psychological report dated 3 August 2006 stated the Applicant ‘has a serious substance abuse disorder that is maintained by long-standing and unresolved psychological problems.’[18] It is reported that the Applicant acknowledged his drug addiction contributed significantly to his offending behaviour and stated ‘every time I get them (pills) I get into trouble ... I'm never gonna touch them again.’[19] Queensland Corrective Services identified that the Applicant’s drug and alcohol use was associated with his criminal activity in 2006 while he was serving a term of imprisonment for robbing the taxi driver.
[18] R2, 328.
[19] R2, 331.
The Applicant has been receiving Depot Buprenorphine as treatment for his drug abuse and he reports he no longer experiences cravings to use drugs. He gave evidence that he has not used drugs or alcohol since commencing the treatment and has to date experienced the longest period of sobriety in his adult life.
In terms of rehabilitation, the Applicant has provided evidence of having recently successfully completed education and rehabilitation courses including EQUIPS Domestic and Family Violence Program on 15 August 2025 which addressed issues of domestic and family violence. In May 2025 he completed a drug awareness course, emotional well-being program and a thinking skills course. In March and April this year he participated in general education courses to prepare for reintegration into the community and workforce which he reports improved his basic education, literacy skills and employability. He has attained first aid and CPR certificates and participated in the Respectful Relationships and Breaking the Cycle of Reoffending program. He also participated in the Beware Program to directly address his past drug use, which he reports has provided a stronger understanding of addiction and tools to manage triggers.[20]
[20] R2 864-872.
Psychological case notes prepared in August 2025 by a corrections officer state that the Applicant had previously been prescribed medication for an unspecified mental health condition, but it had been ineffective in stabilising his mood. The report also notes that the Applicant described a history of psychotic symptoms in the context of ice abuse. The symptoms stopped when the Applicant was not using ice. The report’s author considered the symptoms indicative of social anxiety rather than a psychotic disorder. The author also noted the Applicant reported a history of attempts to take his own life by overdosing, and had self-harmed to ease emotional distress.[21]
[21] R2 456-461.
During the hearing the Applicant was taken through his offending history and he expressed remorse. He said he felt guilty towards the victims of his offending including the man whose ear he bit, the armed robbery victims, and the taxi driver he robbed and later wrote a letter of apology to. He said he took full responsibility for his conduct and was deeply remorseful for his offending and the harm he had caused the victims. He said that since being incarcerated he has come to appreciate the freedom that he had.
I note that in sentencing the Applicant on 30 January 2024, Magistrate Chisholm noted that his guilty plea was only entered on the day of the hearing. Further, he did not cooperate with community corrections in preparing a sentence assessment report which had been requested by the Court. Her Honour considered his refusal was not indicative of genuine remorse or commitment to rehabilitation.[22]
[22] HB 50-57.
The Applicant said that he does not intend to reoffend and needs to be in close proximity to his family to maintain stability. I do not have the benefit of a formal assessment in relation to the risk of the Applicant reoffending. The Applicant submits he has genuine insight into his offending for which he is remorseful. He claims to be committed to becoming a responsible, productive, and law-abiding member of society. The Applicant has identified protective factors which include the rehabilitation courses he has undertaken, his intention not to reoffend, his continued abstinence from drug abuse and the support of his family. While the Applicant’s mother and siblings reside in Australia, it is unclear what support they may provide the Applicant in the context of his offending should he return to the community. He claims to have developed a stronger understanding of addiction, obtained tools to manage triggers which may lead to drug use, and reports he no longer experiences cravings for methamphetamine.
I am mindful that the rehabilitation the Applicant has undertaken is very recent and for the most part has commenced following the mandatory cancellation of his visa. Despite his long offending history, entrenched substance abuse, and the harm the Applicant’s conduct has caused to both himself and others over many years, there is scant evidence to support his submission that he has demonstrated substantial progress or that rehabilitation has been consistent and ongoing that should be viewed as strong evidence that he is committed to change.[23]
[23] Applicant’s SFIC [38]-[40].
Having regard to the evidence I have outlined, I consider there is a significant and real risk that the Applicant may reoffend should his visa be reinstated. The Applicant has not been deterred from offending by his past convictions or the prospect of having his visa cancelled. He has known for two decades that his substance abuse was a key contributor to his offending, but there remains limited evidence of meaningful rehabilitation given the extent and duration of his substance abuse and its devastating consequences. Overall, the protective factors he has cited are insufficient in the context of his extensive offending history.
Protection of the Australian community – conclusion
I find there is a real and significant risk that the Applicant may reoffend should he return to the Australian community. The harm caused by further offending of a similar nature would be very serious. The primary consideration of the risk to the Australian community weighs very heavily against revoking the mandatory cancellation of the Applicant’s visa.
Primary consideration 2: Family Violence committed by the non-citizen
Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
Subsection 8.2(1) of Direction 110 provides that the Australian government has ‘serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia’.
Paragraph 8.2(3) of the Direction specifies the following factors must be considered where relevant when considering the seriousness of family violence:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the noncitizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
The Applicant accepts that his conduct against his former partners constitutes family violence as defined in the Direction and that it is serious.[24] I have outlined the serious nature of the Applicant’s family violence conduct above. The Applicant’s family violence conduct occurred as recently as November and December 2023, and an Apprehended Domestic Violence Order remains in place to protect the victim with respect to the 24 January 2024 convictions.
[24] Applicant’s SFIC [45].
I accept the Respondent’s submission that the Applicant’s repeated and escalating family violence conduct warrants this primary consideration weighing significantly against revocation.
Primary Consideration 3: The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on the Applicant’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. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has resided in Australia since he arrived as a five-year-old child and has lived in Australia for almost his entire life.
The Applicant has identified his mother, five siblings, nephew, two uncles, and cousin as immediate family members in Australia. He said that all of his family members wish for him to stay in Australia and that they will miss him should he return to Tonga.
The Applicant gave evidence that he was anticipating receiving a statement of support from his current partner. The Applicant has been unable to contact his partner directly due to the current ADVO. He told the Tribunal his legal representative had arranged for her to provide a statement of support; and he understood that a statement had been provided. However, a statement from the Applicant’s partner is not in evidence.
In addition to the family members listed in his submission, the Applicant gave evidence at the hearing that he has a 27-year-old son who resides with his mother in Melbourne.[25] He said he had not had contact with his son, who did not know he was in jail, for 18 months. The Applicant gave evidence that he is close to his mother. He said he regularly travelled to Melbourne to visit his family and his mother often came to visit him in Sydney.
[25] R2 855 [51].
The Applicant said his younger brother was involved in the serious car accident and is cared for by their mother. He claims to have provided financial support to his mother and brother and hopes to help his mother look after his brother should he return to the community.
No members of the Applicant’s immediate family have provided statements in support of the Applicant, and the Applicant himself has provided very little information. Nonetheless, I accept that should the Applicant’s visa remain cancelled his immediate family members including his mother, siblings, nephew, uncles, cousins and son would be expected to suffer emotional hardship, particularly as the Applicant has spent most of his life in Australia. There is very limited evidence that the Applicant has contributed to the community through paid employment, but I note there is reference to him having worked in security and he has submitted he was employed in construction industry.
Having particular regard to Applicant having lived in Australia for most of his life and from a very young age, this primary consideration weighs heavily in favour of revocation.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires the Tribunal to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has identified his nephew as a minor child who would be affected by the cancellation of his visa. The Applicant submits that he maintains a meaningful relationship with his nephew. He has not provided further written evidence in support of his claim, but at the hearing he told me that his nephew resides in Sydney is the his late brother’s son.
The Applicant also gave evidence that he lived with his nephew until he was two years-old and helped raise him until he and his mother moved out of the house they shared. He says he maintains a positive relationship with his sister-in-law - who continues to care for his nephew - and they spoke regularly until he was imprisoned. He confirmed that he last saw the child 18 months ago.
The best interests of the Applicant’s nephew are that he is able to maintain contact with the Applicant, particularly given the passing of the child’s father. Having regard to the long period during which the Applicant has been absent from the child’s life, and that he is cared for by his mother, I afford this primary consideration limited weight in favour of revoking the cancellation of the visa.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather the Tribunal must give effect to the ‘norm’ stipulated in the Direction.[26]
[26] See FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [75] (Charlsworth J).
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 in the Direction, without independently assessing the community's expectations in the particular case.
The Applicant has failed to meet the Australian community’s expectation that visa holders obey its laws. I accept the Respondent’s contention that the nature of the Applicant’s offending – which relevantly includes acts of family violence and the commission of crimes against women - is such that the Australian community would expect the Applicant should not continue to hold a visa.
Having regard to the Direction and taking into account the serious nature of the Applicant’s offending and the sentences imposed, this consideration is afforded moderate weight in favour of not revoking the mandatory cancellation of the Applicant’s visa.
OTHER RELEVANT CONSIDERATIONS
Legal consequence of decision under section 501 or 501CA
Paragraph 9.1 of Direction 110 states that decision-makers should be mindful that the legal consequences of a decision to cancel an applicant’s visa are that the Applicant will be liable to removal from Australia pursuant to s 198 of the Act, and in the meantime, subject to detention under s 189 of the Act. Section 197C(1) of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Applicant submits that this consideration should be given weight in favour of revoking the cancellation of his visa because cancellation would render him ineligible to apply for a substantive visa other than a protection visa, he will be placed in immigration detention until his removal from Australia, and he will be permanently excluded from Australia.[27]
[27] Applicant’s SFIC [67] – [68].
The Applicant does not make any claims for protection and there is nothing in evidence that indicates Australia’s non-refoulement obligations may be engaged. Should the Applicant’s visa remain cancelled, he must be detained under s189 of the Act and removed from Australia in accordance with s198 of the Act. He will also be prevented from applying for visas other than a protection visa or a Bridging Visa R while in Australia. In the likely event he is removed, it is unlikely that he will be able to return to Australia.
Having regard to the consequences identified by the Applicant, this consideration is afforded limited weight in favour of revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Applicant submits that he has no family overseas and no connections in Tonga. Should he return to Tonga, he will be required to start over without any support from friends or relatives. He fears being homeless and anticipates that he would have no money.
At the hearing the Applicant and said that his mother took him to Tonga for approximately 10 months when he was 16 years old to meet relatives. He said that his relatives in Tonga have since moved to America, New Zealand or Australia.
Having resided in Australia since he was five, the evidence supports the Applicant not having family or other existing connections he could rely on should he return to Tonga. He would also be expected to face some language and cultural barriers in Tonga having lived in Australia for 43 years. Although the Applicant confirmed he has a history of employment in the construction industry and security, I note his limited literacy may be an impediment to his obtaining employment and establishing himself in Tonga.
I find that the Applicant would be expected to face considerable difficulty establishing himself in Tonga without existing support or connections.
The Applicant is 48 years old and claims to have been diagnosed with bipolar disorder and depression, which is currently not medicated. The Applicant has long-standing substance abuse and dependency issues. He is currently receiving Buprenorphine to treat his drug addiction and indicated he takes medication for diabetes.
Should the Applicant return to Tonga he would be able to access the Tongan health and welfare systems, which the Respondent concedes may be less effective than those in Australia. It is unclear if he would continue to receive Buprenorphine in Tonga, and if so whether the treatment would continue uninterrupted. I also anticipate that being removed to Tonga would lead to a deterioration in the Applicant’s mental health.
I consider that the Applicant would be expected to experience considerable difficulty establishing himself in Tonga and can expect to be socially isolated initially. Relocating to Tonga may also be detrimental to his mental and physical health.
This consideration weighs heavily in favour of revoking the cancellation of the visa.
CONCLUSION
I have considered the specific circumstances of the Applicant against the considerations identified in the Direction. In balancing the primary and other considerations, the protection of the Australian community weighs very heavily against revoking the cancellation of the Applicant’s visa as the Applicant has a long history of violent offending and there is a significant risk he may reoffend. The nature of the Applicant’s offending includes family violence and is such that the Australian community would expect his visa to be cancelled. The primary consideration of the family violence committed by the Applicant weighs against revocation and is afforded significant weight. The expectations of the Australian community weigh moderately against revocation of the visa cancellation.
The Applicant has been in Australia for over 43 years having arrived as a child. I take into account that the Australian community may 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.[28] Despite the limited evidence regarding impact of the Applicant’s removal on his family in Australia, the strength nature and duration of his ties to Australia weigh very heavily in favour of revocation. The best interests of the Applicant’s nephew are served by having the Applicant stay in Australia, and this consideration is given limited weight in favour of revocation. The legal consequences of the decision also weigh in favour of revocation and are afforded limited weight.
[28] Direction 110, p 5.2(6).
Removal to Tonga will be difficult and challenging for the Applicant as he will be isolated and without existing supports he can rely on. The impediments he will be expected to face weigh heavily in favour of revoking the cancellation decision.
On balance, I find that there is not another reason to revoke the cancellation of the Applicant’s visa. As such, the reviewable decision will be affirmed.
DECISION
For the reasons outlined above, the reviewable decision is affirmed.
Date(s) of hearing: 2 October 2025 Applicant: In person Solicitors for the Respondent: Simon Knuckey, HWL Ebsworth Annexure A
Court Date Offence Result Paramatta District Court (H89755188) 12/03/2024 Stalk/Intimidate Intend Fear Physical etc Harm (Domestic)T2
Common Assault (DV) T2 Common Assault (DV) T2
Imprisonment (aggregate): 30 months Commencing: 30/01/2024 Concluding: 29/07/2026
Non-parole period: 22 months Commencing 30/01/2024 Concluding 29/11/2025
Mt Druitt Local Court (H89755188) 30/01/2024 Stalk/Intimidate Intend Fear Physical etc Harm (Domestic)T2
Common Assault (DV) T2 Common Assault (DV) T2
Imprisonment (aggregate): 30 months Commencing: 30/01/2024 Concluding: 29/07/2026
Non-parole period: 22 months Commencing 30/01/2024 Concluding 29/11/2025
Severity appeal lodged
Bankstown Local Court (H170245401) 24/01/2024 Stalk/Intimidate Intend Fear Physical etc Harm (Domestic)T2
Common Assault (DV) T2
Imprisonment: 3 months Commencing: 13/12/2023 Concluding: 12/03/2024 Paramatta Local Court (H78835049) 30/09/2023 Drive with Middle Range PCA - 1st Off Fine: $750 Disqualification
Driver: 3 months participation Alcohol interlock program: 12 months
Downing Centre Local Court (H77475372) 23/02/2021 Enter enclosed Land Not Presc Premises
W/O Lawful Excuse
Fine: $330 Blacktown Local Court (H68773768) 23/12/2020 Stalk/Intimidate Intend Fear Physical etc Harm (Domestic)T2 Fine: $880 Downing Centre Local Court 08/08/2019 Assault Occasioning Actual Bodily Harm (DV) T2 Fine: $1,000 Brisbane Magistrates Court 27/04/2016 791(2) Contravene
Direction or Requirement (on 28/10/2015)
11(1) Trespass - Entering
or Remaining in Dwelling or
Conviction Recorded Fined: $200
Conviction recorded Fined: $300.00
Yard
177(2) Contravention of Domestic Violence Order
9 Possessing Dangerous Drugs 9 Possessing Dangerous Drugs
Conviction Recorded Fined: $2,000 Brisbane Magistrates Court 08/08/2014 Commit Public Nuisance Conviction Recorded Fined: $300 Brisbane Magistrates Court 06/02/2013 Commit Public Nuisance Conviction recorded Fined: $400 Gladstone Magistrates Court 29/01/2009 Breach of Probation Order
(re: Attempted Robbery - Actual Violence/Overcome Resistance)
Breach of order: conviction recorded Fined: $200.00 Caboolture Magistrates Court 17/08/2006 CC Robbery with Actual Violence Armed/In Company/ Used Personal Violence
Contravene direction
On each charge:
No evidence to Offer Dealt with Ex-Officio
Brisbane District Court 04/08/2006 CC Robbery with Actual Violence Armed/In Company/ Used Personal Violence
CC Attempted Robbery - Actual Violence/Overcome Resistance
Imprisonment: 3 years 3 months (Suspended for 3 years - after serving 10 months imprisonment)
Probation 3 years
Special conditions: to undertake such medical, psychological and/or psychiatric treatment, counselling and/or courses in respect of addiction to drugs and alcohol as directed
Summary offences dealt with under s651 No further penalty imposed
Melbourne Magistrates court 17/07/2003 Fail to answer bail
Recklessly cause serious injury
Community based order for 6 months To perform 125 hours of unpaid community work over 6 months.
All core community based order conditions to apply.
Community based order for 6 months. To perform 125 hours of unpaid community work over 6 months.
Melbourne County Court 12/04/2000 Recklessly cause injury common law assault 6 months imprisonment on each count. Total 12 months Melbourne County Court 28/02/2000 Armed robbery 2 years imprisonment Melbourne County Court 24/09/1999 Recklessly cause serious injury 15 months imprisonment
Sentence suspended for 2 years under s 27 of the Sentencing Act
Moonee Ponds Magistrates Court 06/10/1995 Wilfully damage property (3 charges)
Intentionally damage property (3 charges)
Unlawful assault
All charges without conviction adjourned to 06.10.1996
To pay $500 to court fund
All charges without conviction adjourned to 06.10.1996
To pay $500 to court fund
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