Kingi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2025] ARTA 172

Kingi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2025] ARTA 172 (20 January 2025)
Applicant/s:  Taiehu Boyce Kingi
Respondent:  Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number:                2024/8869

Tribunal: General Member J Cipolla
Place:Sydney
Date:20 January 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that the cancellation of the Applicant’s visa is revoked

……………[SGD]……………………
General Member J Cipolla
Catchwords
MIGRATION – Cancellation of Applicant’s Subclass 444 Special Category Visa – substantial criminal record - protection of the Australian community – family violence – strength, nature and ties to the community – prospects of rehabilitation and re-integration into the community – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Pavey and Minister for Home Affairs [2019] AATA 4198
Secondary Materials
Direction No. 110, Visa cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
Statement of Reasons
BACKGROUND

Mr Taiehu Boyce Kingi (the Applicant) was born in New Zealand in 1991.
The Applicant arrived in Australia as a child, aged 9. After arriving in Australia, the balance of the Applicant’s primary education and his high school education was completed in Australia.
The Applicant left high school in year 10 and at the time he was 14 turning 15. The evidence before the Tribunal indicates that the Applicant has worked full time since he left school and that from aged 18 this has been as a scaffolder.
The Applicant had held a Subclass 444 Special Category visa until it was cancelled by the Department on 29 October 2024 because of the operation of s.501(6)(a) (substantial criminal record) on the basis of s.501(7)(a)(c), due to the fact the Applicant was serving a term of imprisonment of 12 months.
The evidence indicates that the Applicant was sentenced to a term of imprisonment on 15 September 2023 of 12 months duration with the Magistrate applying what he referred to as ‘special circumstances’ meaning that in totality, the Applicant served 7 months of a 12 month sentence. In sentencing Magistrate Richardson sitting in the Armidale Local Court noted that the Applicant had co-operated fully with police in respect to the offending. It was noted the Applicant entered a guilty plea and evidence was adduced which established that the Applicant was affected by alcohol at the time of the offending and that there was an element of provocation involved in the offending. Magistrate Richardson concluded that discounts should be applied to the sentencing for a range of factors. He noted the Applicant has problems with alcohol and anger management concluding that the Applicant should be subjected to a 12 month term noting that “normally a non-parole period would be nine months. I am going to make a finding of special circumstances, he will be in for seven months from today’s date”.
The evidence before the Tribunal indicates that the Applicant was in a relationship with Ms F which ceased in April 2021 as a result of one incidence of family violence which arose as a consequence of the Applicant’s use of alcohol. The evidence indicates that there are 2 Australian citizen children of that relationship H, a son, born in 2019, who is now 5 years old and N, a daughter, born in 2021, who is now 3 years old. Both children reside with their mother Ms F. The evidence indicates that since late 2023 the Applicant and Ms F have resumed a relationship and are committed to the co-parenting of their two children.
The evidence also indicates that the Applicant has a son D from another relationship who was born in 2014 and who resides in New Zealand. The Applicant has no interaction with his son D.
The evidence also indicates that the Applicant has all of his immediate family members and a large number of nieces and nephews resident in Australia with whom he maintains a relationship. The only family members of the Applicant remaining in New Zealand apart for his estranged son are his maternal grandmother who is suffering with dementia and with whom the Applicant does not maintain a close relationship and his grandmothers third husband who is battling cancer.
The Applicant’s Criminal History in Australia
The evidence before the Tribunal indicates that the Applicant, since residing in Australia, has acquired a significant criminal record.
The Tribunal also notes that the evidence indicates that there have been significant gaps in the offending over time. The recurrent theme in the Applicant’s offending has been the use of alcohol.
The Tribunal has before it the Australian Criminal Intelligence Commission disclosable criminal history report with respect to the Applicant which is dated 24 September 2024.
The criminal history report indicates that with respect to the first incident of offending the Applicant was convicted of common assault in the Blacktown Local Court on 11 November 2009 and was fined $250.
The evidence indicates that the Applicant was convicted in the Perth Magistrates Court on 8 November 2010 of disorderly behaviour in public and fined $300.
The evidence indicates that between November 2010 and December 2016 there was no engagement by the Applicant with the criminal justice system.
The evidence indicates that the Applicants’ next interaction with the criminal justice system was when he was convicted in the Liverpool Local Court on 12 December 2016, of driving with a low range of a prescribed concentration of alcohol, first offence, for which he was fined $600, and disqualified from driving for six months.
After the 2016 offending there was a gap in offending until 2019.
The evidence indicates that on 27 August 2019, the Applicant was convicted of a wide range of offences in the Liverpool Local Court that relate to one incident.
The evidence indicates that the Applicant was driving whilst intoxicated and as he was attempting to exit the M5 motorway at Liverpool he ran into the back end of a stationary vehicle causing damage. As he was intoxicated the Applicant asked the driver of the damaged vehicle to agree to pursuing compensation through insurance without involving the police. The other driver called his father who soon after the incident attended the scene, called the police, and this led to the range of charges for which the Applicant was eventually convicted.
The convictions included assaulting an officer in the execution of duty to which the Applicant was made the subject of a Community Corrections Order (CCO) for 12 months commencing on 27 August 2019 and concluding on 26 August 2020. The Applicant was required to report to the Fairfield Community Corrections Service with respect to supervision and oversight as part of the CCO and the Applicant was required to undertake rehabilitation/treatment for drug and alcohol abuse.
The additional offending for which the Applicant was convicted on 27 August 2019 included not giving particulars to another motor vehicle driver for which the Applicant was fined $200 and driving whilst license cancelled, second offence, to which the Applicant was subject to a CCO for 12 months commencing on 27 August 2019 and concluding on 26 August 2020.
Other convictions recorded on 27 August 2019 include driving with a high range prescribed concentration of alcohol, second offence, for which the Applicant was fined $2000, disqualified from driving for 9 months, and required to participate for 48 months in an alcohol interlock program.
On 27 August 2019, the Applicant was also convicted of stalk/intimidate, intense fear of physical harm (personal) for which he was subject to a CCO for 12 months commencing on 27 August 2019 and concluding on 26 August 2020.
On 27 August 2019, the Applicant was also convicted of resist officer in execution of duty to which he was subject to a CCO for 12 months commencing on 27 August 2019, and concluding on 26 August 2020. On the same date the Applicant was convicted of intimidate police officer in execution of duty, to which he was subject to a CCO for 12 months commencing on 27 August 2019 and concluding on 26 August 2020.
The Applicant was also convicted of common assault and subject to a CCO for 12 months commencing on 27 August 2019 and concluding on 26 August 2020. The Applicant was also convicted of stalk/intimidate intend physical harm (personal) for which he was subject to a CCO for 12 months commencing on 27 August 2019 and concluding on 26 August 2020. On the same day, the Applicant was convicted of refusal/fail to submit to breath test for which he was fined $400.
The next offending occurred in 2021 when the Applicant was convicted in the Fairfield Local Court on 25 May 2021 with contravene prohibition/restriction in AVO (domestic) to which he was subject to a CCO for 12 months commencing on 25 May 2021, and concluding on 25 May 2022, to be supervised by Community Corrections in Fairfield to address drug and alcohol and domestic violence issues. The Applicant was also subject to electronic monitoring for 3 months commencing on 25 May 2021, and concluding on 24 August 2021. A curfew was imposed for 3 months between the hours of 10pm and 4pm commencing on 25 May 2021 and concluding on 24 August 2021. The apprehended violence order did not require the Applicant to live apart from his partner, it did however require him to not harass, intimidate, threaten or harm his partner and not to consume alcohol.
The Applicant entered a plea of guilty to the offending and did not seek advice or representation with respect to the offending.
The Applicant was convicted in the Fairfield Local Court on 25 May 2021 with intentionally choke a person without consent (DV), along with common assault (DV), for which the Applicant was subject to a term of imprisonment for 12 months commencing on 25 May 2021 and concluding on 24 May 2022. The term of imprisonment was to be served by way of an intensive corrections order. Once again with directions that the Applicant engage with Community Corrections in Fairfield to address domestic violence and drug and alcohol related offending.
The evidence indicates that there was a 2 year gap in offending between 2021 and 2023.
On 26 July 2023, the Applicant was convicted in the Hornsby Local Court of stating an incorrect name or address to an authorised police officer for which he was fined $300. On the same day, the Applicant was convicted of hinder or resist police officer in the execution of duty to which he was fined $450. On the same day, the Applicant was convicted of fail to give ticket for inspection at a train station for which he was fined $100.
On 5 September 2023, the Applicant was convicted in the Liverpool Local Court of assault occasioning actual bodily harm, to which he was subject to a CCO, for 15 months commencing on 5 September 2023 and concluding on 4 December 2024. The conviction required the oversight of the Community Corrections Service and the requirement that the Applicant engage in an alcohol rehabilitation program including that he must abstain from alcohol for a period of 15 months, commencing on 5 September 2023, and concluding on 4 December 2024.
Further offences dealt with in the Liverpool Local Court on 5 September 2023 included stalk/intimidate and intend fear of physical harm (personal) and affray. For these offences, the Applicant was subjected to a CCO for 15 months commencing on 5 September 2023 and concluding on 4 December 2024 under supervision, with directions that he must undergo an alcohol rehabilitation program. On 5 September 2023, the Magistrate also dealt with a failure by the Applicant to appear in accordance with a bail acknowledgement and he was made the subject of a s.10A conviction with no other penalty recorded.
On 15 September 2023 the Applicant was convicted in the Armidale Local Court of the offending that ultimately led to the cancellation of his Subclass 444 visa namely reckless grievous bodily harm, for which he was imprisoned for 12 months commencing on 14 September 2023, and concluding on 13 September 2024, with a non-parole period of 7 months commencing on 14 September 2023 and concluding on 13 April 2024 with a reduction in the length of sentence due to the existence of ‘special circumstances’ which are referred to in the sentencing comments by Magistrate Richardson. On the same day, the Applicant was convicted of driving a motor vehicle during a disqualification period, second offence, for which he was imprisoned for 3 months commencing on 14 September 2023 and concluding on 13 December 2023 with a 12-month disqualification from driving.
On 4 June 2024, the Applicant was convicted in the Newtown Local Court of common assault for which he was subject to a CCO for 12 months commencing on 4 June 2024 and concluding on 3 June 2025. The order was to be overseen by Community Corrections Services in Liverpool.
With respect to the most serious offending which resulted in the imposition of a 12-month term of imprisonment the evidence indicates that the Applicant was working in Armidale undertaking scaffolding on the St Mary’s Catholic church. There are two components to the offending. The Applicant drove a motor vehicle whilst disqualified from driving and he assaulted the victim causing grievous bodily harm. The evidence indicates that the Applicant and the victim had both been drinking and the victim had allegedly racially abused a colleague of the Applicant who was Aboriginal. As a consequence, the Applicant punched the victim with the victim falling back onto the footpath hitting is head on the concrete losing consciousness and suffering a fractured skull and a consequential brain bleed. The victim had to be flown to the John Hunter Hospital in Newcastle for treatment and after treatment was reported to be in a stable condition.
As a consequence of the Applicant’s offending history and subsequent convictions, on 4 December 2023 his Class TY Subclass 444 Special Category (Temporary) visa was cancelled under s.501(3A) of the Migration Act, and the Applicant was invited to make submissions with respect to the revocation of the cancellation. The Applicant did not engage a representative for this purpose. The Applicant provided representations to the Ministers delegate. Those representations were duly considered by the delegate.
On 29 October 2024, a delegate of the Minister decided under s.501CA(4) of the Migration Act , not to revoke the original decision. It is this decision of the delegate that is the subject of merits review before the Administrative Review Tribunal.
APPLICANTS EVIDENCE
The Applicant was self-represented. At a pre-hearing directions hearing, the Tribunal had suggested that the Applicant could attempt to obtain representation and that the Associate assisting would be able to provide details with respect to accessing Legal Aid New South Wales and community legal centres to ascertain whether they could assist.
In the absence of the provision of a statement of facts, issues and contentions from the Applicant the Tribunal has had regard to materials and other documents submitted by the Applicant to the Department with respect to consideration of the revocation of his visa which included a number of references from his mother, a sibling, his ex-partner and co-workers attesting to his character.
The Applicant completed a personal circumstances form provided to him by the Department with respect to his response to the notice of visa cancellation.
This form was completed by the Applicant on 21 December 2023. The Applicant in the form advised that he was a citizen of New Zealand and the Applicant advised that his parents were both citizens of New Zealand. The Applicant advised that neither of his parents became Australian citizens after they arrived in Australia. The Applicant stated that he and his family members were all given permanent residence in December 1999. The Applicant advised that he had a sister and two brothers who were all resident in Australia. The Applicant advised that he had three children, a son born in 2014, who was residing in New Zealand, and a son born in 2019 and a daughter born in 2021 who hold Australian nationality and reside with their Australian citizen mother in Australia.
The Applicant was asked in the personal particulars form to describe the relationship that he has with each of his minor children including how often he contacts or sees the children and what role he plays in their life. The Applicant stated “for the last year I haven’t seen my kids which has sent me into a downward spiral. Upon splitting up with my ex the relationship with my kids has been torn apart. Prior we had an amazing one. My son is a spitting image of me”.
The Applicant stated that he had eight nephews and two nieces who are resident in Australia with whom he had prior to his incarceration, maintained close relationships with.
With respect to the impact on other minor children in the Applicant’s life such as his nieces and nephews if his visa cancellation was not revoked, the Applicant stated that “not having me around is making my nephews pretty upset. My mother reckons they keep asking for me. My nephew H confides in me and usually calls me once a week to talk or ask me to play with him”.
The Applicant advised in the personal particulars form at question 9 that his mother, two brothers, his sister, and seven cousins were all resident in Australia and were close to him and there were additional nieces and nephews and cousins in Australia as well. In response to the question asking the Applicant to describe any current impact on family members or the likely impact on them in the event of a negative s. 501 outcome the Applicant stated “my family is currently going through financial hardship due to everyone pooling money to help my cousin’s family while she fights stage 4 cancer. Me not being around is not only hard financially but mentally draining as well during this time”.
At question 10 of the personal particulars form the Applicant was asked what factors he believed helped explain his offending that he wanted the decision-maker to take in to account. The Applicant stated “my father’s death. My ex taking my kids and now my cousin (who was raised as my sister) got stage 4 cancer. All of the above over the years has sent me into an uncontrollable downward spiral where I was drowning my emotions with alcohol which in turn, turned violent. In jail I have had time to really reflect on myself and think things through”.
The Applicant at question 10 of the personal particulars form when asked what he believed would be the risk of him offending in the future and providing supporting reasons with respect to his answer, he stated that alcohol abuse was the reason for his antisocial behaviour. The Applicant stated that being incarcerated had given him greater mental clarity and that he needs to think before he acts. The Applicant stated that he also needs to figure out how he can see his children going forward.
With respect to the strength, nature, and duration of ties to Australia the Applicant stated that he completed year 10 at Peakhurst High School. The Applicant stated that he had been able to maintain consistent work as a scaffolder in Australia for a period of 15 years and that he had never needed to rely on Centrelink except throughout the pandemic when worksites were closed.
When asked at question 13 of the personal particulars form what he feared about being returned to New Zealand, the Applicant stated he had concerns about homelessness and no job security. The Applicant also identified a lack of family support in New Zealand as his entire family is in Australia.

When asked at question 14 of the personal particulars form to outline or provide any other information that he wished the decision-maker to consider when making the decision in relation to his case the Applicant stated “my kids are here, and I know if my visa is cancelled there is a high chance, I will never see them again. My family is here. My mother, brothers and sister and cousins all live here. We have been here for 24 years. Since 1999 I have been here and to leave I wouldn’t know where to start without the family and community support. In jail, I have gained a lot of mental clarity and pro-actively found many ways to deal with my emotional and mental struggles. Upon release I will have full-time employment and joining in alcohol abuse related programs to keep actively trying to become a better man”.
The Applicant’s former partner and the mother of his two children Ms F provided a statement in support of the Applicant dated 22 May 2024. Ms F notes that she and the Applicant have a five-year-old son and a three-year-old daughter. She notes her relationship with the Applicant began in 2017 and she describes the Applicant as being protective of his loved ones and a loyal and hard worker and she describes him as being resilient, intelligent, kind generous and loving “until alcohol becomes apparent”.
Ms F notes that the Applicant has a number of underlying issues that he needs to urgently address. The Applicant struggled with the sudden loss of his father many years ago and with the loss of other important people in his life who had a significant impact upon his life.
The statement notes that:
“Despite all that happened Tai has only ever acted out of character when under the influence of alcohol. There is no excuse for his violent outburst, but I believe this overwhelming turn of events has incarcerated, a person compelled to hit rock bottom to make an undeniable breakthrough. Unfortunately, with great measures it was Tai’s wake-up call he was in dire need of. And now with his journey of sobriety Tai has expressed his deepest remorse & utter shame of those he has hurt along the way. With careful consideration my reconciliation with Tai has been a pivotal moment for him. There are many things Tai is prepared to work on yet seeing hope & clarity within himself is a remarkable thing to witness. Tai now has a new found perspective in which he shed light on a brighter future he is more than willing to strive for. Tai has also expressed his desire to fulfil all necessary requirements during his time in & especially once he is released. To continue in order to better himself as a person as a son, brother, uncle friend & most importantly as a father.
…Tai will also immensely help relieve me of the financial pressures & our children will not ever have to go without medical or educational essentials & other important miscellaneous needs. Knowing wholeheartedly Tai is a good person, he has taken full responsibility of his actions & understands the severity of his circumstances. Spending most of his time reflecting on his past. Tai has prioritized what is most important to him. First & foremost to be the best version of himself in order to provide & care for his family. To have a sense of community, his efforts in doing so will not be left astray & as a collective most of Tai’s family & support network is based here in Sydney. We are more than happy to help & support Tai with the opportunity of a better life. I humbly request for you to carefully assess Tai Kingi’s distinctive predicament. Considering contributions made & respectfully provide Tai Kingi with a second chance. I firmly believe that a compassionate consideration of Tai Kingi’s case is warranted. Granting relief allowing Tai Kingi to continue contributing positively to our community & potential rehabilitation & future success”.
The Applicant’s mother Mrs Adah Kingi Haimona provided a statement of support dated 24 May 2024, which the Tribunal has duly considered.
The Applicant’s mother states that the Applicant was the eldest of four siblings and that he was raised in a loving home and that as a child he was always well-behaved and protective of his siblings. The statement notes that the Applicant was close with his grandfather, Jim Kingi, and that his grandfather’s death when the Applicant was 7 had a profound impact on him. The Applicant’s mother notes that the Applicant’s father passed away suddenly in 2015 from a heart attack which also impacted the Applicant and that around the same time the Applicant lost an aunt, Olive, with whom he was close. The statement notes that the Applicant met his partner in 2017 and that there are two children of the relationship. The Applicant’s mother notes that the Applicant fell into a pattern of indulging himself with alcohol socially which became problematic and led to the breakdown of his relationship with the mother of his children. The Applicant’s mother notes that since the Applicant had been incarcerated, he had engaged in a number of self-help programs dealing with anger management, drugs and alcohol, and domestic violence. The Applicant’s mother notes that her son was deeply remorseful for his prior conduct and was determined to turn his life around.
The Tribunal has also had regard to a reference provided by the Applicant’s brother Tuti Haimona which is undated and is located at page 104 of the G documents. The statement notes that the Applicant had lived in Australia for a significant portion of his life and that he had built meaningful relationships and connections. The Applicant’s brother notes that the Applicant is genuinely remorseful for his past actions and has been working towards rehabilitation and is committed to making positive changes in his life going forward. The Applicant’s brother believes that deporting the Applicant to New Zealand would not only isolate him but would hinder the Applicant’s chances of making positive changes in his life going forward.
RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
The respondent’s representative Minter Ellison lawyers provided a submission to the Tribunal dated 20 December 2024.
The submission refers to the Applicant’s history in Australia and to his offending history. The submission refers to the relevant law with respect to the cancellation of the Applicant’s Subclass 444 visa on character grounds and makes reference to the relevant considerations with respect to Ministerial Direction 110.
With respect to protection of the Australian community the submission notes that the safety of the Australian community is the highest priority of the Australian government.
With respect to the Applicant’s offending history the Minister’s contention is that it has been serious in nature. The submission notes that on 4 June 2024 the Applicant was convicted of common assault and sentenced to a Community Corrections Order for 12 months. The police facts sheet with respect to this offending indicates that the Applicant attended the Marrickville Liquor Centre with the co-accused to purchase alcohol. The Applicant assaulted another customer in the store and when a witness attempted to call the police the Applicant re-entered the store and assaulted the victim again.
The submission notes that on 15 September 2023, the Applicant was convicted of reckless grievous bodily harm and drive a motor vehicle during a period of disqualification. The submission notes that with respect to the grievous bodily harm offence that the victim was knocked unconscious by the Applicant and suffered a fractured skull and a brain bleed and was airlifted to hospital. The submission notes that on 5 September 2023, the Applicant was convicted of assault occasioning actual bodily harm when the Applicant punched the victim of that offending causing the victim’s bottom lip to swell and bleed. The submission notes that on 25 May 2021, the Applicant was convicted of intentionally choking a person without consent in a domestic violence setting.
The submission makes reference to the Applicant’s offending in August 2019 which included failing to submit to a breath test, stalking and intimidating with an intention of committing physical harm, common assault, intimidating a police officer, driving with a high range of the prescribed concentration of alcohol, driving whilst license cancelled and not giving particulars to another driver. With respect to the latter offence the submission notes that the Applicant was driving whilst drunk and hit the vehicle in front of him. During the incident, the Applicant stated to the victim that he was drunk and that he was not going to pay for the damage and that the victim should claim through his insurance and during the interaction the Applicant became aggressive. When the victim attempted to call the police, the Applicant became extremely abusive and threatening and when the police attended the scene the Applicant was threatening and abusive towards the police.
The Minister submitted that the grievous bodily harm offence, the domestic violence offence, the actual bodily harm offence, and other assault offences should be collectively considered to be very serious in nature. The submission notes that with respect to this offending “that the Applicants repeated, and increasingly serious offending, demonstrates his inability to distinguish right from wrong and his inability to effectively treat his anger and alcohol consumption and his persistent resort to violence. The submission notes that this is despite the fact that he has been afforded a number of supervisory Community Corrections Orders in the Australian community through the imposition of flexible and targeted sentencing options. These are aimed at reducing future offending but in the case of the Applicant have not been successful in this respect. The Minister contends that “the Applicant’s offending is of a kind which may have catastrophic consequences for his victims, as almost occurred in relation to the GBH offence. In light of the objective seriousness of the Applicants repeated offending, the Minister contends that the nature and seriousness of the Applicant’s criminal offending weighs heavily against revocation.”
With respect to the risk to the Australian community the Minister’s representative notes that due to the Applicant’s repeat offending that there is a heightened risk of the Applicant reoffending in the future and that the Applicants reoffending has the potential to cause serious psychological, physical, and financial harm to members of the Australian community. The submission notes that this was demonstrated with respect to the Applicant’s assault convictions in 2023 and 2024. The submission notes that with respect to the risk of the Applicant reoffending that the Applicant had identified that his alcohol use, along with his mental clarity and access to his children will impact his risk of reoffending (see G documents at this G15 page 94). The submission notes that the Minister acknowledges the fact that the Applicant had engaged in a number of programs to address drug and alcohol abuse, and had attended the SMART recovery program to address his alcohol issues but despite this contends that the Applicant remains an unacceptable risk to the Australian community for a number of reasons.
The Minister contends that there is limited evidence that the courses that the Applicant has engaged in demonstrate that they will lead to a decrease in the Applicant’s risk of reoffending. The Minister notes that protective features in the Applicant’s life including his two dependent children and his employment history have not deterred him from engaging in serious offending conduct in the past. The submission notes that the Applicant has been the subject of multiple Community Corrections Orders and an Intensive Correction Order implemented by the judiciary in an attempt to deter the Applicant from further offending. The submission notes that “the Minister submits that the Applicants disregard and lack of compliance with previous CCO’s tends to indicate that the Applicant is at a high risk of reoffending given the absence of any intensive, individualised and ongoing treatment aimed at addressing his alcohol abuse and anger issues”.
The Minister submits that there is no evidence that the Applicant upon release into the Australian community has taken active steps to find a suitable alcohol rehabilitation program. The Applicant has not expressed remorse for his offending and the impact upon the victims of his offending. The submission notes that with respect to the Applicant’s domestic violence offending that the Applicant apportioned some blame on his ex-partner for the offending and that this demonstrated a lack of insight into the offending conduct by the Applicant.
The Minister makes reference to a sentencing assessment report dated from 2023 which indicates that the Applicant acknowledged being under the influence of alcohol at the time of the offence but did not perceive his alcohol use to be problematic (see S12,47). The Minister also submits that the Applicant’s rehabilitation efforts have not been tested in the community as the Applicant has been incarcerated or in immigration detention since September 2023.
The Minister contends that with respect to the ongoing risk and potential for similar offending to cause harm that this primary consideration weighs heavily in favour of non-revocation of the visa cancellation.
With respect to family violence the Minister’s representative noted that the domestic violence offences that led to the Applicant’s convictions on 25 May 2021 were committed against his intimate partner and would have caused her to be fearful. The Minister contends that the domestic violence offending was serious as the Applicant attempted to apportion blame in relation to the domestic violence offence on the victim which demonstrated a lack of insight into the offending and that the Applicant committed the offence in front of his minor children. The Minister contends that despite the fact that the Applicant had completed one course relating to domestic and family violence that this was not sufficient rehabilitation to address the severity of the Applicant’s offending and that this primary consideration weighed heavily against revoking the mandatory cancellation of the Applicant’s visa.
With respect to the nature and duration of the Applicant’s ties to Australia the submission notes that this consideration weighs in the Applicant’s favour having regard to the fact that all of the Applicant’s immediate family reside in Australia and have permanent residence in Australia including his mother, two brothers, and sister. The submission notes that the Applicant also has a number of uncles and aunts and nieces and nephews and cousins living in Australia. Reference is made to the character references provided by the Applicant’s ex-partner, mother and brother who all claim that they will be adversely impacted if the Applicant is removed from Australia. The Minister notes that the Applicant has had long-term employment in Australia working as a scaffolder since 2013 and has provided character references from two employers including one employer who is willing to re-employ the Applicant on a part-time basis if he is allowed to stay in Australia. The Minister contends that this consideration weighs slightly in favour of revoking the cancellation of the Applicant’s visa.
With respect to the best interests of minor children, the submission notes that the Applicant had not seen his children in over one year since the breakdown of his relationship with their mother. The submission notes that the Applicant had claimed in evidence to the Department that prior to the breakdown of his relationship with his ex-partner he had a good relationship with his children. The submission notes that the evidence indicates that since the Applicant has been in immigration detention that he had telephone contact with his children. Reference was made to the statement provided by the Applicant’s ex-partner dated 22 May 2024 which indicates the emotional toll the Applicant’s removal would have upon his children and that the Applicant’s removal will cause financial pressure on the family unit. Despite these factors the Minister notes that it is unclear whether the Applicant will play a positive role in the lives of his children going forward given his history of violent offending, a history of domestic violence and unresolved issues with alcohol consumption. Overall, the Minister submits that with respect to this primary consideration that it does weigh in favour of revocation, but it does not outweigh the countervailing primary considerations.
With respect to the expectations of the Australian community the submission notes that the Australian community would expect that the Australian government should cancel a person’s visa if there are serious character concerns pertaining to that person. The Minister contends that the Applicant through his offending has put members of the Australian community at risk. The Applicant has been given numerous opportunities and resources through the court system and the imposition of a number of community corrections orders involving community supervision and alcohol rehabilitation. The Minister notes that despite the imposition of these orders the Applicant has continued to offend. The Minister submits that this consideration should be given significant weight against revocation of the cancellation of the Applicant’s visa.
With respect to other considerations the respondent submitted the following. That the Applicant has not made any claims for protection and hence Australia’s non-refoulement obligations are not enlivened. The Minister accepts that should the Tribunal affirm the decision under review the Applicant will remain an unlawful non-citizen and will be liable for removal from Australia as soon as is reasonably practicable and may continue to be subject to a period of time in immigration detention. The Minister further accepts that the Applicant will be subject to indefinite exclusion from Australia by operation of the Special Return Criteria in cl 5001(c) of Schedule 5 to the Migration Regulations (1994) (Cth).
The Minister accepts that the Tribunal is bound to consider these legal consequences but contends that the Applicant is not the subject of a protection finding and that the Applicant’s removal and indefinite exclusion from Australia is an intended purpose of the statutory regime and the underlying considerations in Direction 110.
With respect to the extent of any impediments if the Applicant was removed from Australia the submission notes that the Minister submits that the Applicant is aged 33 and has no reported medical conditions. There is no evidence to indicate that the quality of medical care available to the Applicant in New Zealand would be not of the same standard available in Australia. The Minister contends that there are no significant language or cultural barriers for the Applicant to overcome in New Zealand. The submission notes that the Applicant would have the support of his grandmother who lives in New Zealand and would be able to build a relationship with his son D who the Minister understands continues to reside in New Zealand.
With respect to the impact on Australian business interests the Minister contends that there is no evidence that the cancellation of the Applicant’s visa will compromise Australia’s business interests and that overall other considerations should be given neutral weight with respect to the cancellation of the Applicant’s visa.
REVIEW HEARING
The Tribunal conducted a review hearing on 7 January 2025. The Applicant attended the hearing and was not represented. The Applicant’s sister attended the review hearing along with her partner to act as support persons for the Applicant. Ms Jackson from Minter Ellison appeared on behalf of the Minister.
At the very outset of the hearing the Tribunal commenced its hearing preamble. The Applicant interjected to state that he had reviewed his situation, he had also looked at the previous Ministerial Direction 99 and the current Ministerial Direction 110 and he felt that his chances of having the cancellation decision revoked with respect to Direction 110 were negligible and that he was considering removal from Australia to New Zealand as he did not wish to waste the Tribunals time.

The Tribunal noted that it was an independent review body. The Tribunal noted that its role was to consider the written and oral evidence before it and to determine whether there was another reason available to it to revoke the cancellation decision that had been made by the delegate.
The Tribunal expressed concern that with respect to the Applicant’s stated intention that he was unrepresented. The Tribunal noted that there were profound consequences for the Applicant if he sought to be removed from Australia and if he wished to withdraw his merits review application.
The Tribunal suggested that the review hearing should be stood down for 30 minutes to allow the Applicant to confer with his sister and brother-in-law with respect to his decision and that Ms Jackson could provide the Applicant with information about the respective impact of his decision to be removed and with respect to the withdrawal of his merits review application. The Tribunal advised the Applicant that upon the resumption of the hearing the Applicant could advise the Tribunal as to whether he wished to withdraw the application for review or whether he wished to pursue a review hearing.
Upon resumption of the hearing the Applicant advised that he had decided to pursue with the review hearing.
At the resumption of the review hearing the Tribunal went into detail about the respective issues in the review and to outline the prospective outcomes of the review. The Tribunal reiterated that it was an independent review body vested with responsibility to review the written and oral evidence before it and to apply the relevant law to make a correct and preferable decision in the review before it. The Tribunal also provided detail about how the proceedings would be conducted.
The Applicant was given an opportunity to make any opening statement to the Tribunal. It was apparent to the Tribunal that the Applicant not having a representative, was anxious about addressing the Tribunal. The Tribunal suggested to the respondent’s representative the Tribunal could take the Applicant through evidence with respect to his offending history. Ms Jackson stated that there was no objection to this course of action.
The Applicant advised that he was born in New Zealand on 31 August 1991 that he was 33 years old. The Applicant advised the Tribunal that his track record with respect to offending had been bad. The Applicant confirmed that he came to Australia at the age of 9. The Applicant advised that his mother was a permanent resident of Australia as was his sister, his two brothers, most of his aunties’ and uncles advising the Tribunal that both his parents came from large families. The Applicant also stated that he had a significant number of nieces and nephews with whom he had maintained close relations. The Applicant advised that his father had passed away from a heart attack and that as the eldest son within his family unit that he had assumed significant responsibilities in terms of providing emotional and financial support to his family.
With respect to his education history the Applicant stated that he completed his primary school studies in Blakehurst in Sydney and initially started high school in Blakehurst but after the family relocated to another suburb completed his high school studies in Peakhurst. The Applicant advised that he completed high school in year 10 when he was approximately 14 turning 15 years old. The Applicant stated that he managed to obtain work upon leaving school initially putting up marquees for a company. He then worked for a service station for a period of time before obtaining a job in mine trade maintenance. The Applicant stated that he worked in these roles until he was 18 at which time he obtained work as a scaffolder, work that he had been able to maintain since that time.
The Tribunal noted that the evidence before it indicated that the Applicant had been the subject of a number of CCO’s. The Applicant confirmed that he had been the subject of three CCO’s. The Applicant stated that he had completed the Life Choices program which he found very beneficial with respect to addressing alcohol use and anger management. The Applicant noted that the CCO’s required that he refrain from drinking, and that he engage with a psychologist with respect to his drinking and anger management issues. The Applicant stated that he had also been required as part of the conditions of one of his CCO’s to wear a monitoring bracelet to ensure he kept to a curfew.
The Tribunal asked the Applicant about his drinking history. The Applicant stated that he started drinking at the age of 16. The Applicant stated that he was controlled during the week and did not drink during the working week but on Friday afternoons he would drink with his workmates and described himself as a binge drinker. The Applicant stated that on any work site involving scaffolding that the culture was that 90% of workers would go to the pub after work and particularly on Fridays.
The Applicant stated that his partner had fully intended to come along to support him at the hearing today, however, there were two reasons that she had not attended. Firstly, Mr Kingi prior to his attendance at the Tribunal had decided that he wished to withdraw the review and be returned to New Zealand and that he had only decided on the day of the hearing to proceed with the review. Secondly, his partner had intended to attend to support him, however, their 3 year old daughter was ill, and his partner was not able to attend as she was not able to obtain care at short notice. The Tribunal noted that it would be having regard to his partners statement that had been provided to support the revocation of his cancelled visa.
The Applicant advised the Tribunal that he had commenced the SMART recovery program. He advised that there were 8 sessions in the program. The Applicant stated that he attended 4 of these sessions but found that the course did not offer him any meaningful solutions so he ceased attending. The Applicant advised that he had seen a psychologist since he had been in immigration detention. The Applicant stated that he was convicted to a 12 month jail sentence for the assault occasioning grievous bodily harm and that the Magistrate advised that a finding of special circumstances would be applied in the circumstances of his case and that he would be in prison for a period of 7 months and would be released from prison on 13 April 2024.
The Applicant stated that after his release from prison he was transferred to the Villawood Immigration Detention Centre where he has been since 13 April 2024. The Applicant stated that during the seven months that he was in prison that he was not subject to drug testing or alcohol testing. The Applicant stated that during the time that he was imprisoned it became apparent that access to drugs and alcohol was available from within the prison system. However, the Applicant stated that he had never taken drugs and was not interested in consuming alcohol and abstained from alcohol during his prison term. The Applicant advised that since he had been detained in immigration detention that he had been tested on 3 occasions for drugs and alcohol and had not recorded a positive result. The Applicant advised the Tribunal that he had not engaged in alcohol or drug use since he had been in immigration detention.
The Applicant advised the Tribunal that his father passed away suddenly on 27 June 2015 from a heart attack. The Applicant stated that as the eldest son in his family he had to step up in terms of his responsibility to his remaining family members. The Applicant stated that the death of his father had a profound and adverse impact on him. The Applicant stated that his older sister passed away from breast cancer in January 2024 at the age of 37 and was the mother of six dependent children and her plight was covered in a story on the program A Current Affair.
The Tribunal noted that with respect to the Applicant’s offending history that there had been no offending between 2010 and 2016 and asked the Applicant why this was the case. The Applicant stated that during this period he was engaged heavily in weight training and he had joined the gym, that he was working hard and that he did not drink alcohol between 2010 and 2016.
The Tribunal noted that there was no evidence of any offending between 2016 and 2019. The Applicant stated that this was a stable period in his life as he had commenced a relationship with the mother of his two children and his current partner in 2017. The Applicant confirmed that his son was born in 2019 and that his daughter was born in 2021 and that he had a close relationship with both of his children.
The Applicant stated that there had been a resumption in the relationship with his partner since the end of 2023 and he described the relationship as a good one. The Applicant advised that his partner brings their children around to see him every second week at the Villawood Detention Centre. The Applicant stated that he talks to his children on the telephone every day. The Applicant stated that he communicates with his children via video on his mobile phone and that he has re-established a strong relationship with his children.
The Tribunal made reference to the Applicant’s offending that led to assault charges being laid on 27 August 2019. The Applicant stated that he had been drinking and was driving a motor vehicle. The Applicant stated that he hit a stationary car from behind. The Applicant stated that he got out of his car and spoke to the driver of the other car and asked them whether they could work out any damage issues through their respective insurance companies. The Applicant stated that the owner of the other vehicle called his father who attended the scene and called the police. The Applicant stated that this escalated his behaviour as he knew that he would be breath tested and would be over the legal limit further to this he knew that he was subject to a CCO at the time. The Applicant stated that the police attended. The Applicant acknowledged his aggressive behaviour towards the victim and towards the police.
The Applicant stated that when he attended court with respect to this offending behaviour that he pleaded guilty immediately and that he wore the consequences of his actions. The Applicant confirmed that he had been verbally aggressive towards the driver of the other vehicle and to the attending police.
The Tribunal noted that when a person is convicted in the Local Court of an offence that the Magistrate will more often than not give the defendant a stern talking to with respect to their criminal offending. The Applicant stated that he recalled that a Magistrate in 2021 had talked to him about his ongoing alcohol abuse and the need for him to address this abuse going forward.
The Tribunal made reference to the Applicant’s offending with respect to a domestic violence issue that occurred with his partner in 2021 which led to an apprehended violence order being put in place by the Fairfield Local Court on 25 May 2021. The Tribunal asked the Applicant about the circumstances with respect to this offending. The Applicant stated that he came home drunk after being out with his mates after work. The Applicant advised that he was lying on a bed with his young son and that his partner became upset about him returning to the family home inebriated and this was exacerbated by the fact that an amount of $1000 had been debited from the couple’s joint bank account. The Applicant stated that his partner asked him to leave the house and that she continually hit the Applicant. The Applicant stated that his partner told him that he should not come home drunk. The Applicant stated that he was remorseful for retaliating against his wife lashing out at him and that he had attempted to pacify her. The Applicant stated that he left the family home and told his partner that if she would not let him see his children that he would pursue a custody application.
The Applicant gave evidence that whilst he was overseen by Fairfield Community Corrections that he engaged in the Life Choices course which ran for 10 weeks for one afternoon a week. The Applicant stated that he found this course to be very beneficial and worthwhile to him. The Applicant stated that the course gave advice around managing your ‘demons’ and managing your anger.
The Tribunal made reference to offending of the Applicant for which he was sentenced in the Hornsby Local Court on 26 July 2023. The Applicant advised the Tribunal that he had been drinking and had fallen asleep on a train and ended up at Hornsby railway station. The Applicant stated that he sat on the platform at Hornsby Station waiting to catch a train to his residence in Edmondson Park. The Applicant stated that he was approached while he was on the station and gave a fake name because he was on a CCO at the time.
The Tribunal made reference to an offending incident in September 2023, when the Applicant was convicted in the Liverpool Local Court of assault occasioning actual bodily harm to which he was made the subject of a CCO for 15 months commencing on 5 September 2023 and concluding on 4 December 2024. The Applicant stated that the incident happened at Liverpool railway station. The Applicant stated that he had been drinking with some mates at the Collingwood Hotel and that they were assaulted by a group of men in the hotel. The Applicant stated that rather than reporting the assault to the police that he and his mates took matters into their own hands when they came across the perpetrators who assaulted them and the Applicant stated that as a consequence, he was charged with assault occasioning actual bodily harm, namely bruising. The Applicant stated that he and his mates should have reported the assault on them to the police rather than take matters into their own hands.
The Tribunal made reference to the sentencing in September 2023 when the Applicant was convicted in the Armadale Local Court for causing reckless grievous bodily harm and for driving a motor vehicle whilst disqualified. The Applicant stated that he was working in Armadale at the time erecting scaffolding at St Mary’s Catholic Church. The Applicant stated that alcohol was a factor in this offending. The Applicant stated that a degree of provocation was involved in the offending, and that he was remorseful for the offending. The Applicant stated that he was given a 12 month prison sentence with respect to this offending and that the Magistrate advised that he would only serve 7 months before he was released due to a range of discounts being applied to the sentencing.
The Tribunal enquired of the Applicant what access he had to courses or a psychologist whilst in prison or in detention with respect to addressing alcohol abuse and anger management issues. The Applicant stated that there was no courses or access to a psychologist whilst he was in prison. The Applicant stated that he had seen a psychologist on six occasions whilst in immigration detention for one hour to 90 minutes at each session. The Applicant stated that his interactions with a psychologist had been beneficial. The Applicant stated that he had attended one alcoholics anonymous session but did not find it beneficial. The Applicant stated that whilst he was in prison, he was detained in Kempsey jail and Tamworth jail and that it was prohibitively expensive for his partner and children to visit him due to the location of those prisons from the Sydney metropolitan area. The Applicant stated that since he had been in immigration detention that his partner and children visit him regularly and that he calls his children every day by video calls and that he has a good relationship with both of his children.
The Tribunal noted again for the benefit of the Applicant the prospective outcomes of the review hearing. The Tribunal invited the Applicant to make any closing submissions.
The Applicant advised that he had found the Life Choices program to be really beneficial and that it had given him a number of useful strategies to manage his anger and his alcohol use. The Applicant advised that it taught him to focus on underlying issues, how to handle challenging situations, to explore hidden factors that may lead to certain behaviour, to reflect on your core beliefs and core values. The Applicant stated that the interactions that he had with a psychologist in detention had also been beneficial.
The Applicant stated that as the eldest son in his family that he absorbed a range of responsibilities with respect to his family. The Applicant stated that after the death of his father in 2015 that his responsibilities increased. The Applicant stated that he was inherently protective of his family. The Applicant stated that he found the Equips program was very good and that it taught him a number of strategies including mindfulness as a tool to reduce anger and minimise stress. The Applicant stated that he also learnt scuba-diving breathing techniques as a mechanism for deleting stress from his life.
The Applicant re-stated that he had only attended 4 sessions of the SMART Recovery program and that he discontinued with it because it did not offer him any useful strategies to deal with his underlying issues.
The Applicant stated that he had interacted with a psychologist on one occasion in the community and had also attended Alcoholics Anonymous on one occasion. The Applicant stated that he did not find AA useful due to the types of addicts that attended including those that used a range of illicit drugs. The Applicant reiterated that he had seen a psychologist on six occasions since he had been in immigration detention and that these sessions have been very beneficial to him. The Applicant stated that while he was being supervised by Fairfield Community Corrections that they suggested he attend the Smart Recovery program. The Applicant stated that for a large period of time that he was under the supervision of Fairfield Community Corrections that this supervision coincided with the global pandemic and that as a consequence there was no capacity for face to face contact and all interaction was over the phone.
The Applicant stated that he had identified triggers with respect to his alcohol use. The Applicant stated that these triggers included stress, the relative environment that he was in, work-related stress, and financial issues. The Applicant identified that his use of excessive alcohol occurred when he was in the company of antisocial peers. The Applicant stated that he had no intention of interacting with any negative influences in his life going forward and that he was committed to his immediate and extended family members. The Applicant stated that he had been profoundly impacted by the death of his father in 2015, which was sudden, and that he was required to step up within his family unit as the eldest son.
With respect to how he would mitigate excessive alcohol use in the future the Applicant stated that he needs to completely abstain from alcohol. He needs to prove that he is able to live in the community and not consume alcohol. The Applicant stated again that alcohol had been available whilst in prison and in immigration detention, however he had abstained from it. The Applicant stated that he needs to utilise counselling and other support mechanisms available to him in the community to assist with his rehabilitation going forward. The Applicant stated that he could not unequivocally tell the Tribunal that he was not going to drink in the future because this remains untested in the community, however the Applicant stated that he will be doing his best to remove himself from negative influences and to abstain from alcohol use going forward and that the long period of abstinence due to is incarceration had been helpful in this respect.
The Applicant stated that he intends to take proactive steps to create an alcohol relapse prevention plan. He advised that he is now able to identify risk factors that drive him to drink. The Applicant stated that the psychologist with whom he had engaged in immigration detention had advised him of a free rehabilitation program in the community that he intends to access. The Applicant stated that for the past two years of his incarceration that he had been training physically and that he wants to be healthy going forward. The Applicant stated that he wants to be in a good space and that he wants to remain in a good space and free from alcohol for the benefit of his family.

The Tribunal asked the Applicant to address how the Tribunal could be satisfied that the Applicant would not reoffend in the future. The Applicant stated that he had two young children that he loved and cared for and that he wanted to provide emotional and financial support to them. The Applicant stated that he had resumed a relationship with his partner. The Applicant stated that he had never been to jail prior to his incarceration in September 2023. The Applicant stated that his experience in jail had been sobering and had a profound effect upon him. The Applicant stated that he never knew that as a permanent resident that he could be deported with respect to his criminal offending. The Applicant stated that the future risk of deportation would weigh heavily against him engaging in reoffending. The Applicant stated that he had been in Australia since the age of nine and had been educated in Australia and had worked in Australia since he left school in year 10.
The Tribunal asked the Applicant whether he believed he still had issues with alcohol and anger. The Applicant stated that these issues would always be with him. The Applicant stated that 90% of scaffolders drink and go to the pub and suggested that if the Tribunal was to go to a scaffolding worksite that it could observe this firsthand. The Applicant stated that he wanted to attend free rehabilitation in the community and that he wanted to continue to engage with a psychologist as he had found this beneficial. The Applicant once again reiterated that the sessions that he had with a psychologist in detention had been extremely beneficial. The Applicant stated that he had not actively looked at outside programs because he had come to a decision prior to the review hearing that there would be no chance of success before the ART and that he faced imminent deportation.
The Tribunal put to the Applicant if it was to consider the revocation of the cancellation decision what evidence he wished to provide with respect to the Tribunal finding that he is serious about avoiding a relapse into offending and alcohol abuse. The Applicant stated that the Tribunal could direct that he should wear an ankle bracelet for the next 10 years. The Applicant reiterated that he found jail a sobering experience, that the cancellation of his permanent residence had also had a sobering effect. The Applicant stated that he did not know that he could be kicked out of the country that he had been raised and educated in. The Applicant stated that if he is forced to return to New Zealand that he will not be able to see his children.
The Applicant stated that with respect to the strength and nature of his ties to Australia that he has resumed a relationship with his partner. The Applicant advised that his partner is an Australian citizen and that their relationship has been good since November 2023. The Applicant stated that he communicates with his partner by video and through texts and that she has brought his children to visit him in detention on a regular basis since the resumption of their relationship. The Applicant stated that he did not want his partner and his children to come to New Zealand in the event that he is deported as he believed that there was limited opportunity for a good life for them in that country. The Applicant stated that he intends to put his earnings towards his partner and his children. The Applicant stated that in the scaffolding industry he has always earned good money. The Applicant stated that he had put in place a plan for reconnecting with his partner and children if he is released into the community. The Applicant stated that if he is released into the community that he will live with his mother until such time that he is able to establish that he has maintained stability and sobriety. The Applicant stated that after residing with his mother that the plan is that he would live in independent accommodation close by his partner and children so that his partner can observe a significant period of time of him living in the community, abstaining from alcohol and abstaining from offending. The Tribunal asked the Applicant what his partner thought about his offending. The Applicant stated that she suffers with post-traumatic stress disorder as a consequence of his offending. The Applicant stated that his partner had often said to him that “drinking is not the real you”. The Applicant stated that the trauma that his drinking and offending had caused his partner and his family unit was profoundly influential on his decision to create a stable life going forward.
The Applicant stated that his mother, his two brothers and his sister were all permanent residents in Australia. The Applicant stated that all of his uncles and aunts both maternal and paternal were permanent residents in Australia. The Applicant stated that he visited with his relatives on a regular basis and that the family get-together on a regular basis for gatherings at least once a month. The Applicant stated that he and his cousins had been in sports groups together. The Applicant stated that he has played rugby union in the past, however, he also has enjoyed playing Oz tag and touch football. The Applicant stated that going forward he could not return to rugby union because of injured knees but he would be definitely return to touch football and Oz tag. The Applicant stated that his nieces and nephews enjoy his company because he engages with them in a meaningful way and plays sport with them. In terms of his mother the Applicant advised that her two sisters were resident in Australia and one sister was resident in Samoa. The Applicant stated that his mother’s brother resided in Australia and that one brother was deceased. The Applicant stated that with respect to his late father that he had three sisters in Australia and one brother in Australia.
The Applicant stated that in terms of his Māori heritage that his family unit is extremely close-knit and that within the Māori culture family is very important. The Applicant stated that over the course of his working life the money that he has made has gone towards his immediate family and where necessary to his extended family. The Applicant stated that his family is a very big circle. The Applicant stated that most of his family members are not well off financially and have limited financial means. The Applicant reiterated that as a scaffolder he had always earned good money and that as the eldest son within his family unit he felt responsible for looking after his family.
The Applicant stated that he had been working in the construction industry since he was 18, and that he had worked in Nauru building houses. The Applicant stated that he had worked extensively in scaffolding but hoped if he was released into the community to work in crane operation. The Applicant stated that crane operators earned more money than scaffolders. The Applicant stated that the scaffolding culture has a strong tendency after work on Friday to go to the pub. The Applicant believed that if he moved into a different industry such as crane operation that he would be removed from the risks of his previous work culture.
The Applicant stated that apart from his immediate family and his extended family that he has four very close friends, one whom he met at school, and three whom he met through work. The Applicant stated that these friends have helped guide him through difficult times. The Applicant stated that he has gotten rid of people who he has known in the past who have been a poor influence on him with respect to alcohol abuse and associated offending behaviour. The Applicant stated that “you realise who your friends are when you go to jail”.
The Applicant stated that if he is released into the community that he intends to continue with his physical training, that he would like to join an Oz tag group, that he would like to go to the beach, and engage again with all of his extended family. The Applicant stated that within Māori culture that Waitangi Day is very important. The Applicant stated that on this day every year that he and his family are involved in community fundraising. The Applicant stated that they set up a store selling food cooked in a traditional hangi. The Applicant stated that he digs the pit to cook the hangi and that he and his family sell 1000 meals on the day. The Applicant stated that the proceeds of this fundraising goes towards Māori community projects. The Applicant stated that he wants to firmly focus on a positive future.
The Applicant stated that with respect to his children that his son is five years old and will turn six on 2 February 2025, and is about to go into year one at primary school. The Applicant stated that since he had been in immigration detention from April 2024 that he has been in constant communication with his two children on a daily basis. The Applicant stated that he helps his son with his homework and that he speaks to his children each evening before they go to sleep and the Applicant stated that he will prove his fitness to return to the family unit after residing at home with his mother then living independently and sharing co-parenting before moving back into the family home. The Applicant stated that his children love him, and that he spoke to them on the morning of the hearing.
With respect to rebuilding relationships with his family the Applicant stated that he wants to be more present in the life of his partner and his children. The Applicant stated that his son responds to physical affection and that as a father that he can provide direction and discipline to his son. The Applicant stated that he wishes to push his son down the right track and that his son “runs amok” with his mother. The Applicant stated that his son is ready to play sport and that he will start his son with soccer which is more appropriate than rugby as his son suffers with vision impairment and wears glasses. The Applicant stated that if he was deported back to New Zealand his son would be devastated. He advised that his son looks forward to their visits in detention. The Applicant stated that without his presence in Australia both his son and his daughter will struggle. The Applicant stated that his partner currently survives on a single mother’s income and that after her expenses with respect to the family unit that she is left with roughly $70 per week.
The Applicant stated that his daughter is currently three years old, having turned three in November 2024. The Applicant stated that he talks to his daughter every day and that she is ‘beautiful’. The Applicant stated that his daughter is particularly close to him and wants to talk to her daddy on a regular basis. The Applicant stated that he is more strict with respect to his son and more lenient towards his daughter. The Applicant stated that he wanted to be a good role model for his son and that he does not want his son going down the same path as him. The Applicant stated that if his visa was cancelled his daughter would cry and would be impacted by the financial instability that his removal from Australia would cause to the family unit. The Applicant stated that he believed that he brought a sense of security to his daughter’s life and that he believes that children should not be raised without their father.
With respect to his son in New Zealand the Applicant stated that he has not spoken to this son or his ex-partner since she left Australia many years ago.
With respect to his extended family the Applicant stated that off the top of his head he had eight nephews and two nieces and that he was very close to them. The Applicant stated that he spoke to them over the phone. The Applicant stated that his nieces and nephews loved him because he is good with kids, that he plays with them, and secretly gives them ice cream money. The Applicant believed that his nieces and nephews would be adversely impacted if he was deported to New Zealand. The Applicant stated that if he was deported to New Zealand, he believed that his mother may follow, and that his sister may follow as well, due to their dependence on him. The Applicant stated that this will have a profound impact on the wider family unit. The Applicant stated that his removal from Australia would upset the status quo within his family and will impact its integral function.
In terms of the consequences of the ongoing cancellation of his visa the Applicant stated that he left New Zealand when he was nine, that he has only returned to New Zealand on four brief occasions to attend funerals of family members in Wellington, Rotorua, Gisborne and Auckland. The Applicant stated that only his maternal grandmother remains in New Zealand. He advised his maternal grandfather is deceased and that his step-grandfather has cancer. The Applicant stated that he is not close to his maternal grandmother and has been estranged from her since his grandfather died. The Applicant stated that his maternal grandfather’s death was the catalyst for the family relocating to Australia and the Applicant stated that he does not communicate with his maternal grandmother. The Applicant stated that his maternal grandmother is suffering with dementia and requires a full-time carer and possibly needs to be placed into a nursing home facility.
The Applicant stated that he was concerned about job opportunities in New Zealand. He advised that he believed that he could get a job as he has never had an issue getting a job in the past but advised that wages in New Zealand are about one third of those in Australia. The Applicant stated that he would struggle to live in New Zealand because of cost of living expenses in that country and the need to provide ongoing support to his partner and children in Australia.
The Tribunal asked the Applicant what his biggest concern was if he was deported to New Zealand. The Applicant stated that he was concerned about somebody falling sick, noting again that he had recently lost his sister to cancer. The Applicant stated that if his mother could not work he would be very concerned about who would provide financial support to her. The Applicant stated he would have concerns about the provision of financial support to those struggling within the family unit. The Applicant stated that if a loved one died in Australia he would not be able to return to attend the funeral. The Applicant stated that he wanted his mother to remain in Australia because it was in her best interests to do so and that he also wants his partner and children to remain in Australia because it offers them a better quality of life than that available to them in New Zealand. In terms of the wage differential in New Zealand the Applicant stated that a one-bedroom apartment in Auckland would cost $470 per week on average and that the hourly rate for somebody within his trade would be $28 an hour equating to $800 per week. This would not leave sufficient residual funds to support his family in Australia.
The respondent’s representative Ms Jackson made closing submissions to the Tribunal.
Ms Jackson noted that the issue before the Tribunal is whether there is another reason to revoke the cancellation of the Applicant’s visa. The Minister contends that the primary considerations in Direction 110 should be given primacy, namely the seriousness of the criminal history, the risk to the Australian community and the expectations of the Australian community. The Minister further contends that these primary considerations outweigh considerations such as the strength, nature, and duration of the Applicant’s ties to Australia and the best interests of minor children in Australia affected by the decision.
The Minister’s representative noted that the Applicant had been the subject of 3 CCO’S and 1 Intensive Corrections Order which have given him the opportunity to address his alcohol issues and his anger management issues. The Minister’s representative noted that in disregard of the CCO’s the Applicant went on to commit the offence of grievous bodily harm.
The Minister’s representative noted that the Applicant had been unsuccessful in abstaining from alcohol in the community and that his presence in the community risks serious injury to the public. The Minister’s representative noted that the Applicant gave evidence that he has not engaged with supportive programs that will assist him in the community but claims now that if the cancellation is revoked, he is more willing to engage in such programs. The Minister’s representative noted that the programs and psychological intervention that the Applicant had engaged with to date would mitigate the risk of further offending in the community.
With respect to family violence the Minister’s representative noted that the Applicant does not accept all the facts with respect to the apprehended violence order but did accept that alcohol was a contributing factor. The Minister’s representative noted that with respect to the issue of family violence it was an isolated incident and that the evidence indicated that the Applicant was working on building a stronger relationship with his family.
With respect to the strength, nature and duration of the Applicant’s ties to Australia the Minister’s representative noted that the Applicant had been in Australia since he was eight years old. He had completed the bulk of his education history in Australia. That the Applicant’s entire employment history upon completing high school occurred in Australia and that Australia is ostensibly his home. The Minister’s representative noted that the Applicant has recommenced a relationship with his partner and the Applicant, and his partner now have plans to grow the relationship and bring stability into the relationship. The Minister’s representative acknowledged that all the Applicant’s family are in Australia namely his brother, his sisters, his mother, his partner, his aunts, uncles and cousins. The Minister’s representative noted that it was unclear whether these family members knew about the extent of the Applicant’s offending history. The Minister further acknowledged that the Applicant had close friends in the community with whom he maintained strong relationships with. The Minister’s representative noted that the Applicant had maintained continual employment in the community since he was 15 years old and has work lined up in the event that cancellation of his visa is revoked. The Minister acknowledged that the Applicant had engaged in cultural activities in Australia, was an avid sports player, had played in community sports and that all these factors weighed in favour of revocation of the Applicant’s visa.
With respect to the best interests of minor children in Australia the Minister’s representative stated that this consideration weighed in favour of revocation. The Minister raised however, that it was questionable whether the Applicant had been a good role model for his children to date and noted that the Applicant’s children have their Australian citizen mother in Australia. The Minister’s representative acknowledged that the Applicant intends to rebuild his relationship with his children. The Minister’s representative acknowledged that the Applicant has taken steps to reunite with his children since he had been in immigration detention and that these factors weighed in favour of revocation.
With respect to other considerations the Minister’s representative stated that they were reliant on their SFIC. The Minister submitted that the Applicant’s concerns about re-establishing employment in New Zealand is mitigated by the fact that the Applicant has an extensive work history and a range of skills. With respect to the legal consequences of the decision the Minister’s representative was reliant on the submission made in their SFIC.
The Minister’s representative in closing noted that risk factors, the protection and expectations of the Australian community along with the isolated incident of family violence weighed strongly against revocation of the Applicant’s visa and outweighed the considerations with respect to strength, nature and duration of ties to Australia, the best interests of minor children and other considerations in Direction 110.

“Family violence” is defined in paragraph 4(1) of the Direction to mean violent, threatening, or other behaviour that coerces or controls a member of the person’s family or causes that family member to be fearful.
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
Sub-paragraph (a) of paragraph 8.2(3) of the Direction points to an inquiry of the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness.
The Tribunal is satisfied that the Applicant has committed one act of family violence against his partner. The act of family violence was described by the Minster’s representative as being an ‘isolated incidence’ of family violence. The Tribunal notes that the incident occurred within the context of heavy alcohol use. The Tribunal notes that this factor does not in any way mitigate the nature of this offending but provides some context into its occurrence. The Tribunal notes that with respect to the offending the Magistrate imposed an apprehended violence order that did not preclude the Applicant living or interacting with his partner. The Magistrate recognised the problems that the Applicant had with alcohol abuse and hence subjected the Applicant to a CCO for 12 months overseen by Community Corrections in Fairfield requiring the Applicant to address both alcohol and domestic violence issues. Indeed, the Magistrate took the additional step of imposing a curfew and electronic monitoring upon the Applicant for 3 months and restricted his ability to move about between 10pm and 4am. This sentencing was clearly designed to address the Applicant’s underlying issue with alcohol. The Tribunal finds that if the Magistrate had deemed the Applicant a threat to his partner the order would have prohibited cohabitation and contact. The Tribunal is of the view that any form of family violence is unacceptable but finds that the evidence before it indicates that this was an isolated incident (a fact acknowledged by the Ministers representative), it was attributable to and no doubt exacerbated by the Applicant’s alcohol abuse and that the resumption of the relationship between the Applicant and his partner is indicative of her not maintaining any fear of family violence going forward.
Sub-paragraph (b) of paragraph 8.2(3) of the Direction concerns itself with the cumulative effect of repeated acts of family violence.
The evidence is such that the incident of family violence occurred once and was an isolated incident.
Sub-paragraph (c) of paragraph 8.2(3) of the Direction directs a decision-maker to consider any rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.
The evidence before the Tribunal indicates that the Applicant since his incarceration and subsequent immigration detention has engaged in a number of self-help programs, he has engaged with a psychologist in immigration detention along with drug and alcohol counsellors and the Applicant describes the experience of being sent to prison as a sobering one. The Applicant has also engaged in courses with respect to anger management and with respect to domestic violence. The Tribunal notes that the Minister has raised that the Applicant demonstrated a lack of insight with respect to the incident of family violence insofar as he apportioned some of the blame on the incident on his partner.
The Tribunal is satisfied for the following reasons that the Applicant understands the impact of his past family violence behaviour and has implemented efforts to address factors that contributed to that conduct.
·The Applicant has been alcohol free since his incarceration in 2023, firstly his term of imprisonment, followed by an extended period of immigration detention.
·The Applicant has set out well laid plans to ensure a sound re-establishment of cohabitation with his partner if he is released into the community. As has been discussed above the Applicant if he is released into the community will reside with his mother to demonstrate to his partner and indeed to his wider family that he is alcohol free and that he is operating within the boundaries of the law. Once the Applicant has established this to the satisfaction of his partner and family members, he intends to move into independent accommodation and to actively coparent his children by living in close proximity to them. After the Applicant has lived in independent accommodation for a period of time and once again demonstrated that he is alcohol free and has had no interaction with the criminal justice system the Applicant will recommence cohabitation with his partner and his two children.
These plans are indicative of a step-by-step process of reintegration of the Applicant into the community, an opportunity for the Applicant to rebuild trust that has been shattered over time and to demonstrate a commitment to abstinence from alcohol which has led to his current predicament and to his interaction with the criminal justice system on every occasion. The Tribunal accordingly finds based on this evidence that it demonstrates a level of rehabilitation.
Sub-paragraph (d) of paragraph 8.2(3) of the Direction points to an inquiry as to 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.
The Applicant committed one act of family violence and there is no evidence of re-offending in this respect.
Considering the sub-paragraphs in their totality the Tribunal finds that some limited weight should be given against the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 2
The Tribunal finds that some limited weight should be given to Primary Consideration 2 against the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
The Tribunal must consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
Sub-paragraph (a) of paragraph 8.3(2) of the Direction directs a decision-maker to have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child. Less weight should be given where the non-citizen began offending soon after arriving in Australia. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
The Applicant came to Australia with his family as a 9 year old. The Applicant completed the balance of his primary schooling and all of his secondary schooling in Australia. The Applicant left school at the age of 14 turning 15 and the evidence before the Tribunal indicates that the Applicant has had consistent full-time work predominantly as a scaffolder and hence all of his work history has been in Australia.
The evidence indicates that the Applicant’s mother, younger sister, and two brothers are all resident in Australia. The evidence indicates that the Applicant’s father died suddenly from heart failure in 2015 in Australia. The evidence indicates that the Applicants 37-year-old older sister passed away in January 2024 from cancer, leaving behind six children. The evidence indicates that the Applicant is the eldest son in the family. The evidence indicates that in the Māori culture this brings a whole range of responsibilities. The evidence indicates that the Applicant because of his consistent work history and the fact that he was making good money in the construction sector has been able to provide financial support to family members in need over the duration of his working life. The Applicant stated that many of his extended family members have lived in challenging financial circumstances. The evidence indicates that the Applicant has contributed to the medical costs associated with the care of a cousin who was suffering with cancer and with respect to his sister who passed away from cancer in January 2024.
The evidence before the Tribunal indicates that the Applicant has been in a relationship with his partner, the mother of his two young children since 2017. The evidence indicates that due to the Applicant’s alcohol abuse and offending history that the relationship for a period of time faltered. The evidence indicates that there has been a resumption of the relationship, and this is confirmed in the statutory declaration that is before the Tribunal for the purposes of this review provided by the Applicant’s partner.
The Applicant’s partner has given evidence that the Applicant has been a good financial provider and that since his imprisonment and subsequent immigration detention the loss of the Applicant’s income has had a profound impact on the finances of the family unit.
The evidence before the Tribunal indicates that the Applicant’s eldest child, his son, has completed one year of primary school and will commence year one in primary school in 2025. The Applicant’s daughter is currently three years old. The evidence before the Tribunal indicates that the Applicant has been involved in the co-parenting of his children prior to his incarceration. As has been discussed in these reasons for decision the evidence indicates that if the Applicant is released into the community there is a three-step plan with respect to the Applicant reintegrating with his family which involves the Applicant living with his mother, then living independently, and after a period of demonstrated sobriety, moving back into the family home.
The evidence before the Tribunal indicates that the Applicant has a number of close friends in Australia. The evidence indicates that the Applicant as a younger man played rugby union and that in recent years prior to his incarceration was involved in team sports such as E tag and touch football.
The evidence indicates that as an individual of Māori descent the Applicant and his family have been involved in celebrating and fundraising on Waitangi Day each year. The Applicant gave evidence that he and his extended family are involved in attending Waitangi Day celebrations, preparing a Hangi and serving meals to 1000 people to raise money for the community.
The evidence before the Tribunal indicates that the only remaining relatives of the Applicant in New Zealand are a son D from a previous relationship with whom he is estranged, along with his maternal grandmother who resides with her third husband. The Applicant gave evidence that his maternal grandmother is suffering with dementia and that he does not have a close relationship with her.
As has been noted in these reasons for decision the Applicant has an extensive work history since leaving school in year 10 and has meaningfully contributed to the Australian economy through the payment of taxes.
The Applicant has provided a statement from a colleague Michael Van Nimwegan dated 7 June 2024 who has attested to the Applicant’s work ethic and his character. The Applicant also provided a statement from Chad Swanepoel dated 18 May 2024 noting that he had known the Applicant for a period of 10 years. The reference states that the Applicant’s character is unquestionable and that he is respectful in every aspect of his leadership on the worksite amongst his peers. The reference notes that the Applicant has extended family and his immediate family in Australia and that the Applicant should be able to remain in Australia so that he can be a part of his immediate and extended families lives.
The Applicant also provided a reference from Mr Frank Tahu the Managing Director of Samson Scaffolding in Prestons New South Wales, dated 10 May 2024. Mr Tahu describes the Applicant as being a person of exceptional character and reputation and that with respect to work that he is honest, responsible and steadfast. Mr Tahu notes that in the event that the Applicant is released into the community that he can offer him stable employment going forward if required.
Evidence provided by the Applicant’s mother Adah Kingi Haimona in a statement dated 23 May 2024 found at document G17 page 102 notes that the Applicant had been in Australia since he was a young child. The Applicant’s mother describes that the Applicant was always well-behaved and protective of his brothers and sisters and was kind-hearted and well mannered. The Applicant’s mother refers to the death of her husband whilst the family were on holiday in 2015 when he was only 49 years old, due to a heart attack. The Applicant’s mother notes that the Applicant took on the role and responsibility of his father and the Applicant’s mother states that she hopes that the Applicant will be given a chance to reintegrate back into society, to work on himself and to be a better son, partner, and father, and that the family will support him “all the way”.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs strongly in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction obliges a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.
Paragraph 8.4(2) provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made.
Paragraph 8.4(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant has a 5 year old son and a 3 year old daughter. The evidence indicates that the Applicant has been a good provider to his partner and to his two children. The evidence indicates that the Applicant has been actively involved in the co-parenting of his children up until his incarceration and a brief period of estrangement from his partner due to his alcohol abuse and offending. The evidence indicates that the Applicant and his partner have now recommenced a commitment to their relationship going forward. The evidence indicates that since the Applicant has been in immigration detention from April 2024 that he has been able to resume a close relationship with both of his children via video and audio calls and through regular visits. The evidence provided by the Applicant at the review hearing indicates that he is deeply involved with both of his children and wishes to have an active role in their co-parenting going forward.
Reference to the statement provided by the Applicant’s partner Ms F notes that both herself and the Applicant had experienced not having an active father present in their homes as they were growing up, the Applicant after the death of his father in 2015. She notes that both herself and the Applicant are aware of the negative repercussions of having an absent father. She notes that “the possibility of Tai’s permanent absence to another country will cause emotional distraught within our children. They have developed quite the bond which is why I believe it is of the utmost importance for Tai to reside in the country for the sake of our children. Tai will also immensely help relieve me of the financial pressures & our children will not ever have to go without medical or educational essentials & other important miscellaneous needs”.
The Applicant expressed at hearing his unconditional love for both his children, his strong desire to be re-connected with them in the community, his desire to be a good financial provider and role model going forward. The Applicant also stated that he wants to be able to provide direction and discipline to his son and a father’s love for his daughter. The Applicant also stated that Australia offered his Australian citizen children and his Australian citizen partner the best opportunities going forward and that if he was deported to New Zealand he would not want them to follow him (despite his partner saying she will) due to what he perceives to be poorer life chances and opportunities in that country.
Sub-paragraph (a) of paragraph 8.4(4) points to a consideration of the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact).
The evidence before the Tribunal indicates that the Applicant has been actively involved in the co-parenting of his children up until the time of his incarceration and during a brief period of estrangement. The Applicant has a re-assumed an active role in the lives of his children since he went into immigration detention where he has access to a mobile phone and hence, he has been able to maintain video and audio contact with his children and his partner has taken the children to Villawood to visit. Visitation whilst the Applicant was in prison was difficult and expensive for his partner due to the fact that he served most of his term in Kempsey and Tamworth. The evidence indicates that whilst in the community the Applicant maintained a very strong work ethic and was liked by managers and co-workers because of that ethic and contributed to the financial well-being of his children.
Sub-paragraph (b) of paragraph 8.4(4) points to a consideration of the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.
The Applicants son is 5 and his daughter is 3 and there is a lengthy period of time before they reach adulthood. The evidence is suggestive of a strong bond between the Applicant and his young son, and the evidence suggests that the Applicant’s son could benefit from having a male role model in his life. Conversely, the Applicant is very close to his daughter and wishes to play an active role in her life going forward.
Sub-paragraph (c) of paragraph 8.4(4) points to a consideration of the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.
There is no evidence before the Tribunal that the Applicant’s son and daughter have been negatively impacted by the Applicant’s conduct apart from them being present when their parents argued and lashed out at one another leading to the issuing of an AVO.
The evidence as discussed indicates that there is a 3-step plan in place in the event that the Applicant is released into the community prior to the Applicant resuming to live in the family home with his partner and children. This plan will ensure that the Applicant will maintain his sobriety in order to demonstrate a long and sustained period of sobriety in the community which will mitigate the risk of any re-offending.

Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.
The evidence before the Tribunal indicates that the Applicant’s son aged 5 and his daughter aged 3 will miss their father and the emotional, physical and financial support he provides to them if he is removed from Australia.
Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
The Applicant’s partner currently fulfills a parental role for the couple’s two children whilst he is incarcerated. The evidence before the Tribunal indicates that the Applicant and his partner are committed to the co-parenting of their children going forward.
Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The Applicant’s partner in her statement advised that the Applicant has a close bond with his two children, and it would be a wrench if he was removed to New Zealand and that both she and the Applicant have experienced growing up without a father in their lives for a period of time and that she would not want that fate to befall her children.
Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally.
The Applicant’s son was 4 years old and his daughter was aged 2 during the one incident of family violence perpetrated by the Applicant.
Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is no evidence of the Applicant’s two children suffering or experiencing physical or emotional trauma as a consequence of the one incident of family violence.
Considering all of the evidence before it under this Primary Consideration, the Tribunal is satisfied that the best interests of minor children in Australia affected by this decision strongly weigh in favour of the revocation of cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs strongly in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws whilst in Australia.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.
Paragraph 8.5(4) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which a decision maker is required to have regard to.
In assessing the weight attributable to Primary Consideration 5, the Tribunal has had regard to the following.
The Applicant committed his first offence of common assault in 2009 and his second offence of disorderly behaviour in public in 2010. These offences had alcohol as an underlying attribute of the offending. These offences led to the imposition of a fine.
As discussed, there was a gap in the offending between 2010 and 2016 a time that the Applicant stated he worked hard, engaged in physical fitness, and did not consume alcohol.
The resumption of alcohol led to the resumption of offending. In 2016 the Applicant was convicted of driving with a low range prescribed concentration of alcohol.
Clearly, the conviction had a sobering impact on the Applicant as he did not offend again until late 2019 at which time he rear ended a car whilst heavily intoxicated. When the victim called the police, the Applicant was abusive to the victim and abusive and uncooperative with the attending police, and this led to a raft of charges including assault and resist arrest.
The Applicant was involved in one incident of family violence in 2021 when his partner lashed out at him for coming home intoxicated and the Applicant overstepped the mark in terms of attempting to restrain his partner which led to the imposition of an AVO. The AVO did not preclude the Applicant from continuing to reside with his partner and children, but it did preclude him from engaging in further family violence and consuming alcohol and having to engage in electronic monitoring. The evidence indicates that the Applicant complied with the terms of the AVO and there were no further incidences of family violence recorded in the Applicant’s criminal profile.
The next offending in 2023 came about when the Applicant, after engaging in a drinking session after work fell asleep on a train, missed his stop, and ended up in Hornsby. The Applicant was lying on a chair on the platform of the station and came to the attention of the authorities leading again to a raft of convictions for hindering an officer in the execution of their duty and failing to present a valid ticket.
In 2023 the Applicant was convicted of an assault arising from another drinking incident when he and work mates had been drinking at a hotel in Liverpool when they were assaulted and rather than reporting the assault to the police, the Applicant and his mates took matters into their own hands.
The Applicant was convicted of further offending, both assaults, and both involving the Applicants consumption of alcohol. An offence in Newtown related to the Applicant believing that he had been racially profiled by the employee of a bottle shop with the Applicant assaulting the employee. The second and indeed most serious offending occurring in Armidale when the Applicant believed a colleague had been racially abused and hit the victim once leading to that victim falling and hitting his head on the concrete, suffering a brain bleed and being airlifted to a suitable facility for treatment. For this offence, the Applicant received a 12 month sentence but the Magistrate having regard to the special circumstances of the case ordered the Applicant to be released in 7 months.
This history of criminal conduct in Australia raises concerns with respect to the Applicant’s behaviour when he is impacted by alcohol.
The Applicant has abstained from alcohol use since he was incarcerated in 2023 and the Applicant has given undertakings whilst in prison and in immigration detention and to the parole authorities and to this Tribunal under oath of his intention to remain to do so going forward.
The Tribunal finds that any form of assault is abhorrent irrespective of whether or not alcohol is a factor.
The Tribunal finds that the Applicants offending in Armidale was serious and this is reflected in the fact that the Applicant was sentenced to a 12-month term of imprisonment for which he was directed to only serve 7 months.
The Tribunal finds that the risk of further offending has been mitigated by a range of factors that have been extensively canvassed in this decision record.
With respect to the Armidale offending the Applicant spent 7 months in prison and the Applicant gave evidence that this was both a confronting and indeed sobering experience and one that he would never wish to repeat.
The Tribunal finds on the basis of the evidence before it that for the most part of his adult life in Australia the Applicant has largely been of good character, and that deviations from this have only occurred when alcohol has come into the equation.
The Applicant has served a jail term for 7 months and has been deprived of his liberty in immigration detention since April 2024. The Applicant has been sober since his imprisonment and has developed strategies to assist him re-integrating into the community upon his release and a large part of this will involve abstinence from alcohol.
Conclusion: Primary Consideration 5
On balance the Tribunal finds that some weight should be given to Primary Consideration 5 against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
There is no evidence before the Tribunal of any non-refoulement obligations that may arise in this matter, or that it would be impracticable to remove the Applicant to New Zealand. Accordingly, the Tribunal does not consider this consideration to be relevant.
(b) Extent of impediments if removed
The Applicant is 33 years old and is a relatively young man who has worked predominantly in the construction industry as a scaffolder. The Applicant has a solid work history since leaving school in year 10.
The Applicant has resided continuously in Australia since he was 9 years old. The Applicant’s mother, sister, 2 brothers, and all of his maternal aunts and uncles and their children reside in Australia. The Applicant’s Australian citizen partner also resides in Australia along with the Applicant’s Australian citizen dependent son and daughter.
The only relatives of the Applicant remaining in New Zealand are his maternal grandmother. The Applicant has a 14 year old son from a previous relationship with whom he is estranged.
The Applicant’s family is a close knit one. The Applicant is the eldest son in his family and hence as expected in Māori culture he maintains particular responsibilities within the family unit. This has become more pronounced since the applicant’s father died suddenly in 2015.
As has been extensively canvassed in this decision record the applicant has struggled as an adult with binge drinking to excess. The applicant’s drinking behaviour has brought him into contact with the criminal justice system and lead to a criminal record in Australia. The evidence indicates that a big part of the applicant’s ongoing rehabilitation plans with respect to abstinence from alcohol is reliance on the support of his partner, his immediate family and his extended family. Indeed, the applicant’s mother has provided evidence of the role that she will play in supporting the applicant if he is released into the community. The applicant’s removal to New Zealand would have a substantially adverse impact on the applicant in terms of ongoing familial support with his ongoing rehabilitation.
In addition to this the evidence before the Tribunal indicates that the applicant has a solid work history as a scaffolder in the construction industry and the references provided for the purposes of the review indicate that he was a well-respected team member and valued by management. The applicant has organised work as a scaffolder if he is released into the community. In addition to this the applicant expressed at the review hearing that he is interested in extending his skills to crane operation and the applicant hopes to pursue this if he is able to remain in Australia. Because of the poorer job market in New Zealand the applicant may face impediments with respect to ongoing employment in that country.
The evidence is such that the Applicant would not suffer any language or cultural barriers in New Zealand as he was born in that country in 1991. New Zealand offers medical and economic support systems comparable to those available in Australia and there is nothing to suggest that those systems would not be available to the applicant if he returned to New Zealand .
The Tribunal is satisfied that the Applicant may experience some difficulties in re-establishing employment. The Tribunal finds that the removal from the applicant’s own family, his immediate family and indeed his extended family in Australia would act as a significant impediment to his rehabilitation and ongoing self-improvement moving forward.
(c) Impact on Australian business interests
There is evidence before the Tribunal that the applicant has been a valued employee of Samson Scaffolding in Prestons. The Applicant according to his manager Fredrick Tahu has been a highly valued worker who has demonstrated integrity and dedication in the workplace. The evidence indicates that the Applicant has many years of experience as a scaffolder and has worked as a team leader on a number of worksites. There is no evidence before the Tribunal that indicates that the removal of the applicant from Australia would have an adverse impact on Australian business interests. Accordingly, the Tribunal does not consider this consideration to be relevant.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason pursuant to Direction 110 to revoke the cancellation.
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason pursuant to Direction 110 to revoke the cancellation.
Having regard to the evidence before it the Tribunal finds that the Applicant does not pass the character test.
In considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs moderately against the revocation of the cancellation of the Applicant’s visa and as noted this finding has been made on the basis of a range of factors that in the view of the Tribunal mitigate risk. The Tribunal notes that this consideration is not of itself determinative.
(b)Primary Consideration 2 is given limited weight against the revocation of the cancellation of the Applicant’s visa.
(c)Primary Consideration 3 weighs strongly in favour of the revocation of the cancellation of the Applicant’s visa.
(d)Primary Consideration 4 is weighs strongly in favour of the revocation of the cancellation of the Applicant’s visa.
(e)Primary Consideration 5 is given some weight against the revocation of the cancellation of the Applicant’s visa.
(f)To the extent that they are relevant, the Other Considerations weigh in favour of the revocation of the cancellation of the Applicant’s visa.
For the stated reasons, the Tribunal gives moderate weight to Primary Consideration 1 and the protection of the Australian community with respect to the cancellation of the Applicant’s visa. Limited weight is apportioned to Primary Consideration 2. Strong weight is given to Primary Consideration 3 with respect to the revocation of the Applicant’s visa. Strong weight is given to Primary Consideration 4 with respect to the revocation of the Applicant’s visa. Primary Consideration 5 is given some weight against the cancellation of the Applicant’s visa. The Tribunal gives weight to other considerations with respect to the revocation of the Applicant’s visa. Cumulatively considering the Primary Considerations and the Other Considerations the Tribunal finds that the cancellation of the Applicant’s visa should be revoked.
The Tribunal has given careful consideration to all of the Primary Considerations and those of the Primary Considerations that are given primacy and the weight that should be apportioned to these considerations. The Tribunal has also given careful consideration to the Other Considerations. The Tribunal finds that having regard to the totality of the evidence and with respect to those considerations, that the cancellation of the Applicant’s Subclass 444 visa should be revoked.
Accordingly, the Tribunal is satisfied that the cancellation of the Applicant’s visa should be revoked.
DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked

Date(s) of hearing: 7 January 2025

Applicant: Self-Represented

Solicitors for the Respondent: Ms T Jackson, MinterEllison

Date(s) of hearing:	7 January 2025
Applicant:	Self-Represented
Solicitors for the Respondent:	Ms T Jackson, MinterEllison