Malielegaoi and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 96
•10 February 2025
Malielegaoi and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 96 (10 February 2025)
Applicant:Maluolefale Malielegaoi
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9821
Tribunal:General Member S Evans
Place:Sydney
Date:10 February 2025
Decision:The Tribunal affirms the decision under review.
...............................[SGD].........................................
General Member S Evans
CATCHWORDS
MIGRATION – Mandatory cancellation of Applicant’s visa – substantial criminal record – history of family violence offences and contraventions of AVO (Domestic) - Direction 110 – whether there is ‘another reason’ to revoke mandatory cancellation – citizen of New Zealand – medium risk of reoffending – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 at [24]-[25]
SECONDARY MATERIALS
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110)
STATEMENT OF REASONS
Maluolefale Malielegaoi (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) not to exercise the discretion to revoke the mandatory cancellation of his visa pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (the Act).[1]
[1] G-Documents (‘G’) G2, p.14-15.
INTRODUCTION
The Applicant was born in Samoa in 1980 and later acquired New Zealand citizenship.[2] He migrated to Australia from New Zealand on 15 March 2015 with his ex-partner and their child.[3] On 9 August 2023, the Applicant was convicted of two counts of Stalk/intimidate intend fear physical etc harm (domestic)-T2, Take & drive conveyance w/o consent owner-T2, Common assault (DV)-T2 and 4 counts of Contravene prohibition/restriction in AVO (Domestic) for which he was sentenced to an aggregate term of 12 months imprisonment.[4]
[2] G8, p.216; G2, p.58.
[3] G2, p.146-147.
[4] G2, p.45-47; p.57-62.
On 31 August 2023, the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa was cancelled (the cancellation decision). On 19 September 2023 he submitted his request for revocation of the cancellation decision.[5] On 18 November 2024 a delegate of the Respondent decided not to exercise the discretion under section 501CA(4) of the Act not to revoke the cancellation decision. On 26 November 2024, the Applicant applied for review of the delegate’s decision not to revoke the cancellation decision (the reviewable decision) in the Administrative Review Tribunal (the Tribunal).[6]
[5] G2, p.148-154; G2, p.93-112.
[6] G1, p.13.
For the reasons that follow, the reviewable decision will be affirmed.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of paragraphs 501(6)(a) and 501(7)(c) of the Act.
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person does not pass the character test if the person has been sentenced to a term of imprisonment of 12 months or more.
The Minister may revoke the original cancellation decision pursuant to paragraph 501CA(4) of the Act. Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of Direction 110 identifies the considerations the Tribunal must take into account where relevant to a decision.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
It is not controversial that the Applicant does not pass the character test by operation of s 501(6)(a) of the Act because he has a ‘substantial criminal record’ as defined in subsection 501(7) of the Act. As the Applicant does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.
EVIDENCE
The Applicant’s evidence
The Applicant gave evidence that he is seeking to have his visa reinstated so he can support his family and children. He obtained paid employment the day he arrived in Australia in March 2015 and commenced work the following day. He claims to have learnt from his experience and emphasised that he did not physically assault or ‘lay a hand’ on the victims of his family violence offending. He intends to try his best to be a worthwhile member of the community should the cancellation of his visa be revoked.
When he was asked about his criminal history in Australia, which includes family violence, common assault, and destroyed and damaged property offences, he claimed that the victims of his offending had exaggerated when making statements to police, noting he had not physically assaulted either his former or current partner.
Should he return to the community, the Applicant plans to live with his sister and her children. A domestic AVO remains in place restricting access and contact between the Applicant and his current partner. The AVO is due to expire next year, but the Applicant is uncertain if he will live with his partner and daughter. His priority for now is to continue to support his children from both his first and second relationship.
The Applicant gave evidence that he had been paying child support for all three of his children, but had ceased doing so when he was sent to jail. The mothers of both his children confirm this to be the case and in evidence are payslips which demonstrate child support was taken from the Applicant’s fortnightly pay.[7] Nonetheless, a Child Support Account Statement dated 19 August 2023 shows and overdue balance of $11,363.[8]
[7] Applicant’s Materials (as filed by Respondent) 24 January 2025 at A4, p.34-36.
[8] G2 p.122-123.
Evidence of Sauleone Tuipala, the Applicant’s partner
Ms Tuipala provided statements in support of the Applicant and gave evidence at the hearing.[9]
[9] Statement of Sauleone Tuipala dated 9 January 2025; Statement of Sauleone Tuipala dated 24 April 2024.
She gave evidence that where she was the victim of the Applicant’s offending, the incidents were not important, and she had also been drinking. Ms Tuipala has never been afraid of the Applicant and confirmed the Applicant has never hit her. She conceded she had no knowledge about the nature of offending against his ex-partner.
Ms Tuipala expressed confidence the Applicant has made positive changes in his life, in part because they now have a daughter together.
Ms Tuipala said that the Applicant had been a loving stepfather to her adult son. She is a full-time mother and waiting for her sister-in-law to open a childcare centre so she can return to work. She is currently reliant on her son’s financial support while the Applicant is being held in detention and fears the Applicant will not have capacity to pay child support from New Zealand.
CONSIDERATIONS AND REASONING
Primary Consideration 1: Protection of the Australian Community
I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.(1) of the Direction states:
1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1.1. provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2. requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct’.
Nature and seriousness of the conduct to date
Paragraph 8.1.1 of Direction 110 provides that ‘in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following’:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
Between 2010 and 2012 the Applicant was convicted in New Zealand of four counts of driving whilst disqualified and two of drink driving.[10] The Applicant’s criminal offending in Australia is listed in the Nationally Coordinated Criminal History Check report.[11]
[10] G2, p.56.
[11] G2, p.44-55.
On 17 April 2015, the Applicant was convicted of Stalk/intimidate intend fear physical etc harm (domestic)-T2, and he was sentenced to a Section 9 bond for 18 months.[12] On 27 July 2015 the Applicant breached his section 9 bond he received by sending threatening messages to his wife and scratching a vehicle belonging to his in-laws.[13] He was ordered to attend the local Court of New South Wales in Liverpool on 11 August 2015 but failed to do so resulting in a conviction of Fail to appear in accordance with bail acknowledgment.
[12] Ibid, p.55.
[13] G2, p.77.
On 28 September 2015, the Applicant was called up at the local Court of New South Wales at Liverpool for violating a bond issued to him on 17 April 2015 in relation to the Stalk/intimidate intend fear physical etc–harm (domestic)-T2 conviction. He was also convicted of Stalk/intimidate intend fear physical etc harm (Domestic), Contravene prohibition/restriction in AVO (Domestic), Destroy or damage property and Fail to appear in accordance with bail acknowledgment and received an overall sentence of one year and two months’ imprisonment with a non-parole period of nine months. In sentencing the Applicant Magistrate Degnan described the circumstances of the first offence in Australia, where he took his three year-old son into a room and locked everyone out:[14]
HIS HONOUR: Okay. You took [your son] into a room. You locked everyone out of the room except for you and him. You sent the mother a text saying, “Your son has died. I’m gone now”. And then when she’s screaming at the door you don’t let her in. You don’t let anyone in until the police arrive. You were given a s 9 bond for that which, in my view, was lenient and you breached the bond within three months. Well, after three months you’d breached the bond already by threatening your ex-partner again by saying, “If you don’t come I’ll cause damage to your property” and then you - because you want to see your son - you then scratch someone’s car that’s parked out the front and let the tyres down and you’ve done all this having just arrived in Australia in March. Do you understand the laws in Australia? Do you understand we do not tolerate this behaviour?
[14] G2, p.83-85.
The Applicant appealed the severity of the sentence and on 16 November 2015 the District Court of New South Wales in Parramatta upheld the convictions and his sentence was suspended and he was placed on three section 12 bonds and required to attend alcohol rehabilitation.[15]
[15] G2, p.76-82.
On 29 March 2016, the Applicant was convicted by the local Court of New South Wales in Parramatta of Contravene prohibition/restriction in AVO (Domestic) and sentenced to four months imprisonment. On the same day, his previous convictions were called up including Stalk/intimidate intend fear physical etc harm (domestic), Destroy or damage property (DV),Contravene prohibition/restriction in AVO (Domestic) and Fail to appear in accordance with bail acknowledgment.[16]
[16] G2, p.73-75; Respondent’s Statement of Facts, Issues and Contentions dated 17 January 2025 at [5].
On 3 May 2022, the Applicant appeared in the local Court of Campbelltown of New South Wales where he was convicted of offences including Destroy or damage property (DV), Resist officer in execution of duty (DV) and Stalk/intimidate intend fear physical etc harm (domestic) and sentenced to a 12-month community corrections order which concluded on 2 May 2023.[17]
[17] Respondent’s Statement of Facts, Issues and Contentions dated 17 January 2025 at [5].
On 9 August 2023, the Applicant was convicted in the local Court of New South Wales Campbelltown of Take & drive conveyance without consent of owner, two counts of Stalk/intimidate intend fear physical etc harm (domestic), Common assault (DV), Resist officer in execution of duty (DV) and four counts of Contravene prohibition/restriction in AVO (Domestic). He was sentenced to an aggregate term of 12 months imprisonment and issued with an Apprehended Violence Order for three years.[18] In sentencing the Applicant Magistrate McAnulty observed that the Applicant had a record of contravening apprehended violence orders back to 2015 and had previously been given the benefit of being placed on a good behaviour bond.[19] In sentencing the Applicant His Honour stated that the Applicant continued to ‘thumb his nose’ at orders of the Court and summarised the relevant conduct:
HIS HONOUR: In relation to these matters, Mr Maglielegaoi - sorry for the pronunciation - appears in relation to a number of charges of contravening an apprehended violence order, common assault, stalk/intimidate charges, take and drive a conveyance. In relation to the matters, I am told from the fact sheet that he and his partner had been in a relationship for a period of time. Last year there were a number of matters that brought him before the Court for damaging property, stalk/intimidate charges in relation to the lady and in May last year, 2022, was put on a good behaviour bond for what was said to be damaging property and intimidating the person with whom he had a relationship.
In relation to the matter, the charge that brought him before the Court was essentially a matter where there was an argument in late 2021, the accused had taken a brick, smashed some drawers, became particularly violent. At that point in time, was asked to leave by the young lady in relation to the premises. Police were involved and became quite violent upon the police arrival at that time. The magistrate at that time gave him the benefit of putting him on a good behaviour bond for a period of time. His record is one where that there was contravention of apprehended violence orders back on 2015 in which he was sentenced to a term of imprisonment. The District Court felt fit to vary that to a suspended sentence. After that, there were call-ups for breach of those orders at that time and 2016 there were further terms of imprisonment imposed for contravention of orders. They may involve different people but they certainly indicate a pattern of behaviour over a period of time for people that are in a domestic relationship with him.
As I said, having been dealt with in May, there were orders put in place, orders put in place that he not do certain things, not go to the premises, not be with that particular person because of the violent behaviour that was exhibited on that particular occasion. Despite those orders being made, you get to October of last year. There is further arguments in relation to the accused and the young lady in relation to it. There is an argument at the premises in October. Despite orders being put in place that he not contact her by any means, there were phone calls made, there were messages sent telling her, “Fuck you, fuck your fella’s car. You watch, I’m going to do something about it”. In relation to it, it caused the person some concern. She had made a complaint to police. Despite that phone call, there were further phone calls and text messages in relation to the matter making, again, similar threats to the young lady. Those were events that occurred through October and November of last year.
There were further events that occurred in October last year. There, again, involving the same parties. There involved following an argument in relation to the matter. There again, on one occasion, he had got into a motor vehicle, told the young lady that, effectively, he was going to run her over, shouting at her, trying to get her back into the car at that particular time, effectively throwing glass bottles at the young lady in this incident with the car and, as I said, threatening to run her over. There again, there are further events having been put on bail for those matters - firstly the October matters - and reaffirming the orders, there was the November matters, then there were December matters. There again, involved contact with the young lady and involved allegations that he turned up and did certain things, despite the fact that he was told that he cannot breach those conditions, cannot contact her in any way. There again, they are matters of – [the Applicant’s lawyer] says not matters of violence, but I take it when somebody tells you and throw something at you - being a glass bottle, driving a car in your direction or telling you to “Watch your back, I’m going to do something about it”, as far as I am concerned, those threats do not necessarily involve physical contact but they put a person in fear and they are what the courts have said time and time again are matters that are serious. There has been reference to other matters and other courts for s 10s. I do not have regard to any of those matters. There are trivial matters every day in this Court, but they do not involve a person telling the person with whom they supposedly have a relationship, albeit a short-term relationship, that they are going to kill them, threaten to kill them, threaten to run them over and become violent with them on every conceivable occasion…[20]
[18] G2, p.57-62.
[19] G2, p.59.
[20] G2, p.57-62.
The Applicant’s offending conduct commenced shortly after his arrival in Australia and on 28 September 2015 he was convicted of Stalk/intimidate intend fear physical etc harm (domestic) T2, Destroy or damage property (DV) and contravene prohibition/restriction in AVO (Domestic) for crimes perpetrated against his ex-wife. This offending and some subsequent offending, satisfies the definition of ‘family violence’ for the purpose of Direction 110.[21]
[21] G2, p.54-55.
I am required to take into account the impact of the offending on the victims where known. In this regard, I note that the Applicant’s current partner claimed to not have been afraid of him. Although the impact of his conduct on his ex-wife is unknown, she has also provided written statements in support of the Applicant.
In sentencing the Applicant on 9 August 2023, Magistrate McAnulty noted that the Applicant’s offending had not resulted in the physical injury to his victims, but the behaviour and threats of the Applicant were serious and caused fear.[22] I accept the Respondent’s contention that the cumulative effect of the Applicant’s repeated family violence offending and breaches of AVO’s would have placed the victims under prolonged fear of violence.
[22] G2, p.57-62.
The Applicant’s offending includes multiple instances of violent and threatening behaviour, intentionally damaging or destroying property and causing his partner, ex-partner and niece to be fearful. Although the Applicant did not reoffend for five years, I find that his offending has been frequent, and having regard to the sentences imposed on the Applicant, of increasing seriousness over time.
The Direction provides that crimes committed against government representatives of official in the performance of their duties should be viewed as serious and the Applicant’s offending includes a conviction of Resist officer in execution of duty (DV)-T2. The Applicant also provided false information to the Department by failing to declare his convictions on incoming passenger cards presented on 9 February 2018 and 15 March 2015.[23]
[23] G2, p.144-145.
Having regard to the considerations in the Direction, I consider the Applicant’s offending to date to be serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides in part:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of future harm
The nature of the harm to the Australian community should the Applicant engage in further offending of a similar nature to that which he has engaged in the past include serious physical and psychological harm to the Australian community.
The likelihood of the Applicant engaging in further criminal or other serious conduct.
The Applicant said that he has learnt from his past actions and offending. He submits that I can be assured he will be able to control himself and walk away from future confrontation because what has happened has taught him a great lesson. He now understands the law and the consequences of breaking the law. He also has a strong desire to be a better person and make a positive contribution to his family and the community.
Between 2010 and 2012 the Applicant was convicted in New Zealand of four counts of driving whilst disqualified and two of drink driving.[24] When asked about his criminal history in New Zealand the Applicant acknowledged he was responsible for his offending which he attributed to his youth and poor judgement on his part. He considers that he has learnt from that experience, and noted he has not recorded any driving related offences in Australia.
[24] G2, p.56.
The Applicant has expressed shame and remorse for his actions and offending and acknowledged he needs help. The Applicant claimed to have engaged in personal development to change his behaviour including EQUIPS, DV & Aggression and SSP.[25] His lawyer told the Court on 9 August 2023 that the Applicant had taken control of his life and accepted he had anger issues. The Court was told that while in prison the Applicant had completed connect stress management, mindfulness de-stress course, forms of addictions and coping mechanisms course.[26]
[25] G2, p.108.
[26] G2, p.57-62.
The evidence does not support the Applicant having completed these programs. A Corrective Services offender program services status report sets out the rehabilitation programs and services that the Applicant has engaged in.[27] It records him having attended an anger management course, but not having completed any training courses focussed on domestic or family violence. The Applicant’s evidence was that he was unable to participate in programs focussed on domestic violence because he was released from custody. He also claims he lacked information about courses or programs that may have been available and how to enrol in them.
[27] Summonsed Materials (‘SM’), SM2, p.283-284.
The sentencing judge in the District Court of NSW recognised on 16 November 2015 that the Applicant ‘appears to have an alcohol problem’.[28] He was ordered by the Parramatta District Court to undertake alcohol rehabilitation. In sentencing the Applicant on 29 March 2016, Magistrate Still reminded the Applicant he had been told he had an alcohol problem ‘back in November’.[29]
[28] G2, p.77.
[29] G2, p.74.
The Applicant was questioned about his alcohol use. He conceded that alcohol played a part in some of his offending and confirmed he had not undertaken rehabilitation to address his alcohol use. He acknowledged his alcohol consumption may have been problematic in the past, but said he had learnt from past experience and now drinks infrequently.
The Applicant acknowledges he needs to address anger issues, alcohol use and domestic violence through rehabilitation. If he is released back into the community, he plans to identify and complete programs to address these issues. He said he had not done so to date because his ex-partner has access to his phone and information. With his former partner having access to his personal information, he said it is difficult to speak to the appropriate authority when he needs help. He claimed if he asked for information it goes to his partner first.
The Applicant’s mother passed away when he was age 17. In his request for revocation, he said that the passing of his father in 2016 left him with a deep sense of loss, causing emotional issues which led to problematic behaviour. He also lost his eldest brother. The Applicant believes his unresolved grief and emotions have contributed to his anger problems and now appreciates the importance of mental health treatment and seeking advice. He also attributed some of his violent offending to the treatment he received from his ex-partner and a lack of understanding of Australian law.
Having regard to the Applicant’s offending history and limited evidence of rehabilitation undertaken to date, I am not satisfied that he has taken appropriate measures to address factors contributing to his offending. While the Applicant has attributed some of his behaviour to unprocessed emotions following the passing of family members, there is no evidence of his having sought to address those issues to date.
The Applicant was taken to an incident report regarding a physical altercation between the Applicant and another detainee that occurred in immigration detention on 28 March 2024.[30] He said the incident was sparked by a disagreement with another detainee when playing music. He became agitated and picked up a pool cue. He said that other detainee hit him, and that he had responded by lightly hitting the detainee with the pool cue.
[30] G2, p.91.
A Corrective Services incident report identifies the Applicant as a combatant in a fight in a correctional centre which occurred on 22 January 2024.[31] The Applicant explained that a fight started between he and another inmate after he was spat on by another inmate.
[31] SM2, p.269.
I note both incidents occurred in the context of the Applicant having completed anger management training and cast doubt on the efficacy of the measures he has taken to avoid further offending, and his claim to be determined not to offend again in the future.
When giving evidence the Applicant sought to downplay the seriousness of his offending by stating that the victims had exaggerated their account of what took place or had ulterior motives in reporting his offences to police. He also claimed that his lack of rehabilitation was in part due to his phone being ‘hacked’ by his ex-partner. There is no evidence to support this contention. The Applicant’s failure to take responsibility for aspects of his offending and downplay his responsibility for his actions is of serious concern.
The Applicant has identified protective factors including the support of his family, his children, de facto partner, willingness to engage in rehabilitation and undertake further courses, and re-engagement with the Jehovah’s Witness church.
Having regard to the evidence, particularly the Applicant’s offending history, I am not satisfied he has a clear plan to address the causes of his offending that he has identified. Despite claiming to have learnt from his mistakes and past offending, he has not addressed his alcohol use and the relatively recent incidents in prison and immigration detention cast serious doubts on his ability to control his anger. I find the evidence indicates there is a medium risk that the Applicant may reoffend.
Protection of the Australian community – conclusion
I find there is a real risk that the Applicant may reoffend should he return to the Australian community. The harm brought by further offending of a similar nature would be serious. The primary consideration of the risk to the Australian community weighs strongly in favour of not revoking the cancellation decision.
Primary consideration 2: Family Violence committed by the non-citizen
Paragraph 4(1) of Direction 110 defines family violence as violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
Subsection 8.2(1) of Direction 110 provides that the Australian government has ‘serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia’.
Subsection 8.2(3) of the Direction specifies the following factors must be considered where relevant when considering the seriousness of family violence:
(a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
the extent to which the person accepts responsibility for their family violence related conduct;
the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the noncitizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
The Respondent has set out the Applicant’s offending which I accept satisfy the definition of family violence for the purposes of Direction 110.[32]
(a)Stalk/intimidate intend fear physical etc harm (domestic) T2 on 17 April 2015 – the Applicant threatened his partner at the time, Ms Eteauti, by stating 'I'm going to kill you and take your son', took her son into a locked room and texted her 'Your son has died. I’m gone now', while refusing to let anyone in, causing her to panic and scream.
(b)Destroy or damage property, contravene prohibition/restriction in AVO and stalk/intimidate intend fear physical etc harm (domestic)-T2 on 28 September 2015 - the Applicant threatened Ms Eteuati by saying ‘If you don’t come, I’ll cause damage to your property’. He then scratched his in-laws car and deflated the tyres.
(c)Take & drive conveyance w/o consent of owner-T2, Common assault (DV)- T2, Contravene prohibition/restriction in AVO (Domestic) (4 counts) sentenced on 9 August 2023 - the Applicant made phone calls and sent messages telling Ms Tuipala, ‘Fuck you, fuck your fella’s car. You watch, I’m going to do something about it’ which prompted her to call the police.
(d)Later that month, he also threatened to run over Ms Tuipala and shouted at her to get back in the car while throwing glass bottles at her. Later in November 2022, he continued to make similar threats to her despite being subject to a 12-month Community Correction Order and an AVO to protect Ms Tuipala from his actions.
[32] Respondent’s Statement of Facts, Issues and Contentions dated 17 January 2025 at [61].
The Applicant’s conduct involved threatening behaviour towards two separate women. The Applicant notes, and I accept, that he did not cause physical injury to either of his victims. However, the conduct would have caused both victims to be fearful and the Applicant conceded as much at the hearing.
It is of considerable concern that the Applicant continued to engage in acts of family violence after being warned by the courts. He breached multiple AVOs against his former partner and current partner, and has a history of non-compliance with such orders and bail conditions. The Applicant has expressed remorse for his offending and during the hearing he conceded the offending would have caused victims to become fearful. There is evidence that the Applicant has sought to address his anger issues through rehabilitation, but he does not appear to have undertaken rehabilitation targeting domestic violence offending, though I acknowledge he has expressed an intention to do so in the future.
I take into account that the Direction makes clear that engaging in family violence is taken very seriously by the Australian government and the community and the government’s concerns in this regard are proportionate to the seriousness of the family violence conduct. I consider that the Applicant’s family violence offending is serious and weighs heavily strongly against revocation of the cancellation decision.
Primary Consideration 3: The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has resided in Australia since he was 34 years-old and has an extensive network of family in this country.[33] The Applicant has provided statements and character references from extended family, friends, church members and others in support of his application.
[33] G2, p.94-112; Applicant’s Materials (as filed by Respondent) 24 January 2025; Support Letters filed by Applicant 2 December 2024.
Sauleone Tuipala is the Applicant’s current partner and mother of his youngest child, ZA. She gave evidence at the hearing. She has known the Applicant for three years and confirmed that his removal would have significant emotional and financial consequences for her and their daughter. Should the Applicant return to the community, he would not live with her and their daughter due to the existing AVO, but may do so in the future.
Paul Tuipala is Ms Tuipala’s adult son. In a letter dated 17 September 2023 he writes that he wishes the Applicant was his father. He says the Applicant has been a supportive father figure who enabled him to graduate.[34]
[34] G2, p.137.
Silia Eteuati is the mother of the Applicant’s two eldest children and resides in Melbourne. In a statement dated 23 April 2024 Ms Eteuati she writes she has known the Applicant since high school. She considers him to be a lovely man who is hardworking and supports his children financially and was loved by her parents.[35]
[35] G2, p.140-141.
The Applicant’s three sisters who reside in Australia have provided letters of support. Fetuao Toleafoa is a permanent resident who has known the Applicant his entire life. She expressed her support for her brother and acknowledged his commitment to family.[36] Fitopau Pulepule expresses her concern about the Applicant’s three children and her desire to have her brother remain in Australia.[37] Sesepasara Tangatauli writes on behalf of her family that she misses her brother as do his nieces and nephews. She says the Applicant’s family, particularly his three children, need him.[38] The Applicant is also close to his sisters’ families.
[36] Applicant’s Materials (as filed by Respondent) 24 January 2025, A2, p.14.
[37] Ibid, p.18.
[38] Ibid, p.28.
The Applicant’s brother-in-law Brain Toleafoa says that he wholeheartedly supports the Applicant because he is available to support his family and is known for his integrity. He writers he has a strong bond with the Applicant and is committed to emotionally and financially supporting him should he be returned to the community.[39] Faanati Pulepule is the Applicant’s brother-in-law and says the Applicant has been a wonderful brother to him and helped financially to support his sisters and their children.[40]
[39] Ibid, p.13.
[40] Ibid, p.19.
Seepa Amura is the Applicant’s mother-in-law. She writes that the Applicant is a loving and good man towards her daughter and her family. She has never seen her daughter so happy and well protected with a man as much as she is with the Applicant.[41]
[41] Ibid, p.29.
Usoalii Matagi is the Applicant’s current partner’s stepmother. She writes applicant is very loving person who was always prepared to help she and her husband with grace.[42]
[42] Ibid, p.30.
The Applicant has five uncles and aunts, 21 nieces and nephews and eight cousins in Australia. However, the residency status of those individuals as well is the nature of the Applicant’s relationship with them is unclear. A letter of support has been provided by the Applicant’s niece Sialatua Toleafoa.[43] She has known the Applicant all her life and considers him her best uncle. She has not seen him since his imprisonment and misses him. Luana Pepe Toleafoa writes the Applicant is a kind person and she misses him very much.[44]
[43] Ibid, p.11.
[44] Ibid, p.12.
The Applicant’s pastor Pastor Ramese Tupe has provided a character reference indicating the Applicant was an active attendee of the local church congregation. He is reported to have participated in church activities regularly. He also volunteered his time at the community food pantry by picking up stock and setting up food parcels.[45]
[45] Letter of support of Pastor Ramese Tupe dated 11 April 2024.
Ana Kini has known the Applicant his whole life and said he has been a positive role model for his younger siblings and always looked out for his sisters when they were growing up together. She considers him to be a good churchgoing person who is always there for his partner and children.[46]
[46] Applicant’s Materials (as filed by Respondent) 24 January 2025, A2, p.22.
Other family friends, church elders and church members attest to the Applicant’s love for his family, trustworthiness and the value of his friendship.
The extensive evidence in support of the Applicant demonstrates he has many ties to the Australian community, and he is valued by members of his family and the broader community including Australian citizens and people who have an indefinite right to stay in Australia.
Ms Tuipala currently receives financial support from her son, but I accept she is a single parent who would like to work to support her family. The Applicant’s support and assistance in raising their daughter will be of benefit to her and enable her to return to paid employment.
The Applicant’s positive contribution to the Australian community includes his paid employment and active participation of his local church congregation and volunteer work at the Community Food pantry.
Although this primary consideration is afforded less weight on account of the Applicant’s offending commencing soon after his arrival in Australia, it weighs strongly in favour of revoking the mandatory cancellation of his visa.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has three minor children in Australia. MN is 12 years-old. TI is 5 years old and ZA is one year old. He also identified two minor nephews and two minor nieces who reside in Australia and would be affected by this decision.[47]
[47] Ibid, p.23-24; G2, p.94-112; G2, p.140-141.
MN and TI have resided in Melbourne since 2018. The Applicant lived with the children until he left Melbourne in 2019, and the children continue to reside in Melbourne with their mother, Ms Eteuati.[48] The Applicant gave evidence of having a close relationship with both children and maintaining regular contact with them. Prior to his imprisonment, the Applicant and the children regularly spent time together in both Sydney and Melbourne.
[48] G6, p.212-214.
Ms Eteuati has provided a character reference dated 23 April 2024.[49] She writes that the Applicant is a hardworking and kind family oriented person who loves his children. Ms Eteuati also says the Applicant sends money and presents to the children almost every week and supports them financially by paying child support. The children regularly ask her to take time off work so they can visit the Applicant in Sydney. The Applicant’s son MN has written a note on behalf of he and his sister stating that they love and miss their father.[50]
[49] G2, p.140-141.
[50] G2, p.126.
At the hearing the Applicant gave evidence that Ms Eteuati does not look after their children or care about them. He also claimed that she has attempted to prevent him from having contact with the children, but conceded she recently called him so he could speak to MN and TI.
The Applicant’s youngest child ZA was born while the Applicant was serving his 12-month sentence of imprisonment, but has visited him in immigration detention. The Applicant acknowledged that while the AVO remains in place his ability to play a positive role in her life may be limited. However, he will provide for her financially and ensure that she receives a good education. In the future, he intends to play a fatherly role and set a good example to the family. The Applicant said that he believes in the power of prayer and with the support of church members he will make sure that he does not expose ZA to family violence.
I accept that the Applicant has a strong relationship with his two eldest children. However, as they live in separate cities, he would not live with them should he be released into the community. I do not accept the Applicant’s evidence that their mother does not care for them as there is no documentary evidence to support his claim. Further, her reported behaviour is inconsistent with his claim to have maintained regular contact with the children.
Although he has had limited contact with ZA to date, the Applicant is expected to play a positive role in her life in the future. All three of his children are currently cared for by a parent who fulfills the parental role.
Regarding the Applicant’s minor nieces and nephews, the Applicant claims to play a unique role as uncle and of having provided them with support, guidance and encouragement.[51] Despite the scarcity of detail, I accept that it is in the best interests of the Applicant’s nieces and nephews that the visa cancellation be revoked.
[51] G2, p.101.
Overall, I accept that the Applicant has a relationship with his children and provides financial and other support to them. It is in the interests of all the Applicant’s children that he remain in Australia so they are able to maintain direct contact with him. This consideration weighs very heavily in favour of revoking the mandatory cancellation decision.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather the Tribunal must give effect to the ‘norm’ stipulated in the Direction.
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.
The Applicant has failed to obey the law and his criminal offending is very serious and he would be expected to be removed from the community. His offending includes acts of family violence committed against a woman, which the Australian community considers particularly serious pursuant to paragraph 8.5(2) of Direction 110.
Having regard to the Direction and the nature of his offending, this consideration weighs heavily against revocation.
OTHER RELEVANT CONSIDERATIONS
Legal consequence of decision under section 501 or 501CA
Paragraph 9.1 of Direction 110 states that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Paragraph 9.1(2) of the Direction defines a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Paragraph 9.1.2(2) of the Direction provides that where it is open to a non-citizen to apply for a protection visa, it is not necessary to consider non-refoulement obligations to the same level of detail as those type of issues are considered in a protection visa application. However, I am required to ‘read, identify, understand and evaluate’ the representations.[52]
[52] See Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 at [24]-[25].
The Applicant does not contend that non-refoulement obligations arise and there is no evidence to indicate otherwise. This consideration weighs neither for nor against revoking the cancellation decision.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
Should he be removed to New Zealand the Applicant will be returning to the country he lived in between the ages of 27 and 35 years old. The Applicant says he would be returning to a country where he no longer has family, friends or a social support network. He says removing him from his family and support network would have a severe effect on his mental health.
The Applicant’s connections are in Australia, and he expects he will be able to obtain employment in this country. Should he obtain employment in New Zealand, he expects to be paid less which will make it more difficult to support his family.
At 44 years old, the Applicant is a relatively young man and in generally good health, although he suffers from gout, which he said motivates him to abstain from drinking alcohol. I accept that being separated from his family and support network in Australia will be emotionally stressful for the Applicant, he may also face some practical impediments establishing himself. Should he require treatment for gout or seek to treatment for his mental health or alcohol dependence, he would have access to the same support available to other citizens of New Zealand. The standards of employment, health care and social support in New Zealand he would have access to are comparable to what is available in Australia.
I accept that the Applicant would likely experience some stress reestablishing himself in New Zealand and would be socially isolated, at least initially. This consideration is afforded moderate weight in favour of revocation.
CONCLUSION
In balancing the primary and other considerations, the protection of the Australian community weighs against revoking the cancellation of the Applicant’s visa and is afforded significant weight given the escalating seriousness of his offending and little evidence of rehabilitation. The expectations of the Australia community weigh heavily against revocation. The primary consideration of family violence committed by the non-citizen weighs very strongly against revoking the cancellation decision and is afforded moderate weight.
It is in the best interests of the Applicant’s minor children and to a lesser extent his nieces and nephews that the cancellation is revoked. His own children are young, and it will be challenging for him to maintain a relationship with them from New Zealand and this consideration weighs very heavily in favour of revoking the cancellation decision. The Applicant has extensive and meaningful family and other connections in the community and the strength, nature and duration of the ties to Australia are afforded significant weight in favour of revoking the cancellation decision. The legal consequences of the decision weigh neutrally. The impediments the Applicant is expected to face should he return to New Zealand are not insurmountable, but this consideration weighs moderately in favour of revocation given the Applicant’s lack of social support in that country.
On balance, I find that there is not another reason for the cancellation of the Applicant’s visa to be revoked.
DECISION
For the reasons outlined above, the reviewable decision is affirmed.
Date(s) of hearing: 30 and 31 January 2025 Applicant: In-person Solicitors for the Respondent: Rhonda Lee, Clayton Utz
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