Mesui and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2025] ARTA 1987

Mesui and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2025] ARTA 1987 (3 October 2025)

Applicant/s:  Siaosi Mesui

Respondent:  Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Tribunal Number:                2025/4341

Tribunal:Senior Member A Clues

Place:Hobart

Date:3 October 2025  

Decision:The Tribunal affirms the decision under review.

A Clues

Senior Member A Clues

Catchwords

MIGRATION – Visa refusal under s 501(1) of the Migration Act 1958 (Cth) – citizen of Tonga – Bridging E (Class WE) (subclass 050) visa – family violence offending – failure to pass character test under s 501(6)(d)(i) – whether discretion to refuse to grant visa should be exercised – Ministerial Direction 110 applied – reviewable decision affirmed.

Legislation

Migration Act 1958 (Cth)

Migration Amendment (Character and General Visa Cancellation)  Act 2014 (Cth)

Cases
Steel and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46

EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536

Minister for Immigration and Border Protection v Sabharwal  [2018] FCAFC160
BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116; (2023) 298 FCR 516
FYBR v Minister for Home Affairs (2019) 272 FCR 454

Secondary Materials

Ministerial Direction 110 – Visa refusal and cancellation under  section 501 and revocation of a mandatory cancellation of a visa under section 501CA 

Statement of Reasons

INTRODUCTION

1. The applicant is a 34-year-old citizen of Tonga. He seeks a review of the respondent’s decision to refuse a Bridging E (Class WE) visa under s 501(1) of the Migration Act 1958 (Cth) (The Act). The reviewable decision dated 10 July 2025 was made on the basis that the applicant does not pass the character test according to s 501(6)(d)(i) of the Act.[1]

   [1] G-documents pp 19-33.

   LEGISLATIVE FRAMEWORK

2. The following is a summary of the legislative framework that is relevant to this case.[2]

   [2] Steel and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 175; [4]-[18].

3. Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

4. The character test is defined by s 501(6). Relevantly, s 501(6)(d)(i) provides that a person does not pass the character test if, in the event the person was allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.

5. If a person does not pass the character test, the Tribunal must determine whether to exercise the discretion under s 501(1) to refuse to grant a visa.

   The Direction

6. Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. Section 499(2A) provides that a person or body must comply with a direction under s 499(1).

7. Such a direction has been given under s 499 of the Act, being Ministerial Direction 110 – Visa refusal and cancellation under  section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).

8. Paragraph 5.1 of the Direction contains the Objectives. Paragraph 5.1(1) provides that the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test is liable for refusal of a visa or cancellation of their visa.

9. Section 1 of Annex A of the Direction provides an overview of the character test insofar as it relates to discretionary visa cancellation or refusal. Paragraphs (2) and (3) of Section 1 of Annex A relevantly provide:

   (2)Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision-maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.

   (3) Section 501(6) of the Act prescribes the circumstances in which a person does not pass the character test. A person need only be found to not pass one ground, in order to not pass the character test.

10. Section 2 of Annex A of the Direction provides guidance in relation to the application of the character test. In regard to s 501(6)(d) of the Act, it provides as follows:

    6. Risk in regard to future conduct (section 501(6)(d))

    (1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.

    (2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.

    (3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

    6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))

    (1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.

    (2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.

11. Paragraph 5.1(2) of the Direction provides that under s 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.

12. Paragraph 5.2 of the Direction contains principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501. The factors (to the extent they are relevant in a particular case) that must be considered in making a decision under s 501 of the Act are identified in Part 2 of the Direction.

13. The principles as set out under paragraph 5.2 are as follows:

    (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 non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (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.

14. Paragraph 6 of the Direction provides that informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in paragraphs 8 and 9 of the direction where they are relevant to the decision.

15. Paragraph 7 of the Direction deals with taking the relevant considerations into account. It provides as follows:

    (1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2) The primary consideration at 8.1 below (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.

    (3) One or more primary considerations may outweigh other primary considerations.

16. Paragraph 8 of the Direction states that the following are primary considerations:

    (1) protection of the Australian community from criminal or other serious conduct;

    (2) whether the conduct engaged in constituted family violence;

    (3) the strength, nature and duration of ties to Australia;

    (4) the best interests of minor children in Australia;

    (5) expectations of the Australian community.

17. Paragraph 9(1) of the Direction provides that in making a decision under ss 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with their provisions. Those considerations include (but are not limited to):

18. a) legal consequences of the decision;

    b) extent of impediments if removed;

    c) impact on Australian business interests.

    Tribunal proceedings

19. The reviewable decision was made on 10 July 2025, the application for review was made on 17 July 2025 and was therefore within the 9-day statutory time limit under s 500(6B) of the Act.

20. The Tribunal hearing was conducted by video on 22 and 23 September 2025. The applicant is currently in detention at the Villawood Detention Centre, he was represented by Ms A Tuionuku of the Twinnies Foundation, and the respondent was represented by Mr S Valliappan of the Australian Government Solicitor. The applicant gave evidence and was cross examined. He was provided with the warning against self-incrimination at the relevant time during his cross-examination. The respondent summonsed Ms M Cremona (the applicant’s partner) and Mr M Mesui (the applicant’s uncle), both witnesses gave evidence and were cross-examined. The Tribunal received into evidence the following materials:

    (a)G documents, comprising 247 pages.

    (b)Respondent’s tender bundle, comprising 104 pages.

    (c)Respondent’s Statement of Facts Issues and Circumstances (SOFIC), dated 9 September 2025, comprising 20 pages.

    (d)Statement of applicant, undated, comprising 3 pages.

    (e)Witness statement of applicant, undated, comprising 2 pages.

    (f)Witness statement of A Mesui (applicant’s father) dated 9 August 2025, comprising two pages.

    (g)Witness statement of M Cremona (applicant’s partner) undated, comprising 2 pages.

    BACKGROUND

21. On 11 February 2020, the applicant arrived in Australia as the holder of a Visa (Class FA) (subclass 600) visa which was valid until 4 February 2021. After that date, he became an unlawful non-citizen (UNC).

22. Between 5 May 2021 and 30 November 2022, the applicant had a series of bridging E visas. During that time there were periods during which he was a UNC.[3] He has been a UNC since 1 December 2022.[4]

    [3] Respondent’s SOFIC p1 [6].

    [4] G-documents p194.

23. As a result of offending on 9 June 2024, the applicant was arrested and taken into custody, where he remained until 29 October 2024. On that date he was released from custody, detained by Australian Border Force, and transferred to Villawood Detention Centre pursuant to s 189 of the Act.[5]

    [5] Respondent’s SOFIC p4 [17].

24. On 8 November 2024, the applicant lodged an application for a partner (Class BS)(subclass 820) visa sponsored by Maria Cremona.[6]

    [6] G-documents pp 201-202.

25. On 23 January 2025, the applicant lodged an application for a Bridging E visa.[7] On 29 January 2025, a decision was made to refuse to grant that visa on the basis that the delegate of the Minister was not satisfied that the applicant would abide by conditions.[8] On 14 February 2025, the Tribunal set aside the delegate’s decision and remitted the matter for reconsideration in accordance with the order that the applicant met the criteria for the grant of the visa and that if the visa was to be granted, conditions should be imposed including security of $10,000 for compliance with the conditions.[9] On 9 May 2025, the Department of Home Affairs issued the applicant with a notice of intention to consider refusal of the Bridging E visa application on character grounds under s 501(1) of the Act.[10] In response, the applicant submitted documents including personal statements, character references, a personal circumstances form, a relationship registration receipt, combined property receipts, death benefit nomination and visitor approvals for prison and detention.[11] As stated above, on 10 July 2025 the reviewable decision was made. Pursuant to s501F of the Act, as a result of the reviewable decision being made the applicant’s partner visa application was also taken to have been refused.[12]

    [7] G-documents pp210-217.

    [8] G-documents p193.

    [9] G-documents pp 192-200.

    [10] Respondent’s SOFIC p5 [22].

    [11] Respondent’s SOFIC pp 5-6 [23].

    [12] Respondent’s SOFIC p6 [25].

    ISSUES TO BE DETERMINED BY THE TRIBUNAL

26. The issues that need to be determined by the Tribunal are:

    i)Whether the Applicant passes the character test as defined by s 501(6)(d)(i) of the Act; and

    ii)If the Tribunal is satisfied that the Applicant does not pass the character test, whether the discretion to refuse to grant the visa be exercised, after applying the relevant primary and other considerations in the Direction to the specific circumstances of the Applicant’s case.

    CONSIDERATION

27. The first issue is whether the applicant passes the character test as set out in s 501(6)(d)(i). In this matter the applicant does not pass the character test, if in the event the applicant were allowed to remain in Australia, there is a risk that he would engage in criminal conduct in Australia. The respondent submits that s 501(6)(d)(i) previously required there to be a ‘significant risk’ of future criminal conduct. However, the word significant was removed by Item 11, Schedule 1 of the Migration Amendment (Character and General Visa Cancellation)  Act 2014 (Cth). The amendment was explained in the explanatory memorandum as follows:

    The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d)(i) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.[13]

    [13] Respondent’s SOFIC p7 [32].

28. The respondent referred to two cases relevant to the character test referred to in s 501(6)(d)(i). The first case is Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46, in which Mortimer J relevantly explained at [6] the following:

    … [T]he legislative scheme imposes in effect an onus on the visa holder or visa applicant to satisfy the repository of the power in s 501(1) that they pass the character test. Here it was agreed the applicable part of the character test was subs (6)(d)(i). In other words, it was not in dispute that unless the appellant could satisfy the repository of the s 501(1) power that his circumstances were outside subs (6)(d)(i), then the precondition to the refusal and cancellation power in s 501(1) arising was met.

29. The second case is EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536, in which Perry J noted at [181]–[182] that:

    First, at [22] the Minister correctly identified the task in saying that:

    In assessing the likelihood of [Mr EPU’s] reoffending in the future, I have considered factors that may assist to explain [Mr EPU’s] past conduct, as well as his more recent conduct, remorse and rehabilitation.

    In so stating, the Minister correctly understood that, while the criterion is the risk of “criminal” conduct (i.e., “reoffending”), a probabilistic assessment is capable of admitting of a range of inputs which fall short of criminality but may still rationally bear upon the assessment of whether a person “might” engage in criminal conduct in the future … An example is where the risk that someone might take up drinking again may, in a given case, be probative of a risk of future criminal conduct by reason of a historical link between past offending conduct by the person and alcohol consumption … Remorse and rehabilitation are also obvious factors which may bear upon such an assessment.

30. If the Tribunal is satisfied that there is a risk that the applicant would engage in criminal conduct in Australia it has a discretion to refuse to grant a visa to the applicant.[14] In relation to the Tribunal’s discretion under s 501(1) the respondent submits that the Full Court of the Federal Court of Australia has relevantly set out the following principles:[15]

    ·First, the decision-maker is required, by force of s 499(2A), to comply with a Ministerial direction made under s 499(1); however, the direction cannot validly operate to fetter the discretion conferred.[16]

    ·Secondly, the Ministerial direction does not purport to limit the considerations to which the decision-maker may have regard, and only requires the decision-maker to take into account considerations where relevant to a decision.[17]

    ·Thirdly, the Ministerial direction provides no more than a guidance and cannot compel a repository of a power to reach a particular outcome, or compel specific weight to be given if, in the circumstances of the case, the decision maker’s view is that different weight should be given to a matter.[18]

    [14] Minister for Immigration and Border Protection v Sabharwal  [2018] FCAFC160 at [2]

    [15] Respondent’s SOFIC p8 [38]

    [16] BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14 at [87] (Rangiah, Derrington and Rofe JJ).

    [17] Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116; (2023) 298 FCR 516 at [94] (Logan, Rangiah and Goodman JJ).

    [18] Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46

    The applicant’s criminal conduct

1. The following is a summary of the disclosable court outcomes recorded against the applicant.[19]

   [19] G-documents p 34.

Court date	Offence	Result
25 June 2024	Assault occasioning actual bodily harm (DV) -T2	Community correction order: 2 years commencing 25/6/24 concluding 24/6/26. Anger management and DV counselling as deemed necessary Supervision: two years commencing 25/6/24 concluding 24/6/2026 supervised by community correction service
29 October 2024	Destroy or damage property (DV) Contravene prohibition/restriction in AVO (domestic)	Community correction order: 12 months commencing 29/10/24 concluding 28/10/25, report within 7 days, upon release from custody. Supervision: 12 months commencing 29/10/24 concluding 28/10/25 supervised by community corrections service.

1. On 30 March 2024 the applicant committed the first offence of assault occasioning actual bodily harm. After that incident, an Apprehended Domestic Violence Order (ADVO) was finalised on 14 May 2024. The order was put in place for two years until 13 May 2026. The orders were made to protect Ms A. The applicant was advised in the ADVO that he “must follow these  orders even if Ms A doesn’t want you to or tells you that you don’t need to. If you attempt to do any of the things below, it will still be a criminal offence called a breach.”

   The following orders were made:

   1)You must not do any of the following to Ms A or anyone she has a domestic relationship with:

   A.    assault or threaten her

   B.    stalk, harass or intimidate her, and

   C.   intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of Ms A.

2. Whilst the applicant was on bail in respect of the offending on 30 March 2024, two further incidents occurred, involving Ms A. Those incidents occurred on or about 31 May 2024 and 9 June 2024. On 10 June 2024 the applicant was arrested and taken into custody. Bail was refused. The position of the Police was that the applicant “has shown a blatant disregard for his bail condition and the ADVO in place. Police do not believe that either Order provide the Victim with an adequate level of protection and believe the refusal of bail is the only option to ensure the safety of the Victim and the community” [20]

   [20] RTB p47.

3. On 25 June 2024,the ADVO was varied to include the following orders:

   2)You must not approach Ms A or contact her in any way, unless the contact is through a lawyer.

   3)You must not try to find Ms A except as ordered by a court.

   4)You must not possess any firearms or prohibited weapons.

4. On 25 June 2024 the court dealt with the applicant’s offending that occurred on 30 March 2024. A charge of common assault  (DV) -T2 was withdrawn[21] and the facts that were put before the court are summarised as follows:[22]

   ·The applicant and the victim [Ms A] had been in an intimate relationship for about 8 months. At about 2:30pm on 30 March 2024, the victim and applicant went to a hotel and booked a room. The pair consumed some alcoholic beverages at the pub and afterwards went to sleep. They woke up and the victim wanted to go back to the pub, the applicant did not. An argument ensued.

   ·The applicant grabbed the victim’s face with both hands and used his right fist to punch her in the head about 5 times. The victim tried to cover her face with her hands. The applicant then used his elbow to hit the victim in the face. The victim received a cut to her nose and was bleeding.

   ·The applicant escorted the victim to their room, and police were contacted, who observed multiple towels with dried blood. The applicant was arrested and declined an interview. The victim hugged the applicant and was upset when he was taken away and said that she wanted to maintain a relationship with him.

   [21] RTB p2.

   [22] Respondent’s SOFIC p2 [9].

5. In respect of the incident that occurred on 31 May 2024 the applicant was charged with the following offences which were ultimately withdrawn:

   a. 3 x Common assault (DV) – T2,

   b. Stalk/intimidate intend fear physical etc harm (domestic) – T2,

   c. Assault occasioning actual bodily harm (DV) – T2,

   d. 2 x Contravene prohibition/restriction in ADVO (domestic),

   e. Armed with intention to commit indictable offence – T1, and

   f. 2 x Intentionally choke etc person without consent (DV) – T1.[23]

   [23] RTB pp 3-4

6. On 29 October 2024 the court dealt with the applicant’s offending that occurred on 9 June 2024. On that date the applicant was convicted of contravene Prohibition/Restriction in ADVO (Domestic) and Destroy or Damage Property (DV).

7. The agreed facts underlying the convictions are set out below:[24]

   ·The applicant had been in an intimate relationship with the victim, Ms A, for around 10 months. There was at the time an enforceable ADVO in place which prohibited the applicant from assaulting or threatening; stalking, harassing, or intimidating; and intentionally or recklessly destroying or damaging any property that belongs to or is in the victim’s possession.

   ·At around 5:00am on Sunday, 9 June 2024, the applicant and victim were together in a hotel room, when the victim accepted a telephone call from a male friend causing the applicant to become jealous. The applicant then grabbed the victim’s phone, snapped it in half, and the threw it on the ground where it began to smoke and activated a fire alarm.

   ·A short time later, the Fire Brigade and Ambulance Service attended the hotel where the applicant fled. The victim used another patron’s phone to contact a friend to collect her. The victim then attended a police station and provided a statement. The applicant attended a police station the following night but declined an interview with officers.

   [24] RTB pp 51-53 and Respondent’s SOFIC p2-3 [11].

8. On 29 October 2024, the applicant was released from custody but detained in immigration intention and has remained there since.

   The applicant’s evidence

9. At the hearing the applicant gave evidence through the interpreter that:

   ·Since he has been in custody and attention his life has changed and he will not do anything like the offending he did again.

   ·He has been in prison and Villawood detention centre since June 2024. Whilst in detention he joined a religious group to try and better his life. He is doing Bible studies on Tuesdays, Thursdays and Sundays.

   ·He has made a promise to himself that he will not go through this again. He will not go back to prison or detention. He will obey the law of the land and the Australian authorities.

   ·He promises to make these changes, and he wants to fulfil his plans to have a better life with his partner, Maria Cremona, whom he loves.

   ·He commenced his relationship with Ms Cremona in March 2023. At the time of his offending, he was also in a relationship with the victim, Ms A. He referred to Ms A as his ex-girlfriend.

   ·At the time of his offending on 30 March 2024, he had been in a relationship with Ms A for about eight months. He initially denied this but subsequently agreed when he was referred to the police facts relating to the offending on that date.[25] At the time of his offending on 9 June 2024, he had been in an intimate relationship for around 10 months.[26]

   [25] RTB pp 22-23.

   [26] RTB p 45.

   ·At the time of his offending, he was also in a relationship and living with Ms Cremona. He agreed that although he was not living with Ms A or married to her, he was in an intimate relationship with her.

   ·With respect to the offending on 30 March 2024, he said that he had been drinking at the pub with Ms A and they were both drunk. They went upstairs to a room they booked at the hotel. Ms A wanted to return to the pub. They started arguing. He told her to get her stuff and go home. She started saying bad things about his mother and his sister and he got angry. He punched her and when he saw she was bleeding he took her back up to their room and cleaned her up, during this time the police came.

   ·With respect to the offending on 9 June 2024 he agreed that he broke Ms A’s phone in half. He said he purchased the phone for her. She was trying to make him angry. She received a phone call from another man . She told the man to call her to make him angry. She was trying to get him arrested. He took the phone that he had purchased and threw it on the ground and broke it.

   ·He knew he was in a relationship with Ms C but at the time she was staying with her mother because she was sick.

   ·He knew he was subject to an ADVO in relation to Ms A, but he still wanted to see her. He ended up following her to the pub. He said that he had bought her clothes and a phone and that she was trying to get him angry by showing him photos of different guys. He felt like she was really trying to make him angry so that he would touch her, and the police would take him away.

   ·He was asked questions about what occurred on 31 May 2024. The warning against self-incrimination was given. He agreed that Ms A attended his residence. He denied that he got into an argument with her because she made plans to meet someone else. He denied that he assaulted her by putting his hands around her neck. He denied that he attacked her with a knife.

   ·He said that Ms Cremona is aware of his offending. In relation to the offending on 30 March 2024 he explained to Ms Cremona that he ‘touched’ Ms A because of what she said about his mother and sister. In relation to breaking Ms A’s phone on 9 June 2024, he told Ms Cremona that Ms A asked him to buy the phone, she was not appreciative of that, and she was trying to make him angry. He said that Ms Cremona was not aware that he was in a hotel room together with Ms A on both dates. She is aware of that now.

   ·He agreed that alcohol was a factor in his offending on 30 March 2024 and 9 June 2024. He accepted that he was drunk on both occasions. He agreed that he had not done any formal rehabilitation programs in prison or in detention in relation to his alcohol use or anger management.

   ·He was referred to one of his written statements in he said that whilst in custody he had actively participated in rehabilitation programs, and that he completed an Anger Management program at Parklea prison.[27] He agreed that was not accurate. He said that whilst at Parklea, a Pacific Island group visited and shared their testimonies about the effects of alcohol and drugs. He also agreed that whilst in detention he did not attend assessments arranged for him in relation to his drug and alcohol consumption.[28] He also agreed that in his ‘Intake Screening Questionnaire’, he answered “No” to the question about whether he thought that alcohol contributed to his arrest.[29] He said he did not understand that question at the time.

   [27] Statement of applicant (undated)  p 1.

   [28] RTB pp 87-89.

   [29] RTB 82.

   ·He was referred to another question in his ‘Intake Screening Questionnaire’ in which he was asked whether in the last 12 months there had been any major changes or incidents in his life. His response to that was “my ex-girlfriend was threatening me with the avo”. He was asked whether he blamed the victim for his actions. He said he was drunk and angry. Further that she was trying to make him angry and touch her because she knew there was an ADVO. He said that she asked him to buy her a phone and clothes. She told him that if he did not buy them, she would tell the police about the ADVO. He said she was trying to provoke him to touch her to breach the ADVO. He went on to say that he did feel she was to blame. She made false allegations, and she was trying to get him into trouble. However, he was sorry for punching her and breaking her phone, but he has now served his time for what he has done.

   ·He said that he had not undergone any formal counselling or programs to address his anger and alcohol problems because he has not heard of any programs he could attend in relation to those issues whilst he has been in prison and detention since June 2024.

   ·In the applicant’s written statements, he expresses sincere remorse for the way he handled a past personal situation that has affected his immigration status. He accepts full responsibility for his actions and the impact they have had on others. He is sorry for the decisions he made. He cannot undo the past, but he has taken the time to reflect deeply and honestly while in detention.[30]

   [30] G-documents p70 and Witness Statement of applicant (undated) p 1.

   Ms Cremona’s evidence

   ·Ms Cremona gave evidence that she was in a relationship with the applicant and plans to remain in that relationship in the future. She said they were dedicated to each other. The applicant was a good person, and his offending was out of character. The applicant is hard-working, a dedicated partner and a dedicated son. He is a good person deep down and it would cause great hardship to him, herself and his family if he had to return to Tonga. He is remorseful for what he has done. He told her what he has done and has not tried to hide his mistakes. He deserves a second chance to show he can live a law-abiding life in Australia, and she can help and guide him to do this. They want to look forward and move on and create a better life for him, his family, and his son in Tonga.

   ·At the time of the applicant’s offending on 30 March 2024 and 9 June 2024, she was at her mother’s home. In relation to his offending in March 2024 the applicant told her that he met up with his ex-girlfriend at a hotel. They spent time together and got drunk. Under the influence of alcohol, he hit her multiple times. They have talked about this offending, and she told him he should have walked away, and he should not have laid hands on Ms A. In relation to his offending in June 2024, he told her that his ex-girlfriend had visited him at home, and she was not happy that he had broken up with her, but she left on her own and was happy. They met up later and went to a hotel room together. He said that Ms A had photos of him with his shirt off and that is disrespectful in the Tongan community. She still had those photos on her phone and that is why he snapped the phone in half.

   ·With respect to their relationship at the time of his offending she said that she would not commit 100% to their relationship because there is a significant age difference between them. Her ex-husband had cheated on her and she was reluctant to commit to the applicant and therefore he was uncertain about whether she was going to leave him or not. She was not fully committed to the relationship as the age difference was a big factor for her. The applicant, who is 34 years old, has now met her two adult sons (almost 34 and 36  years old) and they reacted well to their mother being in a relationship with a much younger partner. She now accepts that she can have a relationship with him. She said the applicant was with Ms A  because she was not fully committed to the relationship. At the time, both of them made mistakes and both were at fault.

   ·She said that they currently speak 3 to 4 times per day, he texts her morning and night and she visits him twice a week.

   Mr Mahe Mesui’s evidence

   ·Mr M Mesui is the applicant’s uncle. The applicant was residing with him at the time of his offending. He said that the applicant came to Australia as part of the seasonal workers program. The applicant did not work in Tonga before he came to Australia. His siblings in Tonga do not work. They rely upon their father’s (his brother’s) income. When the applicant was working, they also relied on his income.

   ·He has not visited the applicant in prison or detention that he is in contact with the applicant maybe once a month via messaging or on Facebook.

   ·He has observed the applicant and Ms Cremona together and he believes they are in a genuine and loving relationship.

   ·He was unaware of the applicant’s offending until the police turned up at his home. The applicant did not provide him with details of what he did. He now knows what the applicant did, he told him it was bad, and that assault was not allowed in Australia. He did not know why the applicant offended but thought it must have been something to do with the girl he was with. He does not know her at all. She did come to their home once and he told her to leave because of the ADVO and he told her not to come back again.

   Character references

10. The applicant has submitted character references from his father, Ms Cremona’s sons and her mother. Those references mainly attest to the genuineness of the relationship between the applicant and Ms Cremona. The applicant’s father does refer to the applicant’s offending but does not state that he is aware of the exact nature and circumstances of that offending. He says:

    Unfortunately, cultural differences and his upbringing in Tonga have influenced him deeply. Life there is simpler and more sheltered, with strong family and religious orientation. This has sometimes led to naivety, and a lack of understanding, confidence, or experience when faced with situations outside that environment.

    I have spoken to [the applicant] at length about his past. I know he is sincerely sorry for the way he handled the situation.

    The respondent’s position

11. The respondent contends that there is more than a minimal or remote risk that the applicant would engage in criminal conduct if released into the community on a bridging visa and therefore he does not pass the character test under s 501(6)(d)(i). The respondent contends that the applicant, at the very least, presents a low to moderate risk of reoffending. The respondent submits that this is due to a number of factors including:[31]

    [31] Respondent’s SOFIC p11 [49] and p 13 [59]

    a.The offending arose from the applicant’s anger, jealousy and issues of control.

    b.The applicant’s offending was repeated and escalated in seriousness.

    c.The applicant’s second set of offending occurred while he was on bail and the subject of an ADVO.

    d.The applicant has not been free in the community since 10 June 2024.

    e.The applicant is seeking to be released from immigration detention for the purposes of maintaining a further relationship and in that setting there will be a risk of further acts of domestic violence.

    f.There is insufficient evidence demonstrating that the applicant accepts responsibility for his actions, understands the impacts of his actions, or made any genuine  efforts to address his behaviour.

    g.There is no evidence that the applicant has completed any rehabilitation or addressed any of the relevant criminogenic factors.

    h.The opportunity to offend in the same manner is likely to arise in the absence of any skills and coping mechanisms to address the issues which led to his previous domestic violence offending.

    i.The applicant has not shown that he has undergone any rehabilitation to establish that he has insight and coping mechanisms to address the issues and risk factors which gave rise to his offending.

    The applicant’s position

12. The applicant contends that  he has “done his time” in relation to his convictions and that the charges against him that were subsequently withdrawn, should not be taken into consideration by the Tribunal. Further, whilst the applicant has not done any formal rehabilitation courses in relation to alcohol use and anger management, the Tribunal should accept his evidence that he was not made aware of any courses that he could take part in whilst he has been in custody and detention since June 2024. In the absence of formal courses being made available to the applicant, he and three other Pacific Islanders, have formed their own platform to address their issues based on religious and cultural grounds. Whilst these grounds may have little standing in western culture they have significant bearing in the Tongan context. Whilst the applicant has been in prison and detention there has been no report of any concerns about his character or behaviour. It is not relevant for the respondent to submit that the applicant’s degree of rehabilitation has not been tested in the community. He needs to be given a chance to prove that he has changed. The applicant is remorseful and whilst he asserts some blame to the victim, he has also taken responsibility for his part in the offences that he has been convicted of and agrees that he should not have done what he did. Any issues of risk that he poses to the community are mitigated by his strong ties to his partner and family.

    The analysis

1. The evidence the applicant gave in relation to the criminal charges against him and his convictions is concerning. The applicant continues to harbour victim blaming attitudes. In his evidence he said that he assaulted Ms A on 30 March 2024, by punching her in the head area causing her nose to bleed because she said things about his mother and sister that made him angry. He said that on 9 June 2024, he smashed the victim’s phone in half because he bought the phone and clothes for her, and she was not grateful. She was showing him photos of other men and she told another man to call her to make him angry so that he would ‘touch her’ and the police would take him away. He said that he felt Ms A was to blame for his offending because she made false allegations against him and was trying to get him into trouble.

2. The applicant denied that he committed any domestic offending on or about 31 May 2024. He was provided with a warning against self-incrimination with respect to the questions about events that occurred on that date. He was asked whether Ms A attended his residence, he agreed that she did. The evidence from Mr B Lafaitele, who resided with the applicant was that on 1 June 2024, he ‘heard a slight commotion coming from their bedroom’, he ‘knocked on the door to see if everything was ok’. Ms A ‘answered the door and said everything was fine.’ He told the applicant to ask Ms A to leave, ‘a verbal altercation broke out. The argument was regarding family members disliking her’. He said, ‘the argument went on for a while, [Ms A] left in a calm way and did not appear to be in any kind of distress or displaying any physical injuries and or did not make it known to anyone that she was attacked physically’.[32] The applicant denied assaulting or attacking Ms A  on or about 31 May 2024 or 1 June 2024. In his application for review to the Tribunal, the applicant says that the charges against him were dismissed because Ms A did not turn up for the hearing and the police had no evidence against him.[33] As a result of the charges against the applicant were withdrawn and no convictions made, the only finding the Tribunal makes with respect to the charges arising from the at this time is that at a minimum, the applicant was in breach of the ADVO and there was some sort of domestic violence incident/s involving a ‘commotion’ and a ‘verbal altercation’.

   [32] G-documents p 79.

   [33] G-documents p 10.

3. The applicant does not take responsibility for any of his acts of domestic violence. It is the Tribunal’s view the applicant demonstrated a lack of remorse and insight into his offending behaviour.

4. With respect to the offending on 30 March 2024, when the applicant punched Ms A in the face on several occasions to the point where she was bleeding, the Tribunal regards this as very serious conduct. This conduct was aggravated by the fact that the applicant was intoxicated at the time, and he continues to blame the victim for his behaviour. After this incident, an ADVO was put in place. The ADVO clearly states that the applicant must follow the orders even if Ms A does not want him to or tells him that he doesn’t need to. He was ordered not to assault or threaten her, stalk, harass or intimidate her and intentionally or recklessly destroy or damage any property that belongs to her or is in her possession. He breached this ADVO on 9 June 2024, he also destroyed her phone. Once again, his conduct was aggravated by the fact that he was intoxicated, and he blames the victim for his behaviour. Further at the time of all offending the applicant was purportedly in a committed relationship with Ms Cremona.[34] A relationship that was ‘built on mutual trust, support and shared responsibilities’.[35] The Tribunal finds that it was not a committed  relationship built on mutual trust and support. The applicant gave evidence that he was unsure about the status of his relationship with Ms Cremona because she continued to be in contact with her boyfriend in America. He did not tell Ms Cremona that he was in a relationship with Ms A, or that he had booked a hotel room with Ms A on the nights of 30 March 2024 or 9 June 2024. The applicant said he only realised he was in love with Ms Cremona whilst he has been in detention. In cross examination counsel for the respondent put to the applicant that it was convenient for him to be in a relationship now with Ms Cremona given his immigration status and that being in that relationship may help him stay in Australia, the applicant agreed. However, he also said that the relationship was genuine. The Tribunal agrees that it is convenient for the applicant to be in a relationship now with Ms Cremona. He was not in a genuine relationship with her at the time of his offending and at the time of his arrest on 10 June 2024. He has been in custody or detention since that date.

   [34]Witness Statement of S Mesui (undated)  p 1.

   [35] G-documents p 71.

5. The applicant gave evidence that he has been welcomed into Ms Cremona’s family with warmth and kindness. He said that he has a close bond with her sons and even though they are a similar age to him, he feels like they are his children. He said they call him ‘brother’ and ‘Dad’ and that he calls them ‘my son’. However, he was unable to tell the Tribunal their names. He said that in the three years he had been with Ms Cremona he had not learned how to pronounce their names. He said that if he did try, he was scared that he would mispronounce their names, and they might get angry with him. Ms Cremona said that her sons called the applicant ‘George’ not Dad. She agreed that the applicant could not pronounce their names, and he calls them ‘mate’ or ‘bro’ not ‘son’. He said he was aware that Ms Cremona’s youngest son recently had a daughter, he does not know her name, but he knows she has been born.

6. Ms Cremona provides financial support to the applicant’s family and son in Tonga. In a statement from the applicant, he says; ‘My removal would place great strain on her and cut off essential financial and emotional support for both my son and my parents’. The Tribunal has no doubt that Ms Cremona loves and cares for the applicant. She has stood by him throughout his time in prison and detention. She visits him regularly and takes him food, drinks, tobacco, clothing  and other personal items.[36]

   [36] G-documents pp 122-145

7. The Tribunal accepts that the applicant is grateful to have Ms Cremona in his life. The Tribunal has found that they were not in a committed relationship built on mutual trust at the time of the applicant’s offending. The applicant had Ms Cremona, her family and his own family supports in place at the time of his offending and those supports did not prevent the offending from occurring.

8. The applicant has demonstrated a repeated pattern of alcohol intoxication which has resulted in episodes of physical and or verbal altercations with Ms A. There is no excuse for his family violence conduct. He blames the victim for his conduct. He lacks remorse and insight into his conduct. He has not participated in any formal rehabilitation with respect to his alcohol use or anger management. The supports he now relies upon to prevent him from offending in the future were all in place at the time that the offending took place. Therefore, the Tribunal does not accept that those supports will prevent him from reoffending and there is no substantive rehabilitation that the applicant has undergone that would prevent him from reoffending in the future. The Tribunal does not accept that the applicant’s participation in religious and cultural gatherings amounts to rehabilitation with respect to the behaviours that can attributed to his offending. His father says in his statement of 9 August 2025 that the applicant has always been a religious person and that did not prevent him from offending in the past.

9. The Tribunal accepts the respondent’s submissions that:

   ·There is insufficient evidence demonstrating that the applicant accepts responsibility for his actions, understands the impacts of his actions, or made any genuine efforts to address his behaviour.

   ·The applicant has not shown that he has undergone any rehabilitation to establish that he has insight and coping mechanisms to address the issues and risk factors which gave rise to his offending.

   ·The opportunity to offend in the same manner is likely to arise in the absence of any skills and coping mechanisms to address the issues which led to his previous domestic violence offending.

   Conclusion on character

   In all of the circumstances it is the Tribunal’s view that the applicant has not satisfied the Tribunal that his circumstances are outside s501(6)(d)(i) of the Act and that there is more than a minimal or remote chance that the applicant would engage in criminal conduct if released into the Australian community. The Tribunal accepts the respondent’s contention that the applicant at the very least presents a low to moderate risk of reoffending. Accordingly, the Tribunal finds that the applicant fails the character test.

   Should the discretion be exercised to refuse to grant a visa to the applicant

10. The Tribunal has determined that the Applicant does not pass the character test. The Tribunal now needs to consider whether the discretion in s 501(1) should be exercised to refuse to grant the applicant’s visa. In making a decision under s 501(1), the Tribunal must comply with the Direction and apply it to the specific circumstances of the case. The primary and other considerations contained in the Direction are considered below.

    Primary consideration 1 – protection of the Australian community from criminal or other serious conduct

11. Paragraph 8.1 of the Direction provides:

    (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.

    (2) Decision-makers should also give consideration to:

    a) the nature and seriousness of the non-citizen's conduct to date; and

    b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

12. Taking into account the matters raised in paragraph 8.1(1), the Tribunal notes that the applicant has not been law abiding whilst in Australia and has offended against his ex-girlfriend in a family violence context. Further, the applicant failed to respect the ADVO that was in place to protect the victim. The facts sheet created by the police on 10 June 2024  state:

    The Accused has shown a blatant disregard for his bail condition and the ADVO in place. Police do not believe that either Order provide the Victim with an adequate level of protection and believe the refusal of bail is the only option to ensure the safety of the Victim and the community.[37]

    [37] G-documents p 41.

13. This behaviour demonstrates that the applicant does not respect orders made by the court, and the Tribunal is not satisfied that if released into the community, he will not breach the current ADVO that is in place until 13 May 2026[38] and that he will not cause or threaten harm to Ms A, and potentially another woman, that he may have a relationship with, including  Ms Cremona. The Tribunal does note Ms Cremona’s evidence that in the time she has known the applicant she has never experienced any threatening behaviour from him.[39]

    [38] RTB pp 37-39.

    [39] Witness Statement, Ms Cremona (undated) p 1.

    The nature and seriousness of the conduct

14. Paragraph 8.1.1(1)(a) of the Direction requires the Tribunal to have regard to the nature and seriousness of the non-citizen’s criminal offending and other conduct to date. The following types of conduct are types are viewed as very serious by the Australian Government and the Australian community include:

    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.

15. The applicant’s conduct must be viewed as very serious because it includes violence against a woman and acts of family violence. In paragraph 4(1) of the Direction ‘family violence’ is defined to mean  ‘violent , threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’, it includes an assault and intentionally damaging or destroying property.  A ‘member of the person’s family’ is defined to include ‘a person who has, or has had, an intimate personal relationship with the relevant person’. In this case the applicant and the victim were in an intimate personal relationship for approximately eight months prior to the first offending and 10 months prior to the second offending. There is no doubt that the actions of the applicant’s offences were acts of family violence.

16. The Tribunal has considered the other factors listed in paragraph 8.1.1(1). With respect to the sentence imposed by the courts for the applicant’s crimes, he received community corrections orders of two years in respect of the first offence and 12 months in respect of the second offence.[40] There is limited evidence about the impact of the applicant’s offending on the victim, but the Tribunal notes that as a result of the first offence she sustained a cut to her nose which caused bleeding. At the time of the offending the police observed multiple towels with dried blood on them.[41] The applicant’s offending must have been frightening to the victim.[42] The applicant was convicted of offending on 2 separate occasions (30 March 2024 and 9 June 2024) and the Tribunal has found that there was another incident of family violence involving the applicant that occurred on or about 31 May 2025. Accordingly, the applicant’s offending can be described as frequent.[43] The cumulative effect of the applicant’s repeated offending puts additional strain on the criminal justice system.

    [40] Paragraph 8.1.1(1)(c)of the Direction.

    [41] G-documents p 37.

    [42] Paragraph 8.1.1(1)(d)of the Direction.

    [43] Paragraph 8.1.1(1)(e)of the Direction.

17. For these reasons, the Tribunal considers the applicant’s conduct to be very serious and it weighs heavily against exercising the discretion to grant the applicant’s visa.

    The risk to the Australian community should noncitizen commit further offences or engage in other serious conduct

18. Paragraph 8.1.2 of the Direction provides:

    (1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

    (2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

    a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i.information and evidence on the risk of the non-citizen re-offending; and

    ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

19. This paragraph requires an assessment of the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct. It also requires an assessment of the risk or likelihood of the applicant reoffending. There is no statutory constraint on the way that this risk is assessed save that whatever is taken into account must be logical and rational.[44]

    [44] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68]

20. Paragraph 8.1.2(2)(a) requires an assessment of the nature of the harm to individuals or the Australian community should the applicant engage in further or other serious conduct. If the applicant was to reoffend the potential for significant harm is substantial. If he was to repeat similar family violence, such conduct could result in physical and psychological harm or worse to his victim. Further reoffending will consume law enforcement and health care resources. Accordingly, the Tribunal finds the nature of the harm resulting from the applicant’s reoffending is so serious that it would be unacceptable to the Australian community.

21. Paragraph 8.1.2(2)(b) relates to the risk or likelihood of the applicant reoffending. In relation to the applicant’s rehabilitation and efforts made to prevent reoffending, he  has not engaged in any formal rehabilitation programs aimed at addressing his behaviours of concern. There is limited material before the Tribunal regarding evidence of rehabilitation. The applicant contends that he was not made aware of any formal courses that he could undertake in relation to his alcohol use and anger management during the time he has been in prison and detention from June 2024 until the current date. In the applicant’s ‘Intake Screening Questionnaire’, he denied he had issue with alcohol,[45] he said that he did not think that alcohol contributed to his arrest.[46] With respect to his stress factors in the last 12 months he said that his ex-girlfriend was threatening him with the ADVO.[47] There is no evidence that the applicant has any insight into the harm caused by his behaviour or the causes of his behaviour.  He expressed no intention of finding or participating in, either in detention or in the community, any courses to  address the factors that caused or contributed to his offending. He says:

    My intentions are to be a good role model too the youth at my local church. Whilst here at Villawood I have been active in the church services. Bringing many cultures and religion together. Teaching songs and play guitar.

    [45] RTB p 78.

    [46] RTB p 82.

    [47] RTB p 81.

22. On behalf of the applicant, it was submitted that religion and culture is important rehabilitation in the Tongan context. The Tribunal notes that the applicant’s religion and culture did not prevent his offending in the past.

23. The Tribunal does accept that the applicant is remorseful for the conduct that led to his offending. He says in his statement dated 31 May 2025:

    … I wish to express my sincere remorse all my past mistakes, particularly with regard to my previous relationship. I acknowledge that my past included some poor decisions, and I take full responsibility for the hurt and consequences caused. I cannot undo the past, but I have taken the time to reflect deeply and honestly while in detention.[48]

    [48] G-documents p 71.

24. In the same statement, the applicant also says:

    My intention now is to move forward in a way that reflects growth, maturity, and accountability. I want to live a life of stability, respect, and purpose- and I am fully committed to doing so, with Maria by my side.

1. The Tribunal notes that the applicant had Maria Cremona by his side at the time of his offending. He also had family members and friends by his side at the time of offending. The Tribunal is not satisfied that Ms Cremona, her family, his family, his church, and friends will necessarily be sufficient to prevent the risk that the applicant will reoffend in the future. If the applicant was released into the community, it is highly likely that he will be faced with similar circumstances that contributed to his offending behaviour.

2. The Tribunal does not consider that the applicant has taken appropriate steps to avail himself of appropriate rehabilitation to address his offending behaviour in the time since he was convicted. The Tribunal is unable to make favourable findings in respect of the applicant’s rehabilitative efforts when he has failed to undertake any appropriate courses, and he continues to blame the victim and minimise his own conduct.

3. The Tribunal finds the applicant does have ongoing needs with respect to his domestic violence patterns of behaviour and attitudes. The applicant’s future conduct in relation to alcohol abuse and domestic violence conduct remains untested. He has not displayed a good understanding about domestic violence, and he minimises his responsibility with respect to his domestic violence offending. In the circumstances the Tribunal finds that the applicant proposes a real risk of committing further domestic violence offending if he was returned to the Australian community, whose safety is regarded by the Direction as ‘the highest priority of the Australian Government.’ The Tribunal finds that there is a real risk that the applicant will reoffend and if he does the risk of injury or worse to the Australian community is significant. The Tribunal finds that the factors in paragraph 8.1.2 of the Direction weigh heavily against exercising the discretion to grant the applicant’s visa.

   Conclusion for primary consideration 1

   As a result of the Tribunal’s analysis and evaluation of the evidence that relates to primary consideration 1, particularly the protection of the Australian community, the very serious nature of the applicant’s conduct and the risk to the Australian community should the applicant reoffend, the Tribunal finds that the evidence weighs heavily against exercising the discretion to grant the applicant’s visa.

   Primary consideration 2 - whether the conduct engaged in constituted family violence

4. Paragraph 8.2 of the Direction provides:

   (1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

   (2) This consideration is relevant in circumstances where:

   a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

   b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

   (3) In considering the seriousness of the family violence engaged in by the non‑citizen, the following factors must be considered where relevant:

   a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;

   b) the cumulative effect of repeated acts of family violence;

   c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:

   i) the extent to which the person accepts responsibility for their family violence related conduct;

   ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

   iii) efforts to address factors which contributed to their conduct; and

   d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non‑citizen's migration status, should the non‑citizen engage in further acts of family violence.

5. Paragraph 4(1) of the Direction defines ‘family violence’ and ‘member of a person’s family’. As stated, family member ‘includes a person who has, or has had, and intimate personal relationship with the relevant person.’ The Tribunal finds that the applicant has committed acts of family violence against Ms A, with whom he has had an intimate personal relationship. The applicant has been convicted of three family violence offences that occurred on 30 March 2024 and 9 June 2024.

6. The Tribunal has found that the family violence committed by the applicant against Ms A to be very serious. The applicant has expressed remorse for his offending, but the Tribunal is not satisfied that he has accepted responsibility for his conduct, and he has limited insight into the causes of his offending. He has done no rehabilitation with respect to those causes. He continues to victim blaming and minimise the seriousness of his own conduct.

7. The Tribunal finds that the applicant’s family violence conduct was frequent between 30 March 2024 and 9 June 2024, given the withdrawal of a number of serious charges against the applicant, the Tribunal makes no finding in relation to whether there was a trend of increasing seriousness.[49] The applicant’s behaviour has caused harm to his victim and has resulted in the use of public money and resources associated with law enforcement.[50] As stated, whilst the applicant has expressed remorse for his offending, he has not accepted full responsibility for it, nor has he expressed any understanding about the impact of his behaviour on his victim. The applicant has not participated in any formal courses to address the factors which contributed to his family violence offending. He has not expressed any intention to participate in such courses in the future. He does not accept that alcohol use is a problem for him or that it contributed to his offending. He blames his ex-girlfriend for making him angry and causing him to offend. The Tribunal is not satisfied that the applicant’s participation in a religious and cultural group is sufficient to amount to participating in formal rehabilitation with respect to alcohol use, anger management and family violence offending.[51] A final ADVO was made on 14 May 2024, for a period of two years, expiring on 13 May 2026. In those orders the applicant is warned that he must follow them even if Ms A does not want him to or tells him that he does not need to. It contains a warning that if he does any of the behaviours referred to in the orders it will be “a criminal offence called a breach”.[52] Accordingly, the Tribunal is satisfied that the applicant committed offences of family violence after being made aware of some of the consequences of any further acts of family violence. However, there is no evidence that he received no formal warning about the impact on his migration status should he engage in further acts of family violence.[53]

   Conclusion for primary consideration 2

   As a result of the above analysis and evaluation of the evidence relating to primary consideration 2, the Tribunal finds that the applicant’s family violence considered overall is very serious and the Tribunal has significant doubts about the extent of the applicant’s rehabilitation. Accordingly, the Tribunal concludes that this primary consideration weighs heavily against exercising the discretion to grant the applicant’s visa.

   [49] Paragraph 8.2.(3)(a) of the Direction.

   [50] Paragraph 8.2.(3)(b) of the Direction.

   [51] Paragraph 8.2.(3)(c) of the Direction.

   [52] G-documents p 45.

   [53] Paragraph 8.2.(3)(d) of the Direction.

   Primary consideration 3 - the strength, nature and duration of ties to Australia

8. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of the Direction provides:

   (1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

   (2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

   a)how long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:

   i.     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

   ii.     more weight should be given to time the non-citizen has spent contributing positively to the Australian community

   b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

9. The applicant has the following family and social ties within Australia:

   a. partner (Maria Cremona),
   b. Ms Cremona’s adult children (Aaron and Brandon Costa),
   c. Ms Cremona’s mother (Glennis Cremona), and
   

   [54] Respondent’s SOFIC p 16 and G-documents p 93.

   d. uncle (Maha Mesui) and aunt (Simaima Latu), and family member (Ben Lafaitele).[54]

10. The respondent accepts that the applicant has engaged in some positive contribution to the community by way of his employment at Sydney markets as a fork lift operator.[55] However, the respondent submits that this consideration only weighs moderately in favour of the applicant being granted a visa taking into account the following factors:[56]

    ·The applicant arrived in Australia around 5½ years ago as an adult.

    ·Since the expiry of his visitor visa, the applicant has held a series of bridging visas with significant periods in between as an unlawful non-citizen, including since 30 November 2022.

    ·The applicant has either been in prison or detention since 10 June 2024.

    ·The applicant could maintain contact with his partner, his partner’s family and his own family in Australia via electronic communication and visits from them to Tonga.

    ·The applicant claims to have been in a “genuine and committed” relationship with his partner since March 2023, and on another occasion since October 2022. The applicant’s claim that he was genuinely committed to the relationship is inconsistent with the police facts which indicates that the applicant was in a relationship with the victim between August 2023 and June 2024.

    [55] Respondent’s SOFIC p 16.

    [56] Respondent’s SOFIC p 17.

11. On behalf of the applicant, it was submitted that he has strong ties in the Australian community. He has been with his partner, Ms Cremona, for three years and he has extended family in Australia including an uncle and an aunt. He visits his extended family and Ms Cremona’s family when they can.

12. The Tribunal has considered the letters provided in support of the applicant from Ms Cremona, his father, his uncle, his aunt, and Ms Cremona’s mother and children. Apart from Ms Cremona none of these people have visited the applicant whilst in prison or detention since June 2024. They have been in touch with him electronically. The Tribunal has also considered the oral evidence given by Ms Cremona and his uncle Mr Mehe Mesui. His uncle said that he wanted the applicant to stay in Australia so that he can provide money to his family in Tonga. He was not aware of the applicant’s offending until the police turned up at his house, where the applicant was residing. The applicant did not provide him with full details of what he did. He was aware that the applicant had assaulted Ms A. He said he did not know why the applicant did it, but it must have been something to do with the girl. She did come to his home once, and he told her to leave because of the ADVO. Ms Cremona gave evidence that the applicant has a good relationship with her younger son and her grandson. They have both had lunch and dinner with her family and she goes to his family gatherings.

13. The Tribunal accepts that the applicant has made a positive contribution to Australia through his work at the Sydney markets. He has also provided some character references from members of his family and Ms Cremona’s family vouching for his good character. He does have links with these people who are either Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

    Conclusion for primary consideration 3

14. The Tribunal finds that on balance primary consideration 3, weighs moderately in favour of exercising the discretion to grant the applicant’s visa.

    Primary consideration 4 - the best interests of minor children in Australia

15. Paragraph 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination about whether cancellation or refusal under s 501 of the Act is or is not in the best interests of children who are under 18 at the time the decision is expected to be made.

16. The respondent contends that there are no minor children in Australia that would be affected by a visa refusal decision.[57] The applicant made no submissions with respect to minor children in Australia that would be affected by a visa refusal decision.

    [57] Respondent’s SOFIC p 17.

17. The respondent notes that in one of the applicant’s statements he says:

    I would love to be a part of my families every day is going ons. I’m looking forward to the birth of the newest member of our family. Her name is Poppy and is due in April. I would love to be present to support any way I can.

18. It is understood that this child is the child of Ms Cremona’s son, Aaron Costa.[58] At the hearing the applicant said he was aware that this child had just been born but he did not know her name. The Tribunal accepts the respondent’s contention that this child presently has no existing relationship with the applicant and if he was granted a visa, it is likely that this child would have a limited, non-parental relationship with the applicant.

    [58] G-documents p 74.

19. Ms Cremona did mention that the applicant had a relationship with her grandson. She said that they ‘draw on the concrete together’. Nothing more was said about Ms Cremona’s grandson and his relationship with the applicant. The Tribunal finds that this child has had a limited relationship with the applicant in the past, there is no existing relationship and if the applicant was granted a visa, it is likely that this child would have a limited, non-parental relationship with the applicant.

20. The applicant has no minor children of his own in Australia. In the applicant’s ‘Intake Screening Questionnaire’, completed on 13 June 2024, it states that the applicant is a parent to 2 children less than 18 years of age not living with him. It records that he has an 11 and a 6 year old boy.[59] The evidence from the applicant and Ms Cremona at the hearing was that applicant has one son who lives with the applicant’s parents in Tonga and they send money to him to support him ‘to remain in school’ which ‘gives him the chance to build a better future with opportunities and skills for later in life’.[60]

    [59] RTB p 80.

    [60] statement of applicant (undated) p 1.

21. The only minor children in Australia that may be affected by this decision are Ms Cremona’s two grandchildren. The applicant’s relationship to them is non-parental, there is no existing relationship and there is limited meaningful contact between them. It is unlikely that the applicant would play a positive parental role in their future given that they have their own parents who already fulfil a parental role in their lives.

    Conclusion for primary consideration 4

22. The Tribunal finds that on balance primary consideration 4 weighs minimally in favour of exercising the discretion to grant the applicant’s visa.

    Primary consideration 5 – expectations of the Australian community

23. Paragraph 8.5 of the Direction provides:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    (2)  In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    a) acts of family violence; or

    b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    f) worker exploitation.

    (3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4) 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.

24. This primary consideration requires decision-makers to consider the expectations of the Australian community as articulated by the Australian Government, without independently assessing the community’s expectations in a particular case. This ‘deemed community expectation’ must be understood and applied normatively.[61]

    [61] FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [91].

25. The respondent contends that the applicant has committed acts of family violence and serious crimes against women.[62] Through his offending he has put members of the Australian community at considerable risk and his interactions with the criminal justice system are all at the expense of the Australian community. Further, the applicant has committed very serious offences such that the Australian community would expect he would not be granted a visa.[63] Therefore, having regard to the principles set out in paragraph 8.5 of the Direction, this primary consideration weighs heavily against exercising the discretion granting the applicant a visa.[64]

    [62] Paragraph 8.5(2)(a) and (c) of the Direction.

    [63] Paragraph 8.5(2) of the Direction.

    [64] Respondent’s SOFIC p 18.

1. On behalf of the applicant, it was submitted that he does not pose a serious risk to the Australian community if he was to be granted a visa . He has been convicted for his offending, he has done his time, he is remorseful, and he is now rehabilitated . He has been in prison and detention since June 2024. Any issues of risk that he poses to the community are mitigated by his strong family ties and his relationship with Ms Cremona.

2. The Tribunal has found that the applicant has committed offences acts of family violence and serious crimes against a woman. This raises serious character concerns of conduct referred to in this paragraph 8.5(2)(a) and (c) of the Direction. 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 expectations of the community that decision-makers are required to consider are those set out in the Direction.[65] It is the Tribunal’s role to determine what weight is to be attached to the expectations set out in the Direction.

   [65] See FYBR v Minister for Home Affairs [2019] FCAFC 185

3. The Tribunal finds that the applicant’s family violence offending raises serious character concerns. He arrived in Australia in  2020, at the age of 29 and commenced offending in 2024. Further, the inherent nature of the applicant’s family violence offending is serious, and the Tribunal finds that he does pose a measurable risk of causing further physical harm. As a result, the Australian community, expects the Government not to allow him to remain in Australia.[66]

   Conclusion for consideration 5

   [66] See paragraph 5.2 of the Direction.

   96.Overall, the Tribunal finds that primary consideration 5, relating to the expectations of the Australian community, weighs heavily against exercising the discretion to grant the applicant’s visa.

   Other consideration 1- legal consequences of the decision

4. Paragraph 9.1 of the Direction provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198 are liable to removal from Australia as soon as reasonably practicable and in the meantime, they are in detention. This other consideration also deals with Australia’s non-refoulement obligations and the effect of non-citizens that are covered, or not covered, by a protection finding.

5. The Respondent notes that the Applicant has not made any claims which require assessment in relation to Australia’s non-refoulement obligations, nor is there any evidence that they arise in this case. Further, the applicant is not subject to a protection finding.

6. The Tribunal acknowledges that there are some intended legal consequences of a decision under s 501(1) in that all other visas will be cancelled, and he would be precluded from applying for certain types of visas.[67]

   [67] Respondent’s SOFIC p 19.

   Conclusion for other consideration 1

7. On balance, with respect to other consideration 1, the Tribunal ascribes minimal weight in favour of exercising the discretion to grant the applicant’s visa.

   Other consideration 2 - Extent of impediments if removed

8. Paragraph 9.2 of the Direction provides that taking into account the matters identified in 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters to be identified are:

   ·the applicant’s age and health;

   ·whether there are substantial language or cultural barriers; and

   ·any social, medical and/or economic support available to the applicant in their country.

9. The applicant is 34 years of age, and he has no reported medical or psychological conditions. Accordingly, the applicant’s age and state of mental and physical health are not impediments to his return to and re-settlement in Tonga.

10. The applicant was born in Tonga. As he grew up in Tonga, he is familiar with the culture there. He has no problems with the language, he speaks fluent Tongan. The applicant has worked in Australia and has obtained skills that may assist him find employment in Tonga.

11. On behalf of the applicant, it was submitted that it will cause psychological and emotional turmoil to both the applicant and Ms Cremona if he is removed to Tonga. His family has no work for him in Tonga. Further, due the poor health of Ms Cremona’s mother she could not move to Tonga in the foreseeable future.

12. It is acknowledged that the applicant may face some financial and emotional hardship upon his return to Tonga. He may not be able to find employment straightaway and being separated from Ms Cremona as well as his family and friends in Australia will cause him some distress.

13. The applicant’s immediate family reside in Tonga, including his mother, father, four brothers and two sisters.[68]  He also has a son (and possibly another child) who resides in Tonga.[69] If removed to Tonga he will be supported by his family, and he should be able to re-establish his ties and contacts in that country. There may also be some benefit to the applicant’s child or children to Tonga as he or they would be given the opportunity to be reunited with their father.

    [68] G-documents p 110.

    [69] G-documents p 91, RTB 80, statement of applicant (undated) p 1, witness statement of M Cremona (undated) p2.

14. The applicant submits that his parents and his son rely upon him for financial assistance.[70] The applicant has acquired skills as a result of his employment in Australia and although it may not be easy, he should eventually be able to find work in Tonga to help support his parents and child/children.

    [70] Statement of applicant (undated) p 2.

15. The applicant submits that Ms Cremona relies on him for emotional and practical support. He says his removal would place additional hardship on her and make it much harder to care for their family.[71] The Tribunal accepts that at least initially the applicant will be separated from Ms Cremona. She gave evidence that they had not spoken about her relocating to Tonga if he was returned there. She is hopeful the applicant will remain in Australia but if he is removed,  their relationship will remain strong, and she would move to help him. She would not be able to relocate to Tonga immediately but if that is what is necessary, she will do it in order to keep their relationship strong.

    [71] statement of applicant (undated) p 2.

    Conclusion: other consideration 2

16. There are no substantial language, cultural, medical, social or economic barriers impeding the applicant’s return to and re-settlement in Tonga. He should be able to re-establish himself and maintain basic living standards in Tonga, the Tribunal accepts nonetheless, that other consideration 2, does attract slight weight in favour of exercising the discretion to grant the applicant’s visa.

    Other consideration 3: Impact on Australian business interests

17. Paragraph 9.3 of the Direction provides that the Tribunal must consider any impact on Australian business interests if the applicant is not allowed to remain in Australia.

18. The Tribunal notes the wording of paragraph 9.3.(1) of the Direction which states that when considering the impact on Australian business interests, an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project or important service in Australia. This is not applicable in the Applicant’s case. There is no evidence that any Australian business interests would be affected by the applicant’s removal.

    Conclusion: other consideration 3

19. As there is no impact on Australian business interests as described by the direction, other consideration 3 is afforded neutral weight.

    CONCLUSION

20. The Tribunal has found that the Applicant does not pass the character test pursuant to
    s 501(6)(d)(i) of the Act. Having failed the character test, the Tribunal must determine whether it should exercise the discretion under s 501(1) to refuse to grant the applicant a visa. In doing so, the Tribunal applied the Direction to the specific circumstances of the applicant’s case.

21. The Tribunal considers the applicant’s offending as very serious. The Tribunal has considered all the primary and other considerations referred to in the Direction. In summary, the Tribunal finds that:

    (1)The protection of the Australian community weighs heavily against exercising the discretion to grant the applicant’s visa.

    (2)The consideration of family violence also weighs heavily against exercising the discretion to grant the applicant’s visa.

    (3)The strength, nature and duration of the applicant’s ties to Australia weighs moderately in favour of exercising the discretion to grant the applicant’s visa.

    (4)The best interests of the children identified as being impacted by the decision weighs minimally in favour of exercising the discretion to grant the applicant’s visa.

    (5)The expectations of the Australian community weighs heavily against exercising the discretion to grant the applicant’s visa.

    (6)The legal consequences of the decision weighs minimally in favour of exercising the discretion to grant the applicant’s visa.

    (7)The extent of impediments if removed weighs slightly in favour of exercising the discretion to grant the applicant’s visa.

    (8)The impact on Australian businesses weighs neutrally in the applicant’s case.

22. The Tribunal has placed heavy weight on the first, second and fifth primary considerations. As permitted by paragraph 7(2) of the  Direction, the Tribunal has given greater weight to primary consideration 1 (protection of the Australian community). The Tribunal is satisfied that the heavy weight afforded to the first, second and fifth primary considerations against exercising the discretion to grant the applicant’s visa carries much greater weight than the weight given to the remaining primary and other considerations that weigh in favour or neutrally to the granting of that visa.

23. Having weighed all the relevant considerations individually and cumulatively, the Tribunal finds that the discretion under s 501(1) should be exercised to refuse to grant the Applicant a visa.

    DECISION

24. The decision under review not to grant the applicant the Bridging E (Class WE) (subclass 050) visa under s 501(1) of the Act is affirmed.