Foliaki and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 991
•27 June 2025
Foliaki and Minister for Immigration and Citizenship (Migration) [2025] ARTA 991 (27 June 2025)
Applicant:Sesoni Foliaki
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3168
Tribunal:General Member R. West
Place:Melbourne
Date:27 June 2025
Decision:Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision of the delegate of the Respondent of 4 April 2025 not to revoke the cancellation of the Applicant’s Class TY (subclass 444) Special Category (Temporary) visa.
........................................................................
General Member R. West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – Direction 110 – primary considerations – protection of the Australian community from criminal or other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Cases
BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730
CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
Tera Euna and Minister for Immigration and Border Protection (Migration) [2016] AATA 301
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
PQSM and Minister for Home Affairs (Migration) [2019] AATA 603
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
Re Harrison v Minister for Immigration and Citizenship [2006] AATA 47
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Statement of Reasons
This matter concerns an application for review of the decision of a delegate of the Respondent not to revoke the cancellation of the Applicant’s Class TY (subclass 444) Special Category (Temporary) visa (the Visa) under section 501CA(4) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The Applicant is a citizen of New Zealand. He first arrived in Australia in January 2020 for a stay of 24 days. He subsequently returned to Australia on 4 July 2020 at the age of seventeen[1].
[1] G13 at p.142
On 23 November 2023, the Applicant was convicted of four separate offences and sentenced to an aggregate term of imprisonment of 4 years and 6 months[2].
[2] G4 at p.50
On 3 September 2024, the Applicant’s Visa was cancelled under section 501(3A) of the Act (Cancellation Decision) and the Applicant was notified of the cancellation and invited to make representations about revocation[3].
[3] G14 at p.143
On 17 September 2024, the Applicant sought revocation of the cancellation of the Visa and made representations to the Respondent as to why the cancellation of the Visa should be revoked[4].
[4] G9 at p.94
On 4 April 2025, a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Visa (Reviewable Decision)[5] and notified the Applicant of the decision on 8 April 2025[6].
[5] G3 at p.33
[6] G16 at p.174
On 16 April 2025, the Applicant applied to the Tribunal for review of the Reviewable Decision (Application)[7].
[7] G2 at p.5
HEARING
The Tribunal conducted a hearing of the Application on 24 and 25 June 2025 by video-conference. The Applicant was represented by Mr Siosiua Sila Tohotoa, a migration agent. The Respondent was represented by Ms Anis Rezae, a solicitor.
In conducting the review, the Tribunal had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to section 501G of the Act, numbered G1 to G16 and paginated from pages 1 to 174 (G Documents), and further documents produced under summons sequentially numbered TB1 to TB2 and paginated from pages 1 to 50 (TB Documents);
(b)a Statement of Facts, Issues, and Contentions produced by the Respondent (RSFIC);
(c)a written Submission produced by the Applicant dated 19 June 2025 (Part 1) (ASFIC);
(d)documents tendered by the Applicant and listed as exhibits in the Schedule; and
(e)the oral evidence of:
(i)the Applicant;
(ii)Mr Kafusi Moataane;
(iii)Mr Sione Moa;
(iv)Ms Silila Moa;
(v)Ms Rosamona Tuimoala;
(vi)Mr Utoikamanu Fotu;
(vii)Mr Alan Tuuholoaki;
(viii)Ms Keleni Foliaki; and
(ix)Ms Maliame Foliaki[8].
[8] The witnesses were assisted by a Tongan/English interpreter
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a) the Applicant passes the character test (as defined by section 501); or
(b) there is another reason why the cancellation should be revoked.
Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a ‘substantial criminal record’, which is defined in section 501(7)(c) to include having been ‘sentenced to a term of imprisonment of 12 months or more’.
On 23 November 2023, the Applicant was convicted in the Perth District Court of Aggravated home burglary and commit and sentenced to 2 years and 9 months imprisonment to be served concurrently with sentences imposed for other offences. As a result, the Applicant has a ‘substantial criminal record’ as defined in section 501(7)(c). He, therefore, fails the character test under section 501(6)(a).
Accordingly, the sole issue before the Tribunal is whether, under section 501CA(4)(b)(ii), there is another reason why the mandatory cancellation of the Applicant’s Visa should be revoked. That reason:
... must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.[9]
[9] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [64] per Colvin J.
DIRECTION 110
On 7 June 2024, the Minister issued Direction No. 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 110) to commence operation from 21 June 2024. Direction 110 provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s Visa should be revoked.
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the direction.[10]
[10] See Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at [17].
Paragraph 6 of Part 2 of Direction 110 provides that decision-makers must take into account the considerations identified in paragraphs 8 and 9 where relevant to the decision within the framework provided by the principles stated in paragraph 5.2.
Paragraph 8 of Part 2 sets out the five primary considerations:
(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;
(5) expectations of the Australian community.
Paragraph 9(1) of Part 2 sets out other considerations. These include, but are not limited to:
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests.
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations and specifically provides that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 8.1(2) of Part 2 of Direction 110 requires decision-makers to give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and Seriousness of the Applicant’s Conduct to Date
Nature of the Conduct
A complete statement of the Applicant’s criminal record as reported by the Australian Criminal Intelligence Commission on 31 March 2025 was included in the G Documents.[11]
[11] G4 at pp. 49-50.
On 23 November 2023, the Applicant was convicted in the Perth District Court of the following offences:
(a) Aggravated home burglary and commit – sentenced to 2 years and 9 months imprisonment from 1 November 2023 (cumulative);
(b) Attempted aggravated home burglary with intent – sentenced to 12 months imprisonment from 1 November 2023 (concurrent);
(c) Aggravated home burglary and commit – sentenced to 21 months imprisonment from 1 November 2023 (cumulative); and
(d) Armed robbery – no order/penalty.
The circumstances of the offending for which the Applicant was convicted on 23 November 2023 were set out in the sentencing remarks of Her Honour Deputy Chief Justice Sweeney (DCJ Sweeney)[12].
[12] G5 at pp. 51-85.
Her Honour noted that the charges faced by the Applicant related to conduct on two separate days, 18 and 25 February 2022.
In relation to 18 February 2022, the Applicant was charged with aggravated home burglary, attempted aggravated burglary and aggravated armed robbery. Her Honour described the factual basis for the attempted aggravated burglary charge as follows:
This occurred in the early morning of 18 February 2022 at around 2.30 am when the occupants, a couple in their mid-20s, were both at home and in bed asleep. The two of you and three others went to the house in Thornlie in a Commodore which you, Mr Foliaki, were driving. You went there with the intention of getting into the house and stealing.
You, Mr Foliaki, were told to park a few houses away, which you did. The others exited the car and approached the house. You stayed in the car and reclined your seat so that you were lying down, obviously so as not to be visible. One of your accomplices walked towards the front door and turned a CCTV camera to the left, obviously so that you wouldn't all be captured on film. Mr Aiafi stood next to the front door and acted as a lookout, while accomplices attempted to get inside the house through a window.
One of those accomplices made a loud bang, which caused everyone to run back to the car, and then you took off.
Her Honour described the factual basis for the remaining charges as follows:
The facts are that at around 11.40 am the same day, the group has gone back in the Commodore to the same house.
By this stage, the young man, the occupant of the house, had left the house and gone to work, but his girlfriend Ms B was still at the house and she was in the bathroom having a shower. Mr Aiafi remained with the Commodore to be the driver, while the three of you and two others left the car and walked towards the house. You were all wearing dark clothing and balaclavas or masks to cover your face, and the group was armed with hammers and small axes.
You all walked up the driveway and into the rear garden and smashed a rear glass sliding door to get in, and you, Mr Kickett, cut your hand on broken glass and left your blood at the scene. Ms B, who'd been in the shower, heard glass shatter and came out to check the noise, and then she realised there were people inside the house. She ran towards her bedroom, but she was followed by the group and one of the group held a hammer above his head as he approached her.
She fell backwards onto a bed frame, which caused her top to fall down. The statement of material facts says that she was embarrassed, as her breasts were exposed. She was more than embarrassed, she was terrified that she was going to be raped. Her statement tells me that when her top fell down, there were four men in the room with her, all she could think was that she was hoping they didn't rape her and that they would just take what they wanted without hurting her.
I don't know why that's not mentioned in the statement of material facts, it is something that no one could possibly deny, it is what she was thinking at the time. Four of the group were in the bedroom with her and stood over her, demanding that she hand over money and jewellery. One of the group told her to remove the rings on her hands and hand them over. She tried to explain they belonged to a grandmother and they weren't worth much, but one of the group raised an axe above his head and said:
Give them to me or I'll hurt you.
She says in her statement, at that stage, she was terrified for her life. The group of you stole a number of items, including an Xbox, a Nintendo console, Nike shoes and jewellery, and a safe containing about $6,000, and then you all left and got back in the Commodore and Mr Aiafi drove off.
In relation to 25 February 2022, the Applicant was charged with aggravated home burglary and aggravated armed robbery. Her Honour described the factual basis for charges as follows:
At 10.30 pm, you, Mr Foliaki, drove Mr Aiafi, you, Mr Kickett, and three others to the victim's house in Southern River. The victim, 44-year-old Mr L, was at home.
You, Mr Foliaki, parked near his driveway, you stayed in the car to be the getaway driver. You, Mr Kickett, also remained in the car. Meanwhile, Mr Aiafi and three others got out of the car and walked around the driveway.
The group who entered the house were all wearing dark clothing and balaclavas to cover their faces and were armed with hammers, machetes and small axes.
The group which is alleged to include Mr Aiafi walked towards the garage, smashed a rear glass sliding door and entered the house. When the victim heard glass smashing, he walked towards the noise to investigate and found four men inside of his house. One of them pushed him back towards the living room and another hit him to the knee.
The statement of material facts doesn't say with what, but it is apparent he was hit with an object; he says it was the back of a small axe, which is what makes sense of the facts.
He asked, "Who are you?" and one of the group, who was armed with a machete, said, "Shut up or I'll cut your throat." At that point, one of the group put a plastic bag over his head and one of them shouted at him, "Where is the safe?" The victim persuaded them to take the bag off so they could make him lead the group upstairs to an empty bedroom where he kept an empty gun safe.
And upon realising the safe was empty, some of the group started punching him all over the body, as though it was somehow outrageous of the victim to have not had cash or valuable items that they could steal and so he should be punished.
One of them said to him, "Because you've got no money, where are your Merc keys?" And one of them searched the victim's pocket and found the keys, and the group then ran out of the house. Mr Aiafi and someone else in that group returned to the Commodore and got in, and then you, Mr Foliaki, drove off, while a remaining two offenders stole the victim's Mercedes-Benz from his garage and drove away separately.
Her Honour noted in her sentencing remarks that the aggravated burglary charge captured all of the facts of the aggravated robbery charge and, accordingly, Her Honour determined that she would not pass any sentence in relation to the armed robbery charges.
The Applicant’s participation in the offending on both 18 and 25 February 2022 was primarily as a getaway driver, but he did enter into the house during the second incident on 18 February 2022 and was present when the group intimidated the young woman involved.
In the offending on 25 February 2022, the Applicant was not charged with the offence of deprivation of liberty relating to putting a plastic bag over the victim’s head and the theft offence related to stealing the victim’s car. The sentencing remarks confirm that the Applicant was not present in the house when that conduct occurred as he remained in his car outside as a getaway driver. However, the Applicant confirmed in his oral evidence that he was wearing a mask or balaclava and was armed while in the car. DCJ Sweeney made it clear that she regarded the Applicant as criminally responsible for the burglary and the armed robbery inside the house on 25 February 2022 on the basis that… you all had a common intention to enter that house without consent and steal money and valuable items in circumstances in which you knew or ought to have known someone was home.[13]
Seriousness of the Conduct
[13] G5 at p. 59
Paragraph 8.1.1(1) of Part 2 of Direction 110 provides a description of what is considered ‘very serious’ and ‘serious’ conduct. Paragraphs 8.1.1(1)(a)(i)-(iii) list certain crimes which are to be regarded as ‘very serious’ and include crimes of violence and particularly crimes of violence against women.
On 18 February 2022, the Applicant was a direct participant in the incident. The court found that the Applicant and the co-offenders entered the victim’s home wearing dark clothing and balaclavas or masks to cover their faces and were armed with hammers and small axes. A number of the group confronted the victim in her bedroom, a vulnerable situation, inflicting a minor injury and causing her to reasonably fear that she would be raped or physically assaulted. The Applicant claimed in his oral evidence that he did not enter the victim’s bedroom and remained in the kitchen throughout the incident. The Tribunal notes that DCJ Sweeney did not make any specific findings regarding the participation of any of the offenders. Her Honour observed that:
The difficulty with everyone's version of events, that is, the people here today and Mr Aiafi - because you've all given versions of events - is that if you're all telling the truth, it's a mystery how - as to how the offence occurred: because if none of you really wanted to be there, if all of you disapproved of what was happening to the girl, and one of you did anything all just stood back, it does seem surprising that there were four men in the bedroom, two of whom were very threatening, and all of whom were rummaging in the bedroom.
Given the Court’s findings, the Tribunal is not in a position to make any findings regarding the Applicant’s participation in the offending other than that he entered the victim’s house with his co-offenders wearing a mask or balaclava and armed with a hammer or small axe. The Applicant admitted to these facts in his oral evidence. Whether or not the Applicant was present in the victim’s bedroom or was involved in the threatening conduct directed at the victim, the Tribunal is satisfied that he was a participant in the commission of a serious crime involving violence against a woman.
The Applicant was not a direct participant in the violence on 25 February 2022, but he was criminally responsible because of his involvement in the commission of the crime.
The offences of aggravated home burglary committed on 18 and 25 February 2022 were crimes of violence and the offence on 18 February 2022 was against a female victim.
The descriptions of serious crimes given in paragraphs 8.1.1(1) are not exhaustive, and paragraphs 8.1.1(1)(c)-(i) set out a range of factors decision-makers must consider in assessing the nature and seriousness of the criminal offending or other conduct to date. This includes, for relevant purposes in this case:
(a)the sentences imposed by the courts for a crime or crimes;
(b)the impact of the offending on victims and their family;
(c)the frequency of the Applicant’s offending; and
(d)the cumulative effect of any repeated offending.
A clear indicator of the seriousness of the Applicant’s offending is that he received an aggregate sentence of 4 years and 6 months imprisonment.
Custodial sentences reflect the objective seriousness of the offences involved and are generally a last resort in the sentencing hierarchy[14]. DCJ Sweeney noted that the Applicant was 18 years old at the time of the offending and commented that courts are generally concerned about putting young people in prison but sometimes offences they commit are so serious that they eclipse the person’s youth as a factor in mitigation.[15]
[14] See PQSM and Minister for Home Affairs (Migration) [2019] AATA 603 at [46]; Re Harrison v Minister for Immigration and Citizenship [2006] AATA 47 at [63]; see also BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730 (6 April 2023) at [80].
[15] G5 at p. 65
In her sentencing remarks, DCJ Sweeney commented generally on the seriousness of the offending:
Both of those aggravated home burglaries are very serious examples of a burglary. In the first burglary, the young woman was not harmed, apart from a graze she got when she first fell back onto her bedframe. But she was a young woman, home alone, surrounded by men who were wearing balaclavas and armed and threatening her. It was a most traumatic and terrifying incident.
The second burglary was even more serious. Anyone who was involved in the second burglary, including those who sat in the car, did so against the backdrop of knowing how the first burglary had occurred, namely that there'd been someone home. But having had a week to think about that, you went along with the second burglary using the same methods, where a man was injured, threatened and traumatised.
Paragraph 8.1.1(1)(e) of the Direction provides that the frequency of the Applicant’s offending and whether there is a trend of increasing seriousness must be taken into account.
The Applicant’s offending was repeated. Initially on 18 February 2022, the Applicant and his co-offenders were deterred from entering the victim’s house, but they later returned and committed offences in which they stole property and caused the victim to suffer a minor physical injury and to fear for her safety. Days later, on 25 February, the Applicant and his co-offenders repeated the offending.
On the second occasion, the physical assault on the victim was more severe and the magnitude of the theft was greater than on 18 February 2022. The Tribunal accepts that, while the seriousness of the offending itself escalated, the actual conduct of the Applicant on the 25 February 2022 did not involve direct participation in the assault on the victim or the theft of the motor vehicle and was, therefore, not an escalation in the seriousness of his conduct on 18 February 2022.
Nevertheless, the fact that the Applicant participated in the offending on 25 February 2022, knowing what had happened on 18 February 2022, satisfies the Tribunal that he was a willing participant in the escalation of the criminal conduct.
Having regard to these matters, the Tribunal is satisfied that the Applicant’s past criminal conduct was very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct
Paragraph 8.1.2(2) of Part 2 of Direction 110 requires the decision-maker, in assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, to have regard, cumulatively, to:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
Nature of the Harm
The offending for which the Applicant was convicted had serious consequences for the victims.
Her Honour DCJ Sweeney described the effect on the victim of the offending on 18 February 2022 as follows:
In her victim impact statement, Ms B says her life has completely changed and she is unable to feel good, unable to trust anyone and unable to move on with her life. She says from the moment she wakes up to the moment she falls asleep, she feels terribly saddened that her happy life has been taken from her. She says she became angry and felt guilty that she couldn't do anything to protect herself, and victims often feel guilty for things that are not remotely their fault.
And her relationship with her partner suffered and then ended, because of her tension and her anger. She has panic and anxiety attacks because she no longer feels safe, and her grandmother whose rings you stole from her, passed away shortly after this incident. She feels significant sadness over the loss of those rings, but also feels she was unable to grieve proper[ly], because at the time she was just so traumatised by this incident. And none of that is surprising, given what she went through when she was home alone and armed strangers were threatening her.
So because of that group's callous, threatening behaviour, she has gone from being a happy person to now an unhappy, anxious, lonely person.
DCJ Sweeney noted the effect on the victim of the offences on 25 February 2022 as follows:
It is apparent from the victim impact statement of Mr L that he's been profoundly affected by the offences of 25 February 2022. As to the physical effects of the incident, he said he spent about five days in hospital with two broken ribs and other injuries.
And his knee, which was struck during the robbery, still troubles him, as of 29 September 2023, the date of that statement, he is still suffering pain from it. He can't bend it, and he's going to start with a physiotherapist, which he now can't afford. He said he also had about six stitches to his left eyebrow from a bad cut and his face was swollen around the eye. He now suffers migraines - which he didn't suffer prior to the incident - from where the back of his head was struck. One of his front teeth was badly chipped.
He's also been affected psychologically and financially. He was, at that time, working as a truck driver on mine sites. He's now unable to work as a truck driver because of his knee and feels completely demoralised. He's on Centrelink benefits, he struggles financially, he can't pay his ambulance bill. His car was still under finance, and so he still owes the money even though the car was stolen.
He doesn't think he has any prospects of finding a new relationship because he regards himself now as a person with a disability and feels useless and no good to anyone including, he thinks, being no good to his daughter. He's a divorced man who has his 12-year-old daughter come stay with him every second weekend and was financially providing for her, but now he's unemployed, and if he wants to take her anywhere they have to use public transport.
It's apparent he was traumatised by this incident; he remains fearful in his own home.
If the Applicant were to engage in further criminal or other serious conduct of the kind for which he was convicted on 23 November 2023, he would risk inflicting significant physical, psychological and financial harm on members of the Australian community.
Likelihood of reoffending
In assessing the risk of reoffending, the Tribunal is mindful of the comments of the Full Court of the Federal Court in CKL21 v Minister for Home Affairs that in curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future ‘must be based on a logical process of reasoning based on the known facts’.[16]
[16] (2022) 293 FCR 634 [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574–5.
Accordingly, the Tribunal has approached the assessment of risk having regard to a series of factors.
Character Issues
In passing sentence, DCJ Sweeney stated that she was not satisfied that the Applicant was of good character, citing psychologists’ reports provided to the Court:
But you told the authors of both the pre-sentence and psychological reports that prior to moving here in January 2022, and when you were living in New Zealand, you were involved with criminal associates in New Zealand, namely an organised crime gang.
It's plain from statements on the brief, including your own, that you have a tattoo associating yourself with them. You told the psychologist you were involved in the sale and distribution of drugs at that time, and involved in acts of violence perpetrated against other gangs. And said you regularly carried and used weapons for self-protection and intimidation.
You also said you'd been the victim of serious assaults yourself and an armed robbery where a gun was held to your head and the drugs you were selling were stolen from you. You told the psychologist that you were going to become a member of the gang, but you disassociated yourself from them when your daughter was born, and you left New Zealand without informing them.
Now, in contrast, your mother claims that gang was a community-focused prosocial group. That, I am afraid, is nonsense, and that you were just big-noting yourself in saying all of these things, and you weren't involved in any form of criminal activity. She did, however, say you spent time with that group.
There are various things in the psychologist report where she's given a completely contradictory version to what you've said. I'm told the explanation is that you weren't candid with her about how your schooling was going and what you were doing with your life. I am taking your version of events as the reliable one. You would know how you were living your life and how you were going at school, and I don't see that you would be making any of that up.
You told the psychologist that you have a limited criminal record, despite your involvement in that gang. It sounds like there might be a couple of convictions to do with driving and perhaps a stealing. I don't have your New Zealand record, but I gather in any event it is modest.
So in sentencing you I can't work on the basis that you have a prior good character, because you clearly don't.
The Applicant’s former partner, and mother of his daughter, referred in her letter of 14 April 2025 to the Applicant’s... ‘past associations with the Black Power gang’[17] in New Zealand. The Applicant acknowledged his involvement with a bikie gang in his Personal Circumstances Form (PCF), provided to the Department in support of his revocation application ,[18] and his sister and mother confirmed in their evidence that he had been involved with a gang while in New Zealand.
[17] Exhibit A2
[18] G10 at p. 110
The Tribunal notes the evidence of various witnesses called by the Applicant who testified to his good character and explained his offending as him being misled by the wrong crowd. His representative paraphrased this evidence in closing submissions stating that the witnesses portrayed the Applicant as... ‘a young stupid man who made wrong decisions under the influence of charismatic people which led him to commit crimes’.
The Tribunal accepts that the Applicant may have demonstrated positive behaviour in the community and, in particular, in the context of his participation in church activities. However, his involvement in repeated criminal conduct and his admitted prior involvement with bikie gangs in New Zealand leads the Tribunal to conclude, as did DCJ Sweeney, that he cannot be accepted as a person of good character.
Nature of the Offending
It is relevant that the Applicant’s offending was planned and repeated. On 18 February 2022, he chose to return to the victim’s house after the first unsuccessful attempt to break in. He then had time to reflect on his offending on 18 February 2022 before engaging in further criminal conduct on 25 February 2022. He chose to engage in further offending of a similar kind in circumstances where he could reasonably anticipate that the impact on Ms B would be repeated for Mr L, the second victim.
Remorse
DCJ Sweeney noted that the Applicant pled guilty to all charges and, by doing so, had acknowledged his legal responsibility. She commented that the guilty plea was not entered at the first reasonable opportunity, but she acknowledged that the Applicant had made a statement which assisted the police to prepare their brief to the Court. [19] She noted further that:
There isn't really convincing evidence of remorse over and above your pleas and your statement, which I've taken into account. The author of the pre-sentence report said you demonstrated limited insight into the impact of the offending upon your victim and you've been mixing with people with criminal beliefs and attitudes for some time.[20]
[19] G5 at pp. 65-66
[20] G5 at p. 68
The Applicant included a bare statement in his ASFIC that he accepts responsibility for the events that led to his imprisonment and intends never to return to that sort of behaviour, but he made no statement of regret for his actions and for the harm inflicted on the victims.
In his oral evidence, the Applicant stated that he accepted responsibility for his offending and described it as a mistake. He said he was deeply sorry for what he had done and was disgusted by his own behaviour. However, in recounting the events of 18 and 25 February 2022, he sought to cast himself in a minor role and attributed the primary responsibility for the offending to his co-accuseds. He offered no statement of remorse for the victims in either case. When asked why he had offended, he could only say that he was young and had been through rough things with his ex-partner.
Conduct in prison and detention
A Department of Justice WA Report dated 18 October 2024,[21] indicates that the overall conduct of the Applicant while in prison was satisfactory. The report states:
Mr Foliaki currently resides at Albany Regional Prison in Unit 4 on an Earned Supervision Regime. Mr Foliaki has been a self-care prisoner since the 10/03/2024 and Unit Officers report that he abides by unit and prison regimes and maintains an acceptable standard of cell and personal hygiene. Unit staff stated that Mr Foliaki conducts himself appropriately within the unit and does not come to their attention. He interacts well with others in the unit and appears to have no issues with any other prisoners at Albany Regional Prison.
Mr Foliaki is currently employed as a Meal Worker in Unit 4 earning level 3 gratuities. He has held various Cleaning and Meal Worker positions in Unit 4 since his transfer to Albany Regional Prison on the 17/06/2024. Mr Foliaki is considered an average worker, who completes tasks as required with minimal supervision. Mr Foliaki has only been unemployed for the first few months from intake... Noted are transfer� between prisons and new intake status. His other positions of employment include Full Time Vocational and Education.
[21] G8 at pp. 90-92
However, the Respondent points to the Applicant’s involvement in disciplinary incidents in prison, including cell damage on 2 October 2024, suspected illicit substance on 22 April 2024, and misconduct on 2 January 2024,[22] as demonstrating that he continues to engage in negative behaviour despite being in a confined environment.
[22] TB3 at p. 44
The Applicant currently has a Medium prisoner security rating from Corrective Services, having initially been graded as Maximum when first incarcerated.[23]
Drugs and alcohol
[23] TB2 at p. 48
There is some evidence indicating that the Applicant has been involved in drug use. He claimed that he turned to drugs when his relationship with his ex-partner ended and DCJ Sweeney noted that he had told a psychologist that he had been involved in the sale and distribution of drugs in New Zealand. However, the Applicant did not attribute his offending to drug or alcohol use and the sentencing remarks of DCJ Sweeney do not indicate that drugs or alcohol played a part in his offending.
Rehabilitation
The Applicant said in his PCF that:
The biggest factor I want to bring forward is I was 18 at the time of the offence. I’m a single father at such a young age. I struggled to find my feet when becoming a father. I had a bad relationship breakdown. I turned to drugs and surrounded myself with a lot (sic) of negative peers to help deal with my emotions/feelings after the breakup with my partner. I’m not proud of the person I was then, but I’ve found myself again with the help of my daughter. I’m ready to be (the) Dad she needs me to be.[24]
[24] G10 at p. 107
The Applicant asserted in his PCF that his ‘biggest risk would be not being able to deal or process my emotions again’.[25]
[25] G10 at p. 107
In her sentencing remarks, DCJ Sweeney noted the Applicant’s involvement with gangs in New Zealand and commented that the Applicant... was probably more vulnerable to want to fit in with the crowd and go along with what the rest of the people were doing[26]. Her Honour referred to the psychologists reports and stated:
Your psychologist says that by personality, you have certain deficiencies in your social interactions and your sense of who you are, as well as strong feelings of inadequacy and insecurity, suggesting you have an anxiety disorder. You might also be suffering from trauma disorder from past experiences to do with your interactions with gang members and being assaulted while engaging in illicit activities.[27]
[26] G10 at p. 66
[27] G10 at p. 65
The evidence also suggests that the Applicant has suffered from anxiety and depression. He reported to a prison psychologist that he had attempted suicide by shooting about two months prior to being taken into custody for the first time on 11 May 2022.[28] Prison records[29] note that the Applicant was subsequently interviewed by a prison counsellor in May 2022 under the At-Risk Management Scheme (ARMS), but there is no evidence that the Applicant has undertaken any structured rehabilitation or engaged in counselling to address the factors underlying his offending.
[28] TB2 at p. 17
[29] TB3 at pp. 17-21
In his oral evidence, the Applicant showed little insight into his offending. He suggested it was because he was young and had a difficult breakup with his ex-partner, but he admitted that he really didn’t know why he offended. The Applicant’s mother stated in her oral evidence that she feared that the Applicant would get into trouble if he was not supported by his family and his sister acknowledged that in the past, he had been prone to being influenced by the wrong people.
The Tribunal is satisfied from this evidence that there are likely to be issues of socialisation, personality and mental health underlying the Applicant’s offending. There is no evidence that these issues have been professionally assessed or treated.
Protective Factors
The Tribunal accepts that the Applicant would have the support of his family and members of his church if released into the community. The Applicant has provided various letters of support from family and friends associated with the Tongan community in Western Australia, including church leaders from three separate churches. Several church leaders from different churches gave oral evidence attesting to the Applicant’s involvement in church activities, including youth activities, Sunday school classes, cleaning and grounds maintenance, and singing. Each of the witnesses expressed their willingness to support the Applicant if released into the community with culturally appropriate engagement.
The Applicant’s mother and his older sister each gave evidence in support of the Applicant.
The Applicant’s mother stated in her letter of support dated 29 May 2025 that when the Applicant is released from custody, she has a transitional support plan in place whereby:
a.she will provide him with a safe and supportive home with support and guidance from her extended family; and
b.she has secured employment for him with a local business working as a scaffolder at Sino Iron 100km southwest of Karratha.[30]
[30] Exhibit A8
The offer of employment was confirmed in a letter dated 14 April 2025 from Alan Tuuholoaki, the Applicant’s uncle, who indicated that he would be the Applicant’s supervisor if he were to take up the offer of employment.[31] Mr Tuuholoaki clarified in his oral evidence that the position he has offered to the Applicant would be a 2:1 position, meaning that the Applicant would be required to work at the remote location near Karratha for 14 days and then have 7 days off when he could return to Perth.
[31] Exhibit A5
Aside from the offer from Mr Tuuholoaki, the Applicant has relevant work experience and some transferrable skills, having worked in a sawmill in New Zealand and as a welder in a factory in Perth after his arrival in Australia. He, therefore, has reasonable prospects for obtaining employment if released into the community.
The Applicant and his mother and sister assert that the Applicant is motivated to refrain from further offending because of his responsibilities as a father to his daughter. The Applicant’s representative asserted in the ASFIC that:
Whilst having been in prison, the [A]pplicant has come to realise how important his child is and wants her to grow up proud of her father. The [A]pplicant wants to rehabilitate himself and continue in his community and be part of his church.[32]
[32] ASFIC at [4]
The Applicant’s relationship with his daughter is a protective factor in assessing risk. However, for reasons discussed later in this decision,[33] the Tribunal is satisfied that the Applicant has not fulfilled the role of father to his daughter in the fullest sense to date. While the Tribunal accepts that the Applicant is genuine in his love and concern for his daughter and aspires to fulfill the role of father more completely, his commitment to fully embrace his responsibilities as a parent is untested in the community.
[33] See [91]-[100] below
The principal protective factors identified by the Applicant, namely his child, family and employment in the community, were present at the time of his offending and did not deter him from engaging in criminal behaviour.
Professional assessment
The Tribunal also notes that there is presently no current independent expert report providing an assessment of the risk of re-offending to support any contention by the Applicant regarding his risk of reoffending.
Consideration
The Applicant is a young man who has a background of involvement in criminal activity. He was convicted for his involvement in the commission of repeated serious crimes. His involvement was premeditated and deliberate conduct. He has expressed little remorse for his offending and, in particular, for the impact it has had on the victims. While his conduct in prison has been satisfactory, it has not been without incident. The Applicant has not taken any concrete steps to identify and address the personality, psychological or social factors which may have contributed to his criminal behaviour. If he were to return to the community, he would be placed essentially in the same circumstances he was in at the time of his offending.
It is the Tribunal’s assessment that, viewed objectively, there is a significant risk the Applicant could resort to further offending of a violent nature if released into the community.
This risk must be weighed against the nature of his past offending which was very serious and if repeated would threaten significant physical and psychological harm to members of the Australian community.
The protection of the Australian community is a primary consideration under Direction 110, and paragraph 8.1(1) identifies the safety of the Australian community as the highest priority of the Australian Government. Accordingly, the Tribunal gives this consideration substantial weight in favour of not revoking the cancellation of the Applicant’s Visa.
Family Violence
Paragraph 8.2(1) of Direction 110 states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
There is no evidence that the Applicant has engaged in any family violence as defined in paragraph 4(1) of Direction 110, and accordingly this consideration is not relevant.
The Strength, Nature and Duration of Ties to Australia
Paragraph 8.3 of Part 2 of Direction 110 requires that decision-makers:
(1)… 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)… 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)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’s immediate family all reside in Australia. They comprise of his minor daughter, his mother, Mrs Meliame Foliaki, his father, Mr Sione Foliaki, his older sister, Ms Humi Foliaki, and a younger sister. The Applicant’s mother and Humi Foliaki each gave evidence in support of the Applicant. They confirmed that the family has taken responsibility for the Applicant’s daughter while he has been in prison. The Tribunal accepts that the removal of the Applicant to New Zealand would cause emotional distress for members of his family and particularly his mother and sisters.
The best interests of the Applicant’s daughter are considered separately under Paragraph 8.4(1) of Part 2 of Direction 110, and it is not clear what would happen to the daughter if the Applicant were removed to New Zealand. It would be open to the Applicant to take his daughter with him, but it seems more likely that he would decide to leave his daughter in Australia under the care of his family and to return to New Zealand alone. The Tribunal accepts that either eventuality would likely be distressful for the child.
There is no direct evidence that the Applicant’s removal from Australia would have any financial or other practical effect on his family members, although his mother did infer that she had an expectation that the Applicant would contribute to the family finances if employed.
The Applicant has provided numerous statements from members of the Tongan community in Perth, including from people associated with three churches, who support the Applicant,[34] demonstrating that he has developed broad ties with members of the community. The Tribunal also accepts that the Applicant has made a limited positive contribution to the community through his employment as a welder and participation in charity work.
[34] Exhibits A3-7 and 10-13
On the basis of this evidence, the Tribunal is satisfied that the Applicant has reasonably strong and enduring ties to the Australian community. This is a primary consideration under Direction 110 and weighs in favour of revocation. However, the Applicant has only resided in Australia for four years and for the last 18 months he has been in prison. He was 17 years old when he arrived and began offending around seven months after his arrival. These factors diminish the weight to be given to this consideration.
Best Interests of Minor Children affected by the Decision
Paragraph 8.4(1) of Part 2 of Direction 110 requires that decision-makers must make a determination about whether refusal under section 501 or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
In considering the best interests of the child, paragraph 8.4(4) requires specific factors to be considered. The consideration of the factors relevant in this case are set out below:
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 one minor child in Australia, his four-year-old daughter who is currently in the care of the Applicant’s mother while he is in prison. The Applicant described his relationship with the child in his PCF:
My relationship with my daughter is a good strong relationship. She lives with my mother full time while I’m in prison. I have phone calls with her every day or as much as I can during the week and weekends. I’m trying to remain a positive role model in her life while I’m in prison.[35]
[35] G10 at p. 105
In his oral evidence, the Applicant said that he communicates with his daughter every day by telephone or other electronic means. He confirmed that his mother adopted the child at birth and has legal responsibility for the child. His ex-partner agreed to the adoption.
The Applicant’s sister, Humi Foliaki, described the relationship in her statement of 14 February 2025:
My brother is a single father doing his very best to raise his young child, and he has no support system in New Zealand. This child’s wellbeing is deeply dependent on my brother being allowed to stay and raise them in a stable and supportive environment — which we can only provide here.
In January 2024, I moved from New Zealand to Australia specifically to help my brother with parenting and to ensure the child grows up with a loving and secure family around her. The bond between us as siblings, and our commitment to this child’s future, is strong. Deporting my brother would not only separate him from his only immediate family but would also tear a father away from his child, which would be emotionally and practically devastating.[36]
[36] Exhibit A1
The child’s mother resides in New Zealand and has had no contact with the child since the Applicant brought her to Australia in July 2021. In a letter of support provided to the Tribunal, the child’s mother stated:
On March 5th, 2021, I gave birth to our daughter. A few months later, on July 4th, 2021, Sesoni and I mutually agreed that he would travel to Australia with our daughter to pursue a new beginning and better opportunities. Since that time, we have had no contact until recently, when I was advised to write this letter.
I acknowledge that Sesoni has taken full responsibility for our daughter since relocating to Australia. It is now April 2025, and my life has moved in a different direction. I am now married, expecting another child, and focused on my growing family. At this point, I do not have the time, space, or emotional capacity for Sesoni to return to New Zealand.[37]
[37] Exhibit A2
The Applicant’s mother gave evidence that the Applicant had played a very active role in caring for his daughter prior to his imprisonment. She said she works the night shift and the Applicant took responsibility for feeding, bathing and caring for his daughter while she was at work. However, the Tribunal is concerned that the Applicant’s mother has overstated the extent of the Applicant’s parental role for the child in that period.
The Applicant acknowledged that, while he is the biological father, his mother assumed the legal responsibility for the child from birth and the child has lived in his mother’s home and under her care since arriving in Australia in July 2021.
Further evidence suggests that the Applicant’s commitment to his parental role was compromised during the period prior to his imprisonment on 1 November 2023. It was during this time that the Applicant was involved in offending on 18 and 25 February 2022 and was under the influence of ‘bad boys’ as one witness described them. The Applicant said in his PCF that during this period… ‘I struggled to find my feet when becoming a father. I had a bad relationship breakdown. I turned to drugs and surrounded myself with alot (sic) of negative peers to help deal with my emotions/feelings after the breakup with my partner.[38] A counselling session report from Hakea Prison dated 13 May 2022 records that he ‘attempted to shoot himself in around’ March 2022.[39] He was imprisoned in Hakea Prison on 11 May 2022 having been refused bail[40] and was released from custody on 1 June 2022 and was subject to home detention.
[38] G10 at p. 107
[39] TB2 at p. 17
[40] TB2 at p. 17
In her sentencing remarks, DCJ Sweeney referred to the child being raised by the Applicant’s mother. Her Honour said:
You're also a single father with a two-year-old daughter, who was raised by your mother. The mother of the child is about eight years older than you, I think, and lives in Sydney. And because you were very young when you became a father, your mother adopted the child.[41]
[41] G10 at p. 68
Since he was taken into custody on 1 November 2023, the Applicant has not been in a position to care for his daughter, although he has had daily contact with the child by electronic means and occasional visits in prison.
Having regard to the evidence as a whole, the Tribunal is satisfied that the Applicant has not fulfilled the role of father to his daughter in the fullest sense to date. However, the Tribunal accepts that the Applicant has taken some parental responsibility and is genuine in his love and concern for his daughter and aspires to fulfill the role of father more completely. He has the support of his family in this regard. Paragraph 8.4(1) of Part 2 of Direction 110 requires the Tribunal to consider the best interests of the child in these circumstances not to pass judgement on the quality of the Applicant’s parenting.
The Tribunal readily accepts that it would be in the child’s best interest for the Applicant to remain in Australia so that she can be raised by the Applicant with the support of his immediate family. If the Applicant were removed to New Zealand, he could take his daughter with him, but she would be denied the support of the Applicant’s family and could not expect significant parental support from her mother. Alternatively, the Applicant might choose not to take his daughter with him if removed to New Zealand. In that event, the child would continue to enjoy the support of the Applicant’s immediate family in Australia but be denied direct contact with her father.
The Respondent accepts that the best interests of the Applicant’s daughter is a consideration in favour of revocation but asserts that it should attract limited weight having regard to the following factors:
a.the Applicant’s mother currently performs a parental role for the child;
b.the Applicant has had limited contact with the child while in prison;
c.the Applicant is able to maintain contact with his daughter by other means, including telephone and video calls as he does presently, and she can visit the Applicant in New Zealand; and
d.if the Applicant accepts the position offered for him by Mr Tuuholoaki, he would be likely to have period of separation from his daughter because of the position’s shift arrangements.
The Tribunal is not satisfied that these factors should be applied to diminish the weight to be given to this consideration. The evidence is that the Applicant did assume some parental responsibilities for the child before his incarceration and his mother insists that she has assumed the role as a temporary measure while he is in prison. The Applicant has maintained regular contact with the child since his incarceration as best he can from the remote location of his prison in Albany. The shift arrangements for the proposed position are not an unusual arrangement and one which can be accommodated without adversely affecting the Applicant’s ability to fulfill his parental responsibilities. While contact by phone and video calls do provide a means for the child to maintain a relationship with her father if he were in New Zealand, the Tribunal recognises the importance for the child of direct and constant contact with her only effective parent.
The best interests of minor children who may be affected by the decision is a primary consideration under Direction 110. The Tribunal gives this consideration substantial weight in favour of revocation in this case.
Expectations of the Australian Community
Paragraph 8.5 of Part 2 of Direction 110 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.
(2)In addition, 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 is 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.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable [sic] risk of causing physical harm to the Australian community.
Paragraph 8.5(4) 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.
In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs, the High Court said regarding paragraph 8.4 in the former Direction 90, which mirrors the wording of paragraphs 8.5(1) and (2) of Direction 110:
[51] Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case".
[52] Paragraph 8.4(4) is to be understood as directing the decision maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)- (3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)- (3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate's reasoning accords with these requirements.[42]
[42][2024] HCA 2 at [51]-[52]; See also FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [75]–[76]; and Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [31]–[35].
The Applicant has engaged in serious criminal conduct. It was conduct raising serious character concerns.
The deemed expectation of the Australian community as expressed in paragraph 8.5 of Part 2 of Direction 110 is that a non-citizen who engages in such conduct should not be allowed to remain in Australia. This expectation applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community: paragraph 8.5(3). The Tribunal is satisfied that the expectation of the Australian community is that the cancellation of the Applicant’s Visa should not be revoked.
The expectation of the Australian community is a primary consideration under Direction 110. Whether or not it is appropriate to act in accordance with that expectation is a matter to be determined having regard also to each of the other considerations. In weighing each of the considerations, the Tribunal attributes substantial weight to the expectation of the Australian community in favour of not revoking the cancellation of the Applicant’s Visa.
OTHER CONSIDERATIONS – PARAGRAPH 9 OF PART 2 OF DIRECTION 110
Legal Consequences of the Decision
If the cancellation of the Applicant’s Visa is revoked, he will be able to remain in Australia and once his prison sentence has been served, he will be released into the community. If the cancellation is not revoked, Paragraph 9.1(1) requires decision-makers to be:
… mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Paragraph 9.1.2(1) provides that claims which may give rise to international ‘non-refoulement’ obligations can be raised by a non-citizen who is not the subject of a protection finding, and where such claims are raised, they must be considered by the Tribunal. This requires the Tribunal to "read, identify, understand and evaluate" them.[43]
[43] Plaintiff M1-2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [9].
In this case, the Applicant has not made any direct claim that his circumstances enliven Australia’s non-refoulement obligations and the circumstances do not suggest such a claim. However, the Applicant has stated in his PCF submitted to the Department in support of his revocation application that:
It will be dangerous for me to return and I fear for my safety.[44]
[44] G9 at p. 96
He clarified in his PCF that:
The bikie gangs there are my main concerns as I have had past dramas with them. I’ll be bashed or worse, and my family will be in danger because of me.[45]
[45] G10 at p. 110
The Applicant did not expand on these claims in his oral evidence.
It is not clear to the Tribunal from the brief evidence given by the Applicant whether the Applicant’s claim of fearing harm in New Zealand could give rise to a legitimate nonrefoulement claim.
Paragraph 9.1.2(2) provides that:
... [W]here it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether nonrefoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
Whatever the outcome of these proceedings, the Applicant is able to apply for a protection visa and, in doing so, he would be able to fully articulate the basis for his claim. It is not necessary or appropriate for the Tribunal to consider nonrefoulement issues at this stage, given the limited material before it. The preferrable course is to proceed on the basis that, if and when the Applicant applies for a protection visa, any protection claims he has will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
On the current facts, the immediate consequence of a decision not to revoke the cancellation of the Visa is that the Applicant will be liable for removal from Australia as soon as reasonably practicable after the completion of his prison sentence, and pending removal, will remain in immigration detention under section 198 of the Act. The Tribunal also notes that once removed, the Applicant will be subject to indefinite exclusion from Australia by operation of the Special Return Criteria in clause 5001(c) of Schedule 5 to the Migration Regulations 1994 (Cth).[46]
[46] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 at [12]–[14] per Feutrill J.
The Applicant is able to apply for a protection visa and he would be liable to be held in immigration detention pending the finalisation of a decision on a protection visa (if an application is made).
If a protection visa is granted, he would be released into the Australian community. If it were refused and no protection finding is made, the Applicant would then be liable to removal from Australia under section 198 of the Act.
If the Applicant applies for a protection visa, it is possible that he may have a protection finding made but be refused a protection visa on character or other grounds. In that event, he would be precluded from removal from Australia to his home country and liable to be held in immigration detention while other options are considered. It is possible that arrangements might be made for his removal to a third country, or he might be released into the community on a bridging visa on restrictive conditions at a time ‘when there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future’.[47]
[47] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.
The consequences of removal for the Applicant are matters which form the subject of other considerations under Direction 110. However, the legal consequences of deciding not to revoke the cancellation of the Applicant’s Visa do carry their own adverse impact on the Applicant. The Tribunal cannot say with any certainty how events may develop if revocation is refused. However, it can be expected that the Applicant may be subjected to a period of immigration detention depriving him of his liberty. Depending on the legal processes that may ensue, the period of detention may be extensive. Prolonged detention can be expected to have an adverse effect on the Applicant’s psychological health. If he is deported, it is likely to exact a significant emotional toll.
These matters are considerations which favour revocation. While they are an expected consequence of the application of the law, they nevertheless warrant some moderate weight.
Extent of Impediments if Removed
Paragraph 9.2(1) of Part 2 requires that:
(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.
Paragraph 9.2(1) requires a consideration of all aspects of the Applicant’s physical wellbeing, including ‘... the overall state of a person’s fitness and condition, including underlying health issues and ongoing effects of any past injury’.[48]
[48] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 at [12].
The Applicant is 21 years of age. The evidence indicates that he suffers from cardiac issues caused by rheumatic fever for which he receives monthly injections[49] and he has been identified as morbidly obese[50]. It is reported that the Applicant attempted suicide in about March 2022 and so it is likely that he has experienced anxiety and depression previously, although the evidence does not include any formal diagnosis. These conditions are currently being managed by the facilities available to the Applicant in prison and, as a citizen of New Zealand, he would have access to the social, medical and financial support available to other citizens in that country, which is accepted as comparable to the support available in Australia.[51]
[49] G5 at p. 68; G7 at p. 88; TB2 at p. 24
[50] TB2 at p. 24
[51]See Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296 at [44] and [68]-[69]; and Tera Euna and Minister for Immigration and Border Protection (Migration) [2016] AATA 301 at [101].
The Applicant lived in New Zealand until the age of 17 and has familial and cultural ties to the country. There are no substantial language or cultural barriers for the Applicant to overcome in establishing himself in New Zealand. He would have the same access to social, medical and economic support as other citizens.
The Applicant has transferrable skills as a welder and prior work experience which would assist him in finding employment in New Zealand.
The Applicant’s immediate family has relocated to Australia, and the Applicant claims that he does not have any family support in New Zealand. This lack of family support would create difficulties for the Applicant in establishing himself and would be of greatest impact if he were to take his daughter with him when he returned to New Zealand. However, the evidence shows that he has some prospects for support in New Zealand.
The statement of support from Ms Maraea Pomana, Manager at Fordland Community Centre in Rotorua, states that:
Sesoni used to work for us for nearly 2 years as our youth cadet, part of his role was to support our youth worker in seƫng up for our youth programme called ‘TuTotara’. This programme is based in our neighbourhood skatepark and it runs every Monday from 3.30pm to 6.30pm. This programme is a free sports and acƟvity programme focused on engaging our youth and growing the skills in sports but also as a safe place to connect and build our community. Sesoni is a natural youth worker and children and youth are drawn to him as he is naturally charismaƟc and is also a really good sportsman.
When Sesoni moved away to Australia we were all really sad that he was leaving…[52]
[52] Exhibit A7
The Applicant has also raised his concerns regarding threats he would face from former gang associates if he were to return to New Zealand. The Applicant has not produced any evidence which would assist the Tribunal to properly assess this claim. The Applicant has some flexibility as to where he lives in New Zealand in order to minimise the risk of contact with those that he fears. He also has recourse to the law enforcement authorities in New Zealand for protection as do other citizens.
Having regard to these matters, the Tribunal is satisfied that the Applicant may face some difficulty in re-establishing himself in New Zealand initially, but such difficulties would be temporary, and he is likely to be able to establish himself and maintain basic living standards consistent with what is generally available to other citizens of New Zealand.
Having regard to the initial difficulties the Applicant may face in re-establishing himself, the Tribunal gives this consideration moderate weight in favour of revocation.
Impact on Australian Business Interests
Paragraph 9.3(1) of Part 2 of Direction 110 requires:
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 Applicant has a limited employment history and has not been employed in the community for nearly two years. His removal from Australia would have no material impact on Australian business interests.
There is no evidence that a decision not to grant the Applicant a Visa would compromise the delivery of a major project or important service in Australia.
Accordingly, the Tribunal gives this consideration no weight.
Other Considerations
The considerations specifically referred to in paragraph 9 are not exclusive and the Tribunal is not limited in considering other relevant matters.
The Applicant has not raised any other specific consideration, and the Tribunal is satisfied that all of the matters relevant to the Applicant’s application have been considered in the context of the considerations specified in Direction 110.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection,[53] His Honour North ACJ elaborated on how to approach the exercise of the discretion under section 501CA(4)(b)(ii) of the Act:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
[53] [2016] FCA 1166 at [38].
Weighing the factors for and against revocation requires the Tribunal to give both primary and other considerations ‘appropriate weight’.[54] Paragraph 7 of Part 2 of Direction 110 provides guidance on how relevant considerations are to be assessed. It states that primary considerations should generally be given greater weight than the other considerations, but one or more primary considerations may outweigh other primary considerations.
[54] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
There are two primary considerations weighing in favour of revocation.
a.The best interests of the Applicant’s daughter is a factor favouring revocation which attracts substantial weight.
b.The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation but the weight to be accorded is diminished by the fact that the Applicant has only resided in Australia for four years and he began offending shortly after his arrival.
In addition, there are two other considerations which carry some moderate weight. The legal implications of not revoking the cancellation of the Applicant’s Visa carry some risk of personal distress for the Applicant and may require him to endure a period of detention. He may also experience some difficulty in re-establishing himself in New Zealand initially which warrants moderate weight in favour of revocation.
There are two primary considerations weighing against revocation.
a.The Applicant has committed very serious crimes and there is a significant risk the Applicant could resort to further offending of a violent nature if he is released into the community. The protection of the Australian community is a primary consideration under Direction 110, and paragraph 8.1(1) identifies the safety of the Australian community as the highest priority of the Australian Government.
b.The expectation of the Australian community is that non-citizens will obey Australian laws while in Australia. The Applicant has engaged in very serious conduct in breach of this expectation and there is a significant risk he may do so again. He has also been involved in the commission of serious crimes against women. The Australian community, as a norm, expects that he not be allowed to remain in Australia.
In assessing the relative weight to attribute to factors for and against revocation, the Tribunal has had regard to the principles set out in paragraph 5.2 of Direction 110 which provide the framework for decision making under section 501CA of the Act. These include that:
(a)the safety of the Australian community is the highest priority of the Australian Government;[55]
(b)non-citizens who engage in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia; and
(c)the Australian community expects the Australian Government to cancel the visas of non-citizens, if they engaged in conduct that raises serious character concerns regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
[55] See also paragraph 8.1(1).
The Tribunal has also had regard to the principle in paragraphs 5.2(5) and (6) as they relate to the Applicant. The Applicant has lived in Australia for only a short time, and he arrived in Australia when almost 18 years of age. He commenced offending around seven months after arriving. He had been participating in, or contributing to, the Australian community for only a short period of time when he committed his offences. Accordingly, the Applicant warrants less tolerance.
Principle 5.2(7) contemplates circumstances in which the nature of the non-citizen’s conduct is so serious or the harm that would be caused if it was repeated is so serious that even strong countervailing considerations may be insufficient to justify revocation. Principle 5.2(8) contemplates circumstances where the inherent nature of the conduct is so serious that even strong countervailing considerations may be insufficient to justify revocation even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Tribunal is satisfied that the nature of the Applicant’s offending raises serious character concerns about the Applicant. The offences for which he was convicted involved the forced entry to the victim’s homes when they were present. The Applicant acted in concert with others. Weapons were employed and the offending involved violence. The victims were both physically and psychologically injured. The purpose of the offending was to steal the victim’s property. The conduct was repeated. The nature of the Applicant’s offending and the harm that would result if it were repeated are so serious that the countervailing considerations are insufficient to outweigh considerations of the protection of the Australian community and the expectations of the Australian community so as to justify revoking the cancellation of the Applicant’s Visa.
Accordingly, the Tribunal is not satisfied that there is another reason why the discretion under section 501CA(4)(b)(ii) of the Act should be exercised to revoke the cancellation of the Applicant’s Visa. The correct and preferable decision is to affirm the decision under review.
DECISION
Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision of the delegate of the Respondent of 4 April 2025 not to revoke the cancellation of the Applicant’s Class TY (subclass 444) Special Category (Temporary) visa.
Dates of Hearing:
24 and 25 June 2025
Applicant’s Representative:
Mr Siosiua Sila Tohotoa from Mana Consulting
Respondent’s Solicitor:
Ms Anis Rezae from Sparke Helmore Lawyers
SCHEDULE – APPLICANT’S EXHIBITS
Exhibit A1
Support letter from Humi Keleni Haapuka Foliaki dated 14 April 2025
Exhibit A2
Support Letter from Malia Cagi dated 14 April 2025
Exhibit A3
Support letter from Rosamona Tu’imoala dated 13 April 2025
Exhibit A4
Support Letter from Talia Warren-Maugatai, undated
Exhibit A5
Witness Statement from Alan Tuuholoaki, dated 14 April 2025
Exhibit A6
Witness Statement from Kaufusi Moataane, dated 29 May 2025
Exhibit A7
Witness Statement from Maraea Pomana, 28 May 2025
Exhibit A8
Witness Statement from Meliame Foliaki, 29 May 2025
Exhibit A9
Witness Statement from Meliame Foliaki, dated 29 April 2025 (not including video clips)
Exhibit A10
Witness Statement from Silila Moa, dated 30 May 2025
Exhibit A11
Witness Statement from Sione Moa, dated 30 May 2025
Exhibit A12
Witness Statement from Tevita Fotu, dated 10 April 2024
Exhibit A13
Witness Statement of Utoikamanu Fotu, dated 14 April 2025
Exhibit A14
Further Witness Statement from Meliame Foliaki, dated 19 June 2025
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