Kaifoto and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2023] AATA 283

Kaifoto and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 283 (10 January 2023)
Division:GENERAL DIVISION
File Number: 2022/8884
Re:Paea Kaifoto
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Member D. Cosgrave
Date:10 January 2023
Date of written reasons: 1 March 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 18 October 2022 to not revoke the cancellation of the Applicant’s visa.
...................................
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – citizen of Tonga – Class BB Subclass 155 Five Year Resident Return visa – failure to pass good character test –criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 90 applied – delegate’s decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Cases
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Migration Regulations 1994 (Cth)
REASONS FOR DECISION
Member D. Cosgrave
1 March 2023
INTRODUCTION

The Applicant seeks review of the Respondent’s decision not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa (“the visa’).[1]
[1] Exhibit 4, Respondent’s Final Statement of Facts, Issues and Contentions (“RSFIC”), lodged on 7 December 2022.
The hearing was held by video at the Tribunal’s Brisbane Registry the Tribunal’s Brisbane Registry on 6 and 9 January 2023. The Applicant was represented and supported by Mr Waddell, his former son-in-law. The Respondent was represented by Ms Dejean, a legal practitioner with the Australian Government Solicitor. The Tribunal also received assistance from a Tongan speaking interpreter who participated on both days of the hearing through video.
On 10 January 2023 the Tribunal affirmed the Respondent’s decision under review by providing a short form decision which is attached as Annexure B to these written reasons. The Tribunal now gives its reasons for its decision.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
The Applicant is a 60-year-old citizen of Tonga (born 5 November 1962). He first arrived in Australia in 1984.[2]
[2] G4, page 345. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
On 18 December 2002, the Department of Immigration and Citizenship warned the Applicant that further criminal offending could result in his visa being cancelled.[3]
[3] G4, page 341.
On 13 August 2008,[4] the Department of Immigration and Citizenship notified the Applicant that his visa may be liable for cancellation under Section 501 of the Act.
[4] G4, page 337.
On 21 April 2009, a delegate of the Minister had decided not to cancel the Applicant’s visa. The delegate decided that the Applicant should receive a formal warning:[5]
‘Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on your grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.’
[5] G4, pages 337-338.
On 15 July 2020, the Applicant’s then Class BB Subclass 155 - Five Year Resident Return visa, granted on 12 August 2013, was mandatorily cancelled and the Applicant notified that he had failed the character test due to his 6 year conviction on 2 July 2004, enlivening Sections 501(3A), 501(6)(a) and 501(7) of the Act.[6] The 15 July 2020 notification did not comply with the requirements of the Act identified in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174.[7]Hence, on 5 January 2020, the Applicant was re-notifed lawfully about the mandatory cancellation decision made by a delegate of the Respondent on 15 July 2020. On 5 January 2022, the Applicant was lawfully notified of the mandatory cancellation decision.
[6] G4, page 555.
[7] Supplementary G Documents (SG), page 1.
On 1 February 2022, the Applicant requested revocation of the mandatory cancellation decision.[8]
[8] G4, pages 242-278.
On 18 October 2022, a delegate determined not to revoke the mandatory cancellation decision.[9]
[9] G2.
On 27 October 2022, the Applicant lodged an application with the Tribunal for review of the delegate’s decision to not revoke his visa cancellation.
Offending History
The Applicant’s offending history is set out in:
(a)National Criminal History Check (dated 15 July 2020).[10]
(b)Sentencing Remarks of His Honour Judge Dodd of the District Court of New South Wales (dated 2 July 2004).[11]
(c)Judgment of the Court of Criminal Appeal of New South Wales (dated 19 June 2006).[12]
(d)Sentencing Remarks by Magistrate Abdul-Karim of the Local Court of New South Wales (dated 9 July 2020).[13]
(e)Record of Conviction, Sentences and Appeals from the New South Wales Department of Corrective Services (dated 13 July 2020).[14]
(f)Immigration Detention reports.[15]
(g)Table of Offences compiled by the Respondent’s legal representative.[16]
[10] G4, pages 33-37.
[11] G4, pages 38-60.
[12] G4, pages 61-78.
[13] G4, pages 79-83.
[14] G4, pages 84-88.
[15] G4, pages 89-105.
[16] Exhibit 10.
The Applicant’s offending can be categorised under the following areas:
(a)Assault.
(b)Assault occasioning bodily harm.
(c)Sexual assault.
(d)Contraventions of Domestic Apprehended Violence Orders (AVO).
(e)Malicious wounding.
(f)Malicious damage.
(g)Destruction or damage to property.
(h)Stalking and intimidation with intent to cause fear of physical harm.
(i)Driving without a licence.
In 1990, 1993 and 1994, the Applicant was convicted of multiple instances of assault occasioning actual bodily harm, malicious wounding and assault.[17]
[17] G4, pages 36-37.
In March 1999, the New South Wales (NSW) Police recorded a complaint involving the Applicant allegedly sexually assaulting a woman who was a distant relative, forcing oral sex, biting her right breast and threatening to kill her if she told anyone. The NSW Police imposed an AVO.[18]
[18] Tender Book (TB), page 33.
In May 1999, the New South Wales Police recorded 8 incidences involving the Applicant allegedly grabbing a woman, pushing her against the wall and backhanding her, dragging her by the hair, forcing anal sex and threatening to shoot her.[19]
[19] TB, page 35.
On 18 November 1998 and 15 December 2000, the Applicant completed Incoming Passenger Cards and did not declare his criminal convictions.[20]
[20] G4, pages 342-344.
On 2 March 2001, the NSW Police recorded that the Applicant met a distant female relative at a nightclub. He lifted up her skirt and forced her legs apart and she said, “please don’t, please don’t”, but he forced her legs apart and inserted his fingers in her vagina. She screamed and he covered her mouth. He made several attempts to put his penis in her vagina and to force her to engage in oral sex. He pulled her shirt and bra up and bit her on the right breast. The NSW Police imposed an AVO.[21]
[21] TB, page 33.
On 8 April 2001, NSW Police recorded a series of events where the Applicant allegedly punched a woman, hit the woman in the face, continued punching her face using a closed left fist, and told the woman "I'll shoot your arse". A subsequent x-ray at the Royal Prince Alfred Hospital revealed that the woman had a broken nose. The woman intended to seek an AVO.[22]
[22] TB, pages 32.
On 29 November 2002, NSW Police recorded an incident where the Applicant allegedly assaulted a woman, slapping her with an open hand to the lower left eye and cheek area, picking her up by her hair and rear neck area, punching her right cheek and eye area with a closed fist, saying to her "You are nothing but a piece of useless shit and you deserve this" yelled obscenities at the woman, said "It is your fault. You should feel guilty", urinated over the woman, seized her mobile telephone and smashed it into pieces when she began to dial number, and then slapped the woman round the left eye and cheek area.[23]
[23] TB, page 26.
On 2 July 2004, the Applicant was sentenced (after an appeal against the sentence in 2006) to 6 years for, amongst other offences, Aggravated sexual intercourse without consent did maliciously inflict actual bodily harm for the assaults occurring in March 1999, April 1999, August 2002 and November 2002.[24]
[24] G4, pages 35-36.
On 19 June 2006, the Court of Criminal Appeal of New South Wales confirmed the Applicant’s convictions and imposed:
(a)On the charge of sexual intercourse without consent, a fixed term sentence of three years.
(b)On the charge of assault occasioning actual bodily harm, imprisonment for three years with a non-parole period of one year and six months.
(c)On the charge of detaining for advantage imprisonment for three years non-parole period of one year and six months.
(d)On the charge of aggravated sexual assault, a fixed sentence of one year.
(e)On two charges of assault occasioning actual bodily harm, a fixed sentence of three years.
(f)On two charges of aggravated sexual assault, a sentence of four years with a non-parole period of three years.
(g)On the charge of aggravated sexual assault, a sentence of six years with a non-parole period of three years.
On 25 June 2012, the Applicant was convicted for common assault, and was fined $400 and granted 12 months’ conditional release.[25]
[25] G4, page 34.
On 10 March 2015, the NSW Police recorded a series of alleged incidents involving the Applicant and a woman between June 2014 and March 2015. During these incidents, the Applicant allegedly struck the woman with the back of his palm across the right cheek, told her that he was going to bring over two girls and have sexual intercourse, continued to strike her to keep her awake, stated to her "You don't wanna see the other side of me. You do not know what I'm capable of. I can drive you to the middle of nowhere and chop you up and feed you to the pigs" and otherwise intimidated her.[26]
[26] TB, page 17.
As part of the 10 March 2015 record, the Applicant on 9 March 2015 allegedly told the woman ‘hey do you want me to come to your work and bash the fuck out of you in front of everyone?’ After the woman replied ‘No’, the Applicant then allegedly said ‘Listen here you fuck head, don’t fuck around with me or I will come around there and put a bullet through your head.’[27]
[27] Op cit.
On 24 April 2018, the NSW Police recorded that the Applicant walked into his partner’s house after being refused entry. He tried to pry a mobile telephone from her hands as she called the police. He then pushed the partner’s chest with both his hands. The mobile telephone was damaged in the altercation.[28]
[28] TB, page 11.
On 19 December 2018, the Applicant was convicted for Common assault (DV), and a community corrections order was imposed.[29]
[29] G4, page 34.
On 30 December 2019, the NSW Police recorded that the Applicant, during an argument with his partner, allegedly punched the partner in the head and face approximately 10 to 11 times, punched her in the arms as she was protecting herself, pushed her on the bed and sat on her, and then grabbed her by the neck with both hands and choked her for 7-8 seconds. He then attempted to rip off her shirt, and said ‘I’m going to kill you, but first I’m going to rape you.’ Although he did not proceed to rape the victim, he said ‘If you go to the police I’ll kill you and your brother.’
On 9 February 2020, the NSW Police recorded that the Applicant allegedly breached a Provisional AVO, told a woman to get in his car he wanted to talk to and when she had replied in the negative, he intimidated her with the words ‘Get in the car or I'll kill you’ and chased the woman down a street, subsequently assaulting her.
On 15 May 2020, the Applicant was convicted of Contravene prohibition/restriction in AVO (Domestic), sentenced to an 18-month community correction order and ordered to attend domestic violence courses.[30]
[30] Op cit.
On 9 July 2020, the Applicant was convicted of Assault occasioning actual bodily harm, Stalk/intimidate intend fear physical harm etc harm (domestic), and an aggregate term of 10 months imprisonment was imposed.[31]
[31] Op cit.
On 10 August 2021, the Applicant displayed aggressive abusive behaviour:[32]
‘On 10 August at approximately 10:45 hours, (the Applicant) was abusive aggressive towards International Health Medical Services (IHMS) while down in the clinic for his Opioid Substitute Treatment Program (OSTP). (The Applicant) was then escorted out of the IHMS clinic by Emergency Response Team officers and returned back to his Mitchell compound.’
[32] G4, page 105.
On 18 September 2021, the Applicant broke a microwave oven in an Immigration Detention Centre kitchen:[33]
‘On Saturday, 18 September 2021, at approximately 15:55 hours, Detention Service Officer (DSO) [name redacted] heard a loud noise generating from Unit three of Mitchell Compound. She immediately attended location and found a broken microwave on the floor with (the Applicant) standing beside it.
DSO [name redacted] questioned (the Applicant), what transpired.
(The Applicant) stated he had received an international call from family that disturbed him and did not wish to disclose further information. (The Applicant) added saying that he is okay and needs some time alone.’
[33] G4, page 103.
On 13 December 2021, the Applicant physically assaulted another detainee:[34]
‘DSO [name redacted] was conducting her normal duties when she witnessed (the applicant) physically assaulted detainee [name redacted] by repeatedly punching him on his head several times.’
[34] G4, page 100.
On 10 January 2022, the Applicant physically assaulted another detainee. The other detainee was admitted to hospital.[35] When asked what had transpired, the Applicant stated:[36]
‘… detainee [redacted] was disrespectful to him that’s he punched and put him to sleep.’
[35] G4, pages 97-98.
[36] Op cit.
On 19 May 2022, the Applicant was involved in a physical altercation in Immigration Detention.[37] Immigration Detention staff later found two improvised weapons in the room the Applicant shared with another detainee.
[37] G4, page 94.
On 27 June 2022, Immigration Detention security staff at to implement an unplanned use of force against the Applicant and a fellow detainee to stop them further assaulting each other:[38]
‘About 10:39 hours Detention Service Officer (DSO) [redacted] initiated a Code Black (officer needs assistance) within the International Health and Medical Services (IHMS) building due to Detainee [redacted] walking out from his medical appointment into the High risk waiting area where Detainee KAIFOTO was retrieving his medication. At this time Detainee KAIFOTO and Detainee [redacted] began to become aggressive and hostile to one another within the waiting area.
Both Detainees began to engage in a physical altercation with each other by attempting to grab and hit one another when at this time Emergency Response Offices (ERT) were within the vicinity (sic). ERT [redacted] and ERT [redacted] Used Force in a control and restraint technique by separating Detainee KAIFOTO from Detainee [redacted] to restrict both detainees from further assaulting each other.’
[38] G4, page 92.
On 25 July 2022, the Immigration Detention records state that:[39]
‘On 25 July 2022, (the Applicant) displayed abusive aggressive behaviour towards International Health Medical Services (IHMS) staff during Opioid Substitution Treatment Program (OSTP) at the clinic at Villawood Immigration Detention Centre (VIDC).
At approximately 10:35 hours, (the Applicant) became upset, raised his voice and became verbally abusive when IHMS staff requested to sight his Detainee Identification card.
(The Applicant) was directed to lower his voice, which he complied with immediately.
(The Applicant) was administer (sic) his OSTP medication and returned to his compound.’
[39] G4, page 91.
On 27 August 2022, a fellow detainee in Immigration Detention alleged that the Applicant had assaulted him. The record of the incident states that security staff checked a video recording and observed from the recording the Applicant striking the detainee twice towards his head and pushing him before turning around and walking away.[40]
[40] G4, page 89.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and section 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with sections 501(6) and 501(7), oblige the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in section 501(6) of the Act. A person fails the test if they have a ‘substantial criminal record’ as defined by section 501(7) of the Act.

A ‘substantial criminal record’ includes the situation where a person is sentenced to a term of imprisonment of 12 months or more; per section 501(7)(c) of the Act.
Under section 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in Regulation 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision if:
(a)the person whose visa has been cancelled makes representations in accordance with the invitation; and
(b)the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
ISSUES
Character test
The Applicant’s visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (sections 501(6)(a) and 501(7)(c) of the Act).
On 2 July 2004 the Applicant was convicted of several offences. On 19 June 2006, the Court of Criminal Appeal maintained the terms of imprisonment for these offences. These offences included ‘Aggravated sexual intercourse without consent did maliciously inflict ABH’, which resulted in a term of 6 years’ imprisonment.
Consequently, the Applicant does not pass the character test due to the operation of

sections 501(6)(a) and 501(7)(c) of the Act.
Accordingly, section 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
The remaining issue for the Tribunal to consider under section 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ for revocation.[41] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation at the time of its decision.[42]
[41] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[42] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Is there another reason why the cancellation of the Applicant’s visa should be revoked?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 approved the reasoning in Viane[43] and at [27] identified the following principles as relevant to the statutory task conferred by s 501CA(4):
‘… (1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.…’
[43] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When the Tribunal is assessing and evaluating the factors weighing for and against revoking a visa cancellation, it is bound by section 499(2A) of the Act to comply with Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction or Direction 90”).[44]
[44] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at para 38.
The Direction
Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act. Decision makers under the Act, except for the Minister acting personally, must apply the Direction.[45]
[45] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, at [4] (Rares, O’Callaghan and Jackson JJ).
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[46]
[46] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles set out in paragraph 5.2 of Direction 90 inform the decision-making process:[47]
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-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.
3The 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.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[47] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a decision-maker must take into account the primary and other considerations described in Paragraphs 8 and 9 of the Direction in determining whether to set aside or affirm the delegate’s non-revocation decision.
Paragraph 8 of the Direction provides the following primary considerations:
(i)protection of the Australian community from criminal or other serious conduct;
(ii)whether the conduct engaged in constituted family violence;
(iii)the best interests of minor children in Australia; and
(iv)expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
This does not preclude the Tribunal giving a Paragraph 9 consideration the equivalent of, or even greater weight than a primary consideration, which turns on the specific circumstances of each case.[48] The weighing process is determined by decision-makers exercising the relevant power under the Act.[49]
[48] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J).
[49] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The following is a summary of the evidence before the Tribunal including the evidence of witnesses who appeared before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of Section 501G of the Migration Act, documents tendered by the Respondent, evidence in additional written statements if provided and submitted to the Tribunal and evidence given by the witnesses at the hearing in response to questions in examination-in-chief, re-examination, under cross-examination and from the Tribunal.
Documentary evidence
The hearing received written evidence, which is attached to this Decision and marked ‘Annexure A’. The following documents were tendered into evidence:
(a)G Documents numbering 394 pages;[50]
(b)Supplementary G Documents numbering 39 pages and containing the 5 January 2022 letter from the Department of Home Affairs notifying the Applicant of his visa cancellation, with annexures;[51]
(c)Respondent’s Tender Bundle numbering 41 pages;[52]
(d)Supplementary Tender Bundle numbering 295 pages;[53]
(e)Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) dated 7 December 2022;[54]
(f)Aide memoire in relation to the Applicant’s offences and cover email.[55]
[50] Exhibit 1,G documents.
[51] Exhibit 2.
[52] Exhibit 3.
[53] Exhibit 3.1.
[54] Exhibit 4.
[55] Exhibit 10.
The Applicant has tendered statements from:
(a)The Applicant (undated within the G Documents);[56]
(b)The Applicant’s wife, Kasanita Kaifoto;[57]
(c)Jacob Waddell, the Applicant’s former son-in-law (undated and unsigned);[58]
(d)Mele Teukisiafoou Teupa Marosevic, the Applicant’s eldest child;[59]
(e)Vahai Justin Kaifoto, the Applicant’s son (undated and unsigned);[60]
(f)Kauata Kaifoto, the Applicant’s daughter (undated and unsigned);[61]
(g)Statement of AB dated 28 January 2022, the Applicant’s grandson by his daughter, Kauta Kaifoto;[62]
(h)Statement of Vahai Teaupa dated 30 November 2022, the Applicant’s adoptive brother;[63]
(i)Statement of Otolose Teaupa dated 23 November 2022, member of Applicant’s family.[64]
[56] G1, pages 8-15 and G4, pages 279-313.
[57] G4, page 314.
[58] Exhibit 5.
[59] Exhibit 6.
[60] Exhibit 7.
[61] Exhibit 8.
[62] G documents. Page 323.
[63] Exhibit 11.
[64] Exhibit 9.
The witnesses who gave evidence during the hearing were:
(a)Jacob Waddell;
(b)The Applicant, Paea Kaifoto;
(c)AB, the Applicant’s grandson who is under 18 years of age;
(d)Kauata Kaifoto, the Applicant’s daughter;
Jacob Waddell’s Evidence
Key aspects of Mr Waddell’s evidence are described below:
Examination-in-chief
Mr Waddell affirmed his statement.
Cross-examination
Mr Waddell stated that the Applicant had most recently gone to prison in 2020 in relation to domestic violence charges and showed of familiarity the Applicant's previous convictions and in terms of imprisonment.
He agreed that it would be a good idea for the Applicant to be subject to a "no drug and alcohol" order.
He did so on the basis that many of the Applicant’s convictions have involved the Applicant being under the influence of alcohol or drugs or both. He agreed that the drugs involved were heroin, cocaine, methamphetamine and alcohol.
He claimed that the Applicant was under the influence of drugs in relation to the 2020 offences.
Mr Waddell also stated, as described in his statement, that there should be an "no criminal organisations affiliation order" made in respect of the Applicant. He explained this because of the Applicant's prior affiliation with a motorcycle gang. He qualified this by asserting that the Applicant was no longer affiliated with the gang.
He claimed that the Applicant had ceased affiliating in 2014 but qualifies this by stating that there was an apparent affiliation in 2020 with someone in the immigration detention centre.
He subsequently accepted that the Applicant had been photographed wearing a Lone Wolf gang T-shirt in February 2016.[65]
[65] G1, pages 8-14 and G4, page 106, pages 242-278.
Mr Waddell explained that he had been in a relationship with the Applicant's daughter but had terminated the relationship for personal reasons. He stated that he enjoyed a personal relationship with the Applicant and also involved his son, who is the Applicant's grandson, in that relationship.
Re-examination
Mr Waddell had stated that he had never seen the Applicant lose his temper.
He also described the background and context of the Applicant coming to Australia and the death of his sister from leukemia.
The Applicant’s evidence.
Key aspects of the Applicant’s evidence are summarised below:
Examination-in-chief
The Applicant affirmed his handwritten statements.[66]
[66] Transcript, page 14, lines 6-11.
The Applicant gave evidence as to how he came to Australia when he was in his early 20s. He described his sister being sick, her hospital care and her subsequent death.[67]
[67] Transcript, page 19.
He gave evidence of his early childhood in Tonga, including allegations of sexual abuse by female prisoners at the prison centre where his stepmother was an officer.[68]
[68] Transcript, page 20.
He stated that he had no relatives left in Tonga.[69]
[69] Transcript, page 21.
He stated that in seeking consolation for what had happened to his sister he took drugs and alcohol as no one helped him with his trauma.[70]
[70] Transcript, page 21.
Cross-examination
The Applicant agreed that he had become a heavy drinker by the age of 15 in Tonga.[71]
[71] Transcript, page 22.
He recounted his service with the Tongan army and agreed the received basic training and also trained as a boxer.[72]
[72] Transcript, page 23.
He then stated that he had ceased boxing around 1988.[73]
[73] Transcript, page 24.
He stated that he has worked as a factory labourer, a security guard and a nightclub doorman but that he last worked the pay in either 2017 or 2018.
He has four children under the age of 18 at present through different mothers.
He has not spoken with these four children since he entered immigration detention in 2020.[74] He has not provided any financial support since 2019.
[74] Transcript, pages 27-28.
He has several grandchildren under the age of 18 and these grandchildren occasionally visit him in immigration detention.
Whilst admitting to joining an outlaw motorcycle gang in 2013, the Applicant was evasive in terms of when he ceased to be affiliated with the gang.[75]
[75] Transcript pages 29-30.
He claimed to have joined the gang to get his sons out of it or minimise their involvement. He subsequently agreed with Ms Dejean’s question that his sons had left the gang by 2012.
The Applicant stated that he needs a left knee reconstruction and has arthritis in both knees for which he takes medication.
He stated that the last time he had taken illegal drugs was two days before this hearing. The drug involved was methamphetamine.
Ms Dejean then questioned the Applicant regarding his 2006 convictions and his 2010 referral to the CUBIT sex offender program. He claimed to have no memory of his comments even when the document was presented to him. In the document, the Applicant had claimed that the sexual assaults for which he was convicted had never happened, that he was not guilty and that the person responsible for the sexual offending was the woman in question.
When questioned about his March 2015 apprehended violence order, he denied ever saying to the woman involved that he could chop her up and feed her to pigs and that he might put a bullet in her head.
At this point Mr Waddell agreed to accept the police records as correct.
The Applicant denied knowing that the victim of his February 2020 breach of an apprehended violence order was pregnant and also stated that he did not remember. He further added that the woman had subsequently told him that there was no baby.
Ms Dejean took the Applicant through his November 2002 and August 2002 assaults where he had previously admitted to hitting the victims but in one case said "it was not a full on bleeding, just a backhander". The Applicant stated that he could not recall that incident.[76]
[76] Transcript, page 46.
There was a discussion over whether the statement in the request for revocation was done in the Applicant’s handwriting or not. The Applicant denied that he had written the following statement:[77]
‘I believe my cancellation of my Visa should be overturned as I have not committed an offence to a minor or served 12 months in jail.’
[77] G4, page 262.
This led to a discussion on which the documents within the G Documents featured the Applicant's true signature as opposed to someone else signing on his behalf.
The Applicant conceded that he had been imprisoned for six years.[78]
[78] Transcript, page 50.
The Applicant agreed with the summary of the rehabilitation courses he had undertaken in prison.
The Applicant claimed he had changed his attitude towards women since 2010.[79]
[79] Transcript, page 52.
The Applicant claimed that the 27 August 2022 assault on a fellow detainee was more of a playful joke then an assault or vicious act and that in the case of the detainee who was subsequently taken to hospital, it was that detainee’s fault as they had started the fight.
Re-examination
The Applicant states that he does not recall any of the assaults between 2002 and 2004 because he was under the influence of alcohol and cocaine.
He states that now that he has daughters and granddaughters, he recognises that women need to be well respected.
AB’s Evidence

AB is the Applicant’s grandson by his daughter, Kauata. Key aspects of AB’s evidence are summarised below:
Examination-in-chief
AB affirmed his statement.[80]
[80] Exhibit 11.
AB stated:[81]
‘Waddell: So, in your statement, you say - the word is:
“My grandpa is a very special person to me. He’s like that person I’ve never had.”
Waddell: Can you tell me why he’s like that person that you’ve never had?
AB: Because when I was growing up, I never had a father figure. My grandpa has always been there for me. Like, he’s always been the person to help my mum out when (indistinct words).
Waddell: So, you never had a father figure. Does that mean that your father has never been around?
AB: Yes.’
[81] Transcript, page 73, lines 35 – 46.
He further stated that:
‘Waddell: And he provides for you, your mum and your two siblings. Who’s your two siblings?
AB: BB and CB.
Waddell: And how old are both of them?
AB: BB is three years old and CB is eight years old.
Waddell: And everyone’s in the same boat I’m guessing?
AB: Yes.’
The Respondent chose not to cross examine AB.
Kauata Kaifoto’s Evidence
Kauata Kaifoto is the Applicant’s daughter. Key aspects of AB’s evidence are summarised below:
Examination-in-chief
She affirmed her statement.[82]
[82] Exhibit 8; MFI 2.
She recounted her relationship with her father and her past de facto relationships.
She stated in response to a question from Mr Waddell:[83]
‘Waddell: Growing up; you’ve never seen your dad a violent man?
KK: No.’
[83] Transcript, page 84, line 29.
In answer to a question regarding the effect on the family if the Applicant was returned to Tonga, the witness stated:[84]
‘Waddell: You also write that it would be an even bigger burden on your family if he goes back. So, like, in a big picture, like, what do you mean. Not only for yourself but for your family?
KK: Everyone here, my brothers, my sisters, my nephews, my nieces. The only way they would be able to physically see him is if we flew over there. Nobody has that kind of money. I couldn’t even afford the money to help him.’
[84] Transcript, page 85, lines 19-28.
Cross-Examination
In response to a question regarding support by the Applicant, Ms K stated:[85]
[85] Transcript, page 88, lines 22-41.
‘Dejean: And your dad does not - does he send you any payments? Regular payments?
KK: Not since he’s been locked up, definitely not. But before he was out, he did help financially. He had a car that I was able to drive, to take my kids to their appointments and stuff - school. When he would have money, he would help me out. He would help the kids out. He was worried if we had enough food.
Dejean: His evidence to the tribunal was that he last was in paid employment in 2017. Do you think he’s given you any payments since 2017?
KK: It’s been a while.
Dejean: If you don’t remember, that’s fine. But I’m just asking, given that he was not in paid employment?
Dejean: But would it be fair to say that at present, you do not - you’re not currently receiving any payments from Mr Kaifoto to support you or your children?
KK: At the moment?
Dejean: Yes?
KK: Definitely not. I can’t - yes - I can’t really remember when exactly when he has (indistinct) but when my dad did have money and I need it, he would give it to me.’
In response to a question regarding whether she was concerned that her father would commit acts of domestic violence again, she stated:[86]
[86] Transcript, page 89, lines 12-18.
‘Dejean: Are you concerned that he might behave in a similar way in the future?
KK: No.
Dejean: Why is that? Why do you have no concerns?
KK: Because - I don’t know what - I don’t know what the detention centre has done to him but I know that my father has changed since being in there. I don’t feel like he’s a threat to anyone.”
And:[87]
‘Dejean: Are you aware that he has also been violent in immigration detention and on one occasion punched a man and rendered him unconscious because he was disrespectful?
KK: I am aware that where he is is not normal.
Dejean: Are you aware that he was taking ice whilst he was in immigration detention?
KK: No.
Dejean: So the act of violence in immigration detention took place last year and he’s been taking ice when it’s available. Does that give rise to any concerns to you?
KK: It just makes me think that he’s in a phase but he shouldn’t be.’
[87] Transcript, page 90, lines 26-35.
In response to questions regarding her father's health, the witness responded as follows:[88]
‘Dejean: Are you aware of his health concerns at present?
Yes.
Dejean: And what do you understand those to be?
I knew years ago that he was suffering from arthritis and he would take painkillers for the pain. I know that it’s gotten worse. I can hear him struggling to breathe when I talk to him and he talks to the kids when we video. When we video call, I can see how bad it’s gotten.
Dejean: And his knees? Are you aware of any problems with his knees?
KK: Yes.’
[88] Transcript, page 90, lines 37-45.
Re-examination
Mr Waddell sought to clarify conditions inside the immigration detention centre with the following exchange:[89]
‘Waddell: Another question you were asked is him doing ice inside the detention centre, that’s what was said. In your opinion, you said, “He’s in the wrong place”, can you elaborate on that?
KK: He’s in a immigration detention centre. Why does he have access to drugs?
Waddell: And also in regards to punching a man unconscious, you said it’s the environment he’s in. Since you do have that kind of relationship with your dad, what do you mean by “the environment he’s in”?
KK: I can only assume that there are other people just like him waiting to be deported. They’re all there for a reason. So, it’s definitely going to be a hostile place. Everyone’s going to be on edge.’
[89] Transcript, page 91, lines 35-45.
THE TRIBUNAL’S CONSIDERATION OF THE EVIDENCE
The Tribunal found the Applicant’s oral evidence to be self-aware and evasive at times. He offered no recollection or memory of key matters, such as his historic offending, when he was questioned about these in cross-examination. He was honest about his drug use in immigration detention but downplayed his violent acts in immigration detention. At other times he attempted at times to minimise his culpability for his crimes and actions or place them in a different context to that suggested by the available documentary evidence.
Mr Waddell’s oral evidence was given forthrightly and with no effort to qualify or evade issues. His attitude towards the Applicant’s conduct did appear to be naïve at times.
AB presented as honest and offered a useful insight into the Applicant’s relationship with his family.
Kauata Kaifoto presented as honest and her oral testimony will be considered under Other Considerations (b) and (d).
The Tribunal will now assess the facts and evidence of this case as per the Direction.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
Paragraph 8.1 of the Direction states:
1When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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.
2Decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the Applicant’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in considering the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Tribunal has considered the extensive remarks by His Honour Judge Dodd of the New South Wales District Court on 2 July 2004 when sentencing the Applicant.[90]
[90] G4, pages 38-60.
The Tribunal has considered the Applicant’s[91] and Respondent’s[92] submissions about Paragraph 8.1.1 of the Direction.
[91] Applicant’s SFIC.
[92] Respondent’s SFIC, paragraphs 42-44.
In essence:
(a)The Respondent contends that the Applicant’s offending must be viewed as very serious[93] as it includes violent sexual crimes against women and family violence: paragraphs 8.1.1(1)(i), (ii) and (iii) of Direction 90.
(b)The Applicant’s representative contends[94] that seriousness of the Applicant’s offending is diminished by the passage of time between the index offending, for which he was sentenced in 2006, and today.
(c)The Applicant himself however has stated that:[95]
“I know my offences are very serious …”
[93] Transcript, page 101, lines 10-16.
[94] Applicant’s SFIC, paragraphs 33-34.
[95] G1, page 9, line 1.
Paragraphs 8.1.1(1)(a)(i) 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence are viewed very seriously.
The Applicant’s National Criminal History Check (dated 15 July 2020)[96] makes it clear that the Applicant’s offending involved violent crimes, sexual crimes and crimes of a violent nature against women.
[96] G4, pages 33-37.
The nature of his separate relationships with the female victims of his violence is likely to place his offending within the category of acts of family violence below.
Paragraph 8.1.1(1)(b)(i)
This paragraph is not relevant as the Applicant has not committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(ii)
This paragraph is not relevant as the Applicant has not committed any offences against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to conduct forming ‘...the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. There is no reference in either party’s oral or written submission propounding or mentioning this component of the Direction. The Tribunal finds that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iv)
This paragraph is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct. There is no reference in the material to a crime committed while the non-citizen was in immigration detention (although the Tribunal notes the acts of violence the Applicant has been involved in while in immigration detention), during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or for an offence against section 197A of the Act.
Paragraph 8.1.1(1)(c)
In applying this sub-paragraph, the Tribunal is precluded from considering sentences imposed on this Applicant for:
(a)any violent offending he may have committed against women,
(b)acts of family violence; and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.
A review of the Applicant’s National Criminal History Check (dated 15 July 2020)[97] suggests that the convictions recorded on 9 February 1990 fall outside these exclusionary sets.
[97] G4, pages 33-37.
The penalties imposed for these offences suggests that the offences were viewed by the court to fall at the lower end of the range in terms of seriousness.
The Tribunal considers that this paragraph carries some but non-determinative weight in favour of the delegate’s decision to not revoke the cancellation of the Applicant’s visa.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.
With recourse to the Applicant’s National Criminal History Check (dated 15 July 2020),[98] the Tribunal finds that while the Applicant’s offending can be characterised as frequent, it is reasonable to describe the trend as one of decreasing seriousness – however this description is only relative, as the Applicant’s offences move from violent sexual assaults to breaching ADVOs. Paragraph 8.1.1(1)(a) characterises these crimes as very serious.
[98] G4, pages 33-37.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of the Applicant’s repeated offending. The cumulative effects of the Applicant’s offending are likely significant, traumatic and long-lasting for his female victims and have imposed significant externalities and costs on his family and the Australian community The combined cumulative effect supports a finding that the Applicant’s offending has been of a very serious nature.
Paragraph 8.1.1(1)(f)
This paragraph is concerned with whether the Applicant has provided false or misleading information to the Minister’s Department, including by not disclosing criminal offending.
The Applicant provided false and misleading information to the Department.
He did this twice - when returning to Australia on 18 November 1998 and 15 December 2000 – by not declaring his criminal convictions on his Incoming Passenger Cards.
In his written submissions dated 12 July 2022, the Applicant claimed that he did not remember to declare them and misunderstood the questions as referring to criminal convictions in Tonga.
While his actions were dishonest, they are mitigated by the fact that the Applicant has correctly declared his criminal convictions at other times.[99]
[99] G4, pages 288-306.
The Tribunal finds that these incidents add weight towards a finding that the Applicant’s conduct was serious.
Paragraph 8.1.1(1)(g)
This paragraph involves the issue of whether the Applicant has re-offended since being formally warned about the consequences of further offending in terms of their visa status to remain here.
On the papers, it appears that the Applicant had been warned on 18 December 2002 and 21 April 2009 that any further criminal offending by him in Australia could lead to his visa’s cancellation.
However, the question of whether the Applicant’s signatures on these warnings are genuine was raised by the parties during Ms Dejean’s cross-examination of the Applicant[100] based on disparities between the Applicant’s alleged signatures.
[100] Transcript, page 47, line 46 – page 50, line 9.
Out of an abundance of caution, the Tribunal deems this ground as not relevant and allocates a weight of not relevant to it. The Tribunal does however agree with Ms Dejean’s obiter dicta that allowing someone else to sign is potentially a further offence.
Tribunal finding: The nature and seriousness of the Applicant’s conduct
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1).
With reference to the relevant and applicable paragraphs to referred to above, the Tribunal finds that the totality of the Applicant’s unlawful conduct in Australia should be characterised as very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.2(1) of the Direction states:
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.
This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability.
In assessing the risk, the Tribunal has first considered the Applicant’s and Respondent’s oral and written submissions about sub-paragraph 8.1.2 of the Direction.
The Applicant, through his representative, contends that he presents with a significantly lower risk of reoffending in future due to his family, his age and his health.
The Respondent contends that the nature of the harm that would be caused if the Applicant were to reoffend is very serious.
Despite being released on parole in 2010, the Applicant went on to commit further offences of family violence.
The rehabilitation courses the Applicant completed were last in 2011, with most completed in 2005. Further offending occurred after that, leading the Tribunal to question the efficacy of the courses in the Applicant’s case.[101]
[101] G4, pages 325-336.

There is no recent evidence that the Applicant has addressed his drug abuse, psychological health issues, anger management or violent behaviour, despite claiming he recognises these factors and their contribution to his offending.
The Applicant has most recently engaged in acts of violent physical assault in immigration detention, most recently in August 2022, as well as verbal altercations (whose occurrence was not disputed by the Applicant).
Paragraph 8.1.2(1)
This paragraph provides that, in considering the risk to the Australian community, a decision-maker 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.
Additionally, some conduct and the consequential harm that would be caused, if that conduct were to be repeated, is so serious that any risk of such conduct being repeated may be unacceptable.
Paragraph 8.1.2(2)
This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:
(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 the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Paragraph 8.1.2 (2) (a): The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct.
The terrible nature of the harm to individuals, especially women, or the Australian community, if the Applicant was to re-offend in the manner of his prior offending is clear to the Tribunal.
Further similar offending would result in significant physical and psychological harm to a victim. The Australian community’s policing, medical and judicial sentencing resources would be again required to deal with the consequences of such conduct.
Paragraph 8.1.2 (2) (b): The likelihood of the non-citizen engaging in further criminal or other serious conduct.
Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has holistically considered the totality of the evidence in addressing the likelihood of the Applicant engaging in further criminal or serious conduct.
The issues surrounding consideration of risk under s 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have also been extensively considered by the Tribunal and superior courts.[102]
[102] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, at [194] stated that the reference to ‘criminal conduct’ is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’
The clear legislative intention is that the threshold is whether there is ‘a’ risk.[103]
The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[104]
On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
‘The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
[103] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
[104] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal (FC)), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
‘… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk”. Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’
In Sabharwal(FC) the Full Court found that in that case the Minister had found that there was a risk that the Applicant would engage in criminal conduct in Australia. The Full Court stated that the Minister had said he ‘could not rule out the possibility of further offending by Mr Sabharwal.’[105] The Full Court, citing Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588, 608 [62] per Justice Moshinsky, found that the Minister’s statement was, in substance, also a finding that there was a risk of the Applicant
[105] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (“Sabharwal (FC)”).
re-offending.
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575):[106]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’
(Added emphasis.)
[106] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].
This decision was similarly cited by Kerr J in the first instance decision in Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 at [80]–[82] where His Honour noted:
‘Their Honours’ observations about the task that must be undertaken by a decision maker required to evaluate whether something may or may not occur in the future are not limited to the context in which they arose. They are timeless.’
Justice Mortimer also explored the notion of risk and its nexus to future possibility in Murphy v Minister for Home Affairs [2018] FCA 1924, [37], where Her Honour noted:[107]
‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
Tribunal finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
[107] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
The potential harm arising from a repeat of the Applicant’s conduct encompasses a broad range of physical, psychological, financial, and societal consequences.
The Applicant’s conduct to date has imposed significant costs on the Australian community in terms of the investigative, judicial, and other resources required to address his offending.
Aside from the 21 October 2010 parole report[108] which assessed the Applicant’s risk of sexual offending recidivism as ‘low-moderate’ relative to other male sexual offenders, the Tribunal does not have the benefit of an expert risk assessment to assist it in its consideration of this issue. However, the reasons underlying the Applicant’s offending are not complex.
[108] Exhibit 3.1, pages 93-94.
The Applicant is a violent recreant recidivist, especially towards women. This state is aggravated by his consumption of alcohol and illicit or illegal drugs which he shows no sign of moderating and his apparent inability to control his temper.
The continuity of his conduct from 1990 to 2022 demonstrates that there is a risk or likelihood of the Applicant committing criminal conduct or serious conduct if allowed back into the Australian community.
Even in immigration detention, the Applicant has engaged in verbal and physical altercation, including assaulting detainees by punching them and on one occasion causing a detainee to become unconscious, and on another occasion to seek medical assistance.
His boxing training and experience appears to help him deliver punches and facilitates his resorts to violence to escalate or terminate disputes.
This behaviour is unacceptable. It supports the view that the Applicant has an ongoing inability to manage his anger.
In his submission dated 8 October 2022, the Applicant does not resile from the incidents in immigration detention. He instead offered exculpatory explanations as to how these transpired, saying he was the protector of detainees and not the one instigating confrontations, claimed remorse and concluded by saying that he had reacted to these situations in the only way he knows. The Tribunal does not consider that the Applicant was being genuine when he made these comments.
He submits that, due to his health issues and problems with his knee, he qualifies for a room for himself only, but does not avail himself of this option because he takes in detainees that need support.
Even if the Applicant’s remorse is genuine, the Tribunal considers his behaviour in immigration detention to be of serious concern. It shows he has yet to overcome his problem with anger management that contributed to his past offending.
The Tribunal finds that the risk to the Australian community should the Applicant commit further offences or engage in serious conduct both clearly exists and is material.
His crimes are of a violent and sexual nature against intimate partners, the deterrent effect of significant periods of incarceration has not worked and rehabilitation courses have not prevented further offending.
Conclusion: Primary consideration 1: Protection of the Australian community
This consideration weighs heavily and determinatively against revocation of the delegate’s decision to cancel the Applicant’s visa.
Primary consideration 2: Family violence committed by the non-citizen
Paragraph 8.2 of the Direction states:
1The 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 (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
(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 non-citizen’s favour. This includes warnings about the noncitizen’s migration status, should the non-citizen engage in further acts of family violence.
Paragraph 4 of the Direction contains this definition:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member),or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
Tribunal’s Consideration
Much of the Applicant’s offending since 2002 was violent, sexual and focused on women with whom he was in a relationship.
The Tribunal has considered the circumstances of this offending as set out in the transcripts of the sentencing proceedings in the District Court of New South Wales dated 2 July 2004 and in the Court of Criminal Appeal of New South Wales’s decision dated 19 June 2006.
In summary, the Applicant, though still married, was found by Judge Dodd and the Court of Criminal Appeal to have been in separate relationships with two other women between 1999 and 2002. He committed offences, including sexual assaults, on both women.
Judge Dodd also found the Applicant to have been in a relationship with a third woman. This relationship led to the Applicant’s separate 24 January 2002 conviction for assault.[109]
Were the victims of the Applicant’s violent offending a member of the Applicant’s family for the purposes of this Primary Consideration of the Direction?
[109] G4, pages 50-51.
The expression “member of the person’s family” is not defined in the Direction. Nor is the word “family”. However, Section 5G of the Act provides that certain people, including a de facto partner, are taken to be members of a person’s family. The expression “de facto partner” is defined in Section 5CB of the Act:
Section 5CB: De facto partner
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with Another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a)they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c)they:
(i)      live together; or
(ii)     do not live separately and apart on a permanent basis; and
(d)    they are not related by family (see subsection (4)).
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
As stated previously, the Applicant was legally married at the time he committed violent acts of sexual offending against his female victims. Judge Dodd’s sentencing comments[110] and the reports prepared by NSW Police in relation to the Applicant’s violent sexual offending state that the victims of his offending were in ‘a relationship’ with the Applicant and that ‘they were living together’ with the Applicant.[111]
[110] G4, pages 38-60.
[111] TB.
The facts that the Applicant was ‘in a relationship’ and ‘living together’ with the victims suggests that the serial victims’ of the Applicant’s violent sexual offending were in a de-facto relationship with the Applicant at the time of the offending, despite the Applicant being legally married to someone else at the time. The possibility of the Applicant being in a de facto relationship with someone else and at the same time being legally married to someone else is recognised in s 4AA(5)(b) of the Family Law Act 1975 which states:
‘…a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.’
Considering the above, the other evidence before the Tribunal and the Applicant’s oral evidence at the hearing in which he confirmed being in a de-facto relationship with the victims, the Tribunal concludes that the Applicant’s victims can be classified as being in de facto relationships with the Applicant and consequently can be characterised as members of his family unit for the purposes of this primary consideration.

The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that the Applicant poses a risk of re-offending.
The Tribunal is satisfied that the Applicant has breached the Australian community’s expectations by his criminal offending which involved very serious breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian government not to allow him to remain in Australia.
Conclusion: Primary Consideration 4: Expectations of the Australian community
Primary Consideration 4 weighs strongly and determinatively in favour of affirming the delegate’s decision to cancel the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary at this point to consider the Other Considerations listed in paragraph 9 of the Direction. The Tribunal will now consider each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations.
Other Consideration(a): International non-refoulement obligations
Sub-paragraph 9.1 of the Direction provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C 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.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider non-refoulement 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. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non-refoulement obligations.
The Applicant has not made any claims which require assessment in relation to Australia’s international non-refoulement obligations, nor does the other available evidence indicate that such an assessment is necessary in this case.
Conclusion and allocation of weight to Other Consideration (a): International non-refoulement obligations
The Tribunal deems this Other Consideration (a) as not relevant .
Other Consideration (b): Extent of impediments if removed
Sub-paragraph 9.2(1) 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’s claims – written
In his undated statement, the Applicant states:[120]
‘I have no one in tonga (sic) left and all I have is my family here. I don’t know where ill (sic) be without my family and I hope you can take into consideration on review.’
[120] G1, page 14.
In his Personal Circumstances Form signed by the Applicant on 1 February 2022, responding to the question “Describe any current impact on family members and/or any likely impact on them in the event of a negative s501 decision outcome”, the Applicant wrote:[121]
‘The negative outcome will impact my family a lot know that nothing or no one is in Tonga for me. They financially wont (sic) be able to see me, so as I am at the back end of my life, they will constantly worry.’
[121] G4, page 255.
In his Personal Circumstances Form signed by the Applicant on 18 August 2020, the Applicant answered the same question in a similar manner[122] and referenced his youngest daughter.
[122] G4, page 272.
In his unsworn statement dated 9 August 2020 the Applicant describes similar feelings.[123]
[123] G4, page 287.
In his letter dated 18 July 2022,[124] the Applicant wrote:
‘I have nothing left in Tonga because I am a love child and not in title to anything. I can’t walk probably (sic) because I have medical condition on both of my knees, my eyes. my (sic) vision is starting to go. need (sic) a knee operations both knees.’
[124] G4, page 308.
The Applicant’s claims – submissions by his representative
The Applicant’s representative, Mr Waddell, made the following submissions on this point:[125]
‘Also, in regards to the 9.1, the international non-refoulement obligations, with his health, it is deteriorating and even though sending him over may just take a bit of a change, there isn’t enough support for him to be able to get, as he did say, he would need help getting out of bed. And Ms Dejean, when she was examining Kauata, she acknowledged that he would need help getting out of bed. Which then acknowledges that without the support he wouldn’t be able to live properly.
Also, in Tonga it’s limited employment opportunities which for a man that’s slowly - his health is slowly deteriorating, with arthritis in his right hand, and his two knees requiring a knee reconstruction, it would limit his opportunity to be able to get employment which will mean that he will have to live off the land which does require hard labour. Again, he’s not capable of doing so.
His age should be strongly considered. Because the average age of (indistinct words) is 72.1 and he is 60 years old at this time.
Also, what should be taken into consideration is the social support. Because all his family is here and they don’t have the internet and he will, without money, he wouldn’t have the internet either over there. And then with the 9.3, the impact on victims; it doesn’t really apply because he hasn’t had any association with the 2002. And with the 2014, they are on talking basis for their kids.
The strength and nature ties. Yes, he has resided here since he was 21. So he’s been here for 39 years which, in my opinion and many others, is he’s more Australian than we are.
The strength to the people in Australia, all his family is here. His brother, he has multiple siblings, he has grandkids, kids and he has been working with the church within the youth, which is many other kids which would have a negative impact if he was to be sent back.
Also, his plans to come out is to be able to work in the construction industry which will then positively apply to the business side of Australia. And also, to be able to help kids within the church. And that’s all I have.’
[125] Transcript, page 102, lines 9-44.
The Tribunal considered that Mr Waddell’s opening reference to non-refoulment was a slight confusion with other consideration (b), which the substantive aspects of his submission go to and the Tribunal has considered Mr Waddell’s comments under this paragraph.
The Respondent’s written submissions
The Respondent made the following submissions on this point:[126]
(a)The Applicant arrived at the adult age of 22 and is currently 60 years old. This is not considered ‘elderly’, and there is no professional evidence of any serious medical condition requiring ongoing treatment. Cultural/linguistic barriers would be limited, as he arrived in Australia as an adult, and because English is an official language in Tonga.
(b)If it is accepted that he has no family in Tonga, given the length of time since his departure, the likely lower standard of health care and welfare available, it is likely that there will be some period of settlement required. It may also be accepted that separation from family and friends, and general networks such as the church in Australia will involve some hardship to him and those impacted.
(c)This consideration could weigh somewhat in favour of revocation.
[126] See Respondent’s SFIC.
The Tribunal has considered the extent of any impediments that the Applicant, if removed from Australia to (Tonga), will face in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Tonga), taking into account the specific factors below.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
The Applicant is 60 years of age.
The Tribunal accepts that not being able to return to Australia will cause the Applicant emotional hardship, as well as worry for his family in Australia.
The Tribunal considers that the Applicant suffers from common age-related conditions, although it is acknowledged that there was no expert evidence before the Tribunal as to the Applicant’s health.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal finds that the cultural and any linguistic difficulties the Applicant is likely to experience will be limited, given that the main language in his home country is Tongan, a language he has used before coming to Australia and has likely continued to use in the community. In addition, the second official language in Tonga is English.
The Tribunal also finds that, as the Applicant has not lived in Tonga for a considerable length of time, he is likely to experience an initial lack of social and economic support due to the language barrier.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Applicant submits that he has no family living in Tonga, as his parents and sister have passed away.
The Tribunal considers that the preponderance of evidence shows that the medical and psychological services available in Tonga are not comparable to what is available in Australia and fall below the level of services available in Australia.
Tribunal’s analysis and consideration
The Tribunal has considered the oral and written evidence and, specifically, the Applicant’s written statements and his representative’s submissions.
The Tribunal finds that the Applicant will face practical, financial and emotional hardship returning to Tonga, due to his age and lack of family and social support. His hardship will be further exacerbated by the negative impacts that relocating to Tonga will also have on his family.
Conclusion: Other consideration (b) Extent of impediments if removed
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal finds that this consideration confers some, but not determinative, weight in favour of revocation of the delegate’s decision under review.
Other Consideration (c): Impact on victims
Sub-paragraph 9.3(1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no direct evidence from any of the victims of the Applicant’s offending.
There is what the Tribunal considers to be indirect evidence in the sentencing remarks of Judge Dodd where he notes that he has a victim impact statement from one of the Applicant’s victims and that, after the victim has read most if not all of that into the record, he took it into account in determining a sentence.
Notwithstanding this, both the Applicant and the Respondent contend that this other consideration (c) should be given a neutral weight.
Conclusion: Other Consideration ( c ): Impact on victims
The Tribunal gives this Other Consideration (c) a neutral weight.
Other Consideration (d): Links to the Australian community
Paragraph 9.4 of the Direction requires that decision-makers must have regard to an Applicant's links to the Australian community.
There are two factors which the Tribunal must assess in determining the level of weight allocable to Other Consideration (d). These are:
(a)Paragraph 9.4.1: the strength, nature, and duration of ties to Australia; and
(b)Paragraph 9.4.2: the impact on Australian business interests if the Applicant cannot remain here.
The Tribunal will consider each of these in turn.
Paragraph 9.4.1 Strength, nature and duration of ties to Australia
Paragraph 9.4.1 of the Direction states:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen 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.
In addressing Paragraph 9.4.1, the Tribunal will consider three elements:
(a)First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely.
(b)Second, it is necessary consider the impact of a non-revocation decision by considering the strength, nature, and duration of any other ties the Applicant has to the Australian community.
(c)Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia.
The Tribunal will address each component in turn.
Impact of non-revocation on the Applicant’s immediate family
This first exercise requires identifying the Applicant’s immediate family in Australia.
(a) Immediate family
The Applicant has immediate family members in Australia, being his wife, his two ex-partners (mothers of his minor children) and his six adult children and their families.
There are submissions from the Applicant’s wife, son and daughter, claiming that they need the Applicant in Australia for the continuing financial and practical support that he provides to them as a loving father and grandfather. They fear the impact of removal from Australia may have on him because he has no family in Tonga and that they will not be able to visit him due to lack of finances. They fear that he will die there all alone, like his father did.
The Tribunal has considered the likely impact that affirming the delegate’s decision to cancel the Applicant’s visa will have on the Applicant’s immediate family in Australia and find that those persons may experience some emotional, practical and financial hardship.
(b) Other ties

The Applicant has other ties to Australia, being his extended family which consists of some 20 uncles and aunts, 20 cousins and 15 nieces and nephews, as well as an apparent longstanding involvement with the Free Church of Tonga.
The Tribunal acknowledges the Applicant has lived in Australia for 38 years and has been contributing positively to the Tongan church community in that time.
The Tribunal recognises the negative effect of non-revocation on the other family members, friends and community members in Australia, who will be upset or disappointed by a non- revocation decision.
However, this consideration receives a diminished weight as the Applicant began his offending from 1990 and has been involved in acts of sexual violence and family domestic violence against his partners on a number of occasions. He continued to commit similar offences even after he served a considerable period in prison and had likely received a warning the Department about the consequences for his migration status should he engage in further criminal behaviour.
Australia has a low tolerance of criminal conduct, especially for those like the Applicant who repeatedly engage in violence against women.
Considering the evidence around the Applicant’s immediate family in Australia, the Tribunal finds that the strength, nature and duration of his ties to those immediate family members in Australia have some, but not determinative, weight in favour of revocation of the delegate’s cancellation decision under review.
Paragraph 9.4.2: the impact on Australian business interests if the applicant cannot remain here.
Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with reference to any impact his removal may have on, “Australian business interests”.
The Tribunal finds that this element of Other Consideration (d) is not relevant and will be given a neutral weight.
Findings: Other Considerations
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: is not relevant.;
(b)extent of impediments if removed: this consideration confers some, but not determinative, weight in favour of revocation of the delegate’s decision under review;
(c)impact on victims: has a neutral weight; and
(d)links to the Australian community: carries some, but not determinative, weight in favour of revocation of the delegate’s decision under review.
ADDITIONAL CONSIDERATIONS
Direction No 90 does not limit the other considerations to those listed in the Direction (para 9(1) of Direction No 90).[127]
[127] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1- protection of the Australian community from criminal or other serious conduct:
·This consideration weighs heavily and determinatively against revocation of the delegate’s decision to cancel the Applicant’s visa.
Primary Consideration 2- whether the conduct engaged in constituted family violence:
·This consideration weighs heavily in favour of affirming the delegate’s decision to not revoke the cancellation of the Applicant’s visa.
Primary Consideration 3- the best interests of minor children in Australia:
·This consideration provides limited weight in favour of revoking the delegate’s decision to cancel the Applicant’s visa.
Primary Consideration 4 – Expectations of the Australian Community:
·This consideration weighs strongly and determinatively in favour of affirming the delegate’s decision to not revoke the cancellation of the Applicant’s visa.
The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration.
A comprehensive, holistic and integrated view of the primary considerations, the other considerations in the Direction, favours on balance affirming the delegate’s decision to not revoke the cancellation of the Applicant’s visa.
Consequently, the Tribunal affirms the delegate’s decisions and makes a finding that there is no other reason its discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 18 October 2022 to not revoke the cancellation of the Applicant’s visa.
.

I certify that the preceding three hundred and twenty-one paragraphs (321) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

....................................
Associate
Dated: 1 March 2023

Date of hearing: 6 & 9 January 2023

Advocate for the Applicant:
Mr Jacob Waddell

Solicitor for the Respondent: Ms Hervee Dejean (Australian Government Solicitor)
Annexure A - Exhibit Register

Exhibit Number

Description of Exhibit

Party

Date of Document

Filing Date

1

G Documents (G1-G5)

R

Various

9 Nov 2022

2

Supplementary G Documents (T1)

R

Various

16 Nov 2022

3

Respondent’s Tender book (1-2)

R

Various

7 Dec 2022

3.1

Supplementary Tender bundle

(ST1-ST33, paged 1-292)

R

Various

22 Dec 2022

4

Statement of Facts, Issues and Contentions

R

7 Dec 2022

7 Dec 2022

5

Statement of Mr J Waddell (undated and unsigned)

A

-

23 Nov 2022

6

Statement of Mr M Marosevic on behalf of Mr P Kaifoto (unsigned and undated)

A

-

23 Nov 2022

7

Statement of Mr V Kaifoto (unsigned and undated)

A

-

23 Nov 2022

8

Statement of Ms K Kaifoto (signed), sent via email on 23 December 2022*

*The Tribunal notes an updated copy of this Statement was lodged on 30 December 2022.

A

-

23 Dec 2022

9

Statement of Mr O Teaupa

A

23 Nov 2022

3 Jan 22

10

Aide memoire re offences and cover email

R

-

5 Jan 2023

11

Statement of Vahai Teaupa

A

30 November 2022

6 Jan 2023

Annexure B - Short Form Decision
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2022/8884

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	G Documents (G1-G5)	R	Various	9 Nov 2022
2	Supplementary G Documents (T1)	R	Various	16 Nov 2022
3	Respondent’s Tender book (1-2)	R	Various	7 Dec 2022
3.1	Supplementary Tender bundle (ST1-ST33, paged 1-292)	R	Various	22 Dec 2022
4	Statement of Facts, Issues and Contentions	R	7 Dec 2022	7 Dec 2022
5	Statement of Mr J Waddell (undated and unsigned)	A	-	23 Nov 2022
6	Statement of Mr M Marosevic on behalf of Mr P Kaifoto (unsigned and undated)	A	-	23 Nov 2022
7	Statement of Mr V Kaifoto (unsigned and undated)	A	-	23 Nov 2022
8	Statement of Ms K Kaifoto (signed), sent via email on 23 December 2022* *The Tribunal notes an updated copy of this Statement was lodged on 30 December 2022.	A	-	23 Dec 2022
9	Statement of Mr O Teaupa	A	23 Nov 2022	3 Jan 22
10	Aide memoire re offences and cover email	R	-	5 Jan 2023
11	Statement of Vahai Teaupa	A	30 November 2022	6 Jan 2023

General Division )
Re: Paea Kaifoto

Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Member David Cosgrave
DATE:   10 January 2023
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 18 October 2022 to not revoke the mandatory cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.

...............[SGD]...................
Member David Cosgrave

Date of hearing:	6 & 9 January 2023
Advocate for the Applicant:	Mr Jacob Waddell
Solicitor for the Respondent:	Ms Hervee Dejean (Australian Government Solicitor)