NSPX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2829

NSPX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2829 (1 September 2023)
Division:GENERAL DIVISION
File Number(s): 2023/4476
Re:NSPX
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:1 September 2023
Date of written reasons: 1 September 2023
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 15 June 2023 not to revoke the mandatory cancellation of the Applicant’s visa is affirmed.
.......[SGD].................................................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – Migration Act section 501CA(4) – primary considerations – other considerations – whether there is another reason to revoke mandatory cancellation of applicant’s visa – Ministerial Direction No.99 – substantial criminal record – nature and seriousness of the offending – family violence – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if removed – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
BXTW and Minister for Home Affairs (Migration) [2019] AATA 4446
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
1 September 2023
INTRODUCTION

NSPX (the Applicant) is a citizen of Tonga, born in 1976. In 2004, he married MO, an Australian citizen. On 14 June 2005, he entered Australia with a UF-309 partner visa.[1] He gained employment in Sydney as a security guard. The married couple lived together in a beachside suburb and had a son in May 2007. Unfortunately, their marriage broke down and they divorced in August 2008 in Tonga.[2]
[1] Subclass 309 (Partner) Provisional Visa: G4, 134.
[2] RTB, 2.
Around 2009, he formed a relationship with another woman, OT. They lived together, but the relationship was short-lived and ended in violence.[3] On 26 October 2009, he was charged with assault occasioning actual bodily harm (DV) against her, and two counts of destroy or damage property.[4] He was remanded in custody. OT was eight weeks pregnant at the time of the assault, although the Applicant was not made aware of this until he was incarcerated. The child is now 14 years old. On 4 November 2009, he was sentenced by the Burwood Local Court to 12 months imprisonment with a non-parole period of nine months. On 16 December 2009, the Paramatta District Court reduced the non-parole period from nine months to six months.[5]
[3] G4, 72.
[4] RTB, 82.
[5] G4, 30.
In April 2010, he was informed by the Department of Immigration and Citizenship that his visa status had been considered by reason of his offending. He was warned that any further criminal convictions or misconduct could result in further consideration of the cancellation of his visa.[6]
[6] Letter dated 9 April 2010: G4, 148.
While he was in prison, he reconciled with MO. They remarried in 2010,[7] and have four minor children, aged 16, 13, nine and six years old respectively. Over the next decade, he was convicted of several domestic violence offences, and by the end of the decade, their marriage was over. In March 2020, she applied for an apprehended domestic violence order (ADVO). Under the terms of the order, he was excluded from the family home. He has not seen or spoken to the children since.
[7] The Report dated 3 November 2009 states that they were remarried in September 2009 (RTB, 2), but this is not consistent with his oral evidence: see also RTB, 140.
On 25 April 2020, he was charged with contravening an AVO (domestic).[8] On 23 July 2020, he was sentenced to three months imprisonment for this offence, with an expiry date of 24 July 2020. The Court was satisfied that a fixed term of imprisonment was required:
[It] fulfils the functions of specific deterrence, general deterrence, punishment, making him accountable, denouncing his conduct and recognising the harm done to the victim by way of domestic violence-related offences.[9]
It was his seventh DV offence. The magistrate rejected the notion that the Applicant wanting to see his children provided a valid reason for breaching a court order. He noted that it was not the first instance of such offending and that the Applicant “shows a contemptuous disregard for Courts' orders”. His record was described as “appalling”.
[8] H 75061108: G4, 30; G4, 57.
[9] G4, 61-62.
At around this time he formed a relationship with AM. This relationship was also toxic. On 29 June 2022, he was sentenced to a term of 17 months imprisonment for assault occasioning actual bodily harm (DV) and for contravening an ADVO. On 20 October 2022, an appeal against the severity of the sentence was dismissed by the District Court of New South Wales.[10] He received a non-parole period of 12 months and 22 days, with an earliest release date of 25 October 2022. Following his release from prison, he was transferred directly to immigration detention.[11]
[10] G4, 29.
[11] G4, 75; RSTB, 4.
In summary, he has been sentenced to three terms of imprisonment for domestic violence offending: in 2009, a 12-month term of imprisonment with a non-parole period of six months; in 2020, a fixed term of three months; and in 2022, a 17-month sentence with a non-parole period of 12 months and 22 days. These custodial sentences are intermingled with a variety of non-custodial sentences imposed for domestic violence offending, including a Community Corrections Order (CCO) and an Intensive Corrections Order (ICO).
VISA CANCELLATION
On 28 July 2022, the Applicant’s Class BB Subclass 155 Five Year Resident Return visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act), because of these convictions.[12] On 31 July 2022, he made representations seeking revocation of the cancellation of his visa.[13] On 15 June 2023, the Respondent decided, pursuant to subsection 501CA(4) of the Act, not to revoke the mandatory cancellation of his visa.[14]
[12] G4, 133.
[13] G4, 88, 90.
[14] G2, 7.
On 26 June 2023, he applied for review to this Tribunal, pursuant to paragraph 500(1)(ba) of the Act. The Tribunal is required to consider the matter afresh, standing in the shoes of the original decision-maker. For the reasons which follow, I am satisfied that the correct or preferable decision is to affirm the decision. Therefore, his visa remains cancelled.
THE HEARING
The Tribunal heard the matter on 21 and 23 August 2023. The Minister was represented by Mr T. Goodwin of the Australian Government Solicitor. The Applicant was self-represented. He was assisted by a Tongan interpreter to minimise communication difficulties.
At the commencement of proceedings, the Applicant asked for a lawyer. The Tribunal explained that it did not have the power to appoint a lawyer. He did not apply for an adjournment, and in any event, there was no practical window of opportunity to delay the hearing.[15]
[15] The Tribunal was required to finalise its decision by 7 September 2023, by reason of paragraph 500(6L)(c) of the Migration Act.
The Applicant was cross examined extensively over two days. He was provided with an opportunity to respond to questions about his offending and to elaborate on factors relevant to the Tribunal’s decision. He did not call any witnesses.
MATERIALS BEFORE THE TRIBUNAL
Written submissions received:
(a)Applicant’s Statement filed on 10 August 2023
(b)Respondent’s Statement of Facts, Issues and Contentions (RSFIC) filed on 9 August 2023
Respondent’s materials:
(a)Respondent’s Tender Bundle (RTB) filed on 9 August 2023
(b)Respondent’s Supplementary Tender Bundle (RSTB) filed on 18 August 2023
(c)Applicant’s translated statement tendered as Exhibit 1
(d)IHMS Records (redacted) filed on 24 August 2023
Other:
(a)Section 501G documents filed on 4 July 2023
FINDING ON THE CHARACTER TEST
A person sentenced to a term of imprisonment of 12 months or more has a “substantial criminal record” pursuant to paragraph 501(7)(c) of the Act and therefore does not pass the character test under paragraph 501(6)(a).
As noted above, on 29 June 2022, the Local Court of NSW sentenced the Applicant to a term of 17 months imprisonment for assault occasioning actual bodily harm (DV) and for contravening an ADVO. On 20 October 2022, the District Court of New South Wales dismissed an appeal against the 17-month sentence.[16]
[16] G4, 29.
The Applicant agreed in his written submissions that he did not pass the character test. He also gave evidence to that effect before the Tribunal.
I am satisfied that the Applicant does not pass the character test.
Subsection 501CA(4) of the Act provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
On 31 July 2022, the Applicant made representations in accordance with the invitation and his statement is appended to the delegate’s reasons for decision.[17]
[17] G4, 88.
In view of the finding that the Applicant does not pass the character test, the Tribunal must determine whether under paragraph 501CA(4)(b)(ii) there is another reason why the original decision to cancel his visa should be revoked.
EXERCISING THE DISCRETION UNDER SUBSECTION 501CA(4)
Section 499 of the Act provides that the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or the exercise of those powers. Direction No. 99 (the Direction), enacted under section 499 and commencing on 3 March 2023, provides a range of considerations to which the Tribunal should have regard in exercising its discretion under subsection 501CA(4).
Part 1 of the Direction provides a set of principles that the Tribunal should have regard to when applying these considerations. Paragraph 5.2 of the Direction provides:
(1)   Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)   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.
(3)   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 measureable risk of causing physical harm to the Australian community.
(4)   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.
(5)   With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)   Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by these principles, the Tribunal must approach its statutory task by applying Part 2 of the Direction. Part 2 includes five primary considerations in section 8 and four other considerations in section 9.
The section 8 primary considerations are as follows:
·Protection of the Australian Community (PC1)
·Family violence committed by the non-citizen (PC2)
·The strength, nature, and duration of ties to Australia (PC3)
·Best interests of minor children in Australia affected by the decision (PC4)
·Expectations of the Australian community (PC5)
The section 9 other considerations are as follows:
·Legal consequences of decision under section 501 or 501CA (OC1)
·Extent of impediments if removed (OC2)
·Impact on victims (OC3)
·Impact on Australian business interests (OC4)
These considerations are not exhaustive. There may be some reason not explicitly stated in the Direction which constitutes “another reason” within the purview of paragraph 501CA(4)(b)(ii).
The way in which the Tribunal should approach its task of evaluation is the subject of a recent decision of the Federal Court of Australia: CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 (CRNL). The Full Court (Colvin, Stewart and Jackson JJ) allowed an appeal from a single judge upholding the Tribunal’s decision not to revoke the cancellation of a visa under subsection 501CA(4). The Court stated, at [26]-[28]:
Section 7 of the Direction is headed “Taking the relevant considerations into account” and says:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Therefore, the Direction requires greater weight to be given to primary considerations unless there is some reason why that general approach should not be adopted. Further, the Direction does not confine the decision-maker to the primary and other considerations. It follows that part of the task for a decision-maker in complying with the Direction is to evaluate whether it is appropriate for a consideration that is not a primary consideration to be given greater weight than one or more primary considerations. In addition, when evaluating whether there is “another reason” to revoke a visa cancellation in the exercise of the power conferred by s 501CA(4), the decision-maker must evaluate whether one or more primary considerations outweighs other primary considerations.
In consequence, compliance with the Direction is not achieved by focussing upon individual considerations and attributing some form of “weight” to that consideration viewed in isolation. The real burden of the task to be undertaken by a decision-maker who must comply with the Direction is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together. A task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual considerations, attributing to each of them some form of individual abstract term purporting to be a measure of their significance, and then aggregating by some form of calculus each of those individual assessments. To undertake the task in that manner is not to comply with the Direction. (Emphasis added)
The Full Court also commented (at [42]-[43]):
It is to be observed in this case that the Tribunal’s reasons are structured in accordance with a three-tier system of headings. Consideration of each of the primary considerations was dealt with under the first tier represented by headings that are capitalised and emboldened. The “other considerations” were dealt with under a single first tier heading “OTHER CONSIDERATIONS” and second tier sub-headings for each other consideration. The heading “Findings: Other Considerations” which appears immediately before the unnumbered paragraph following [112] is such a second tier sub-heading. Both because of that matter of structure and from its content, the unnumbered paragraph is apparently deliberately located within the section of the reasons dealing with the other considerations.
It is only thereafter that the first tier heading “CONCLUSION” is given. It is in that concluding section that the dispositive reasoning of the Tribunal is to be found. Because the Tribunal recognised in paragraph [113] that it was required to weigh “all the Considerations” (emphasis added), and because it had expressly gone through the process of considering each of the “other considerations in turn”, as explained above, it cannot be concluded that the Tribunal failed to consider the “other considerations”. However, there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation. Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various “other considerations”. After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.
The Minister submits that the Tribunal undertook the required task of balancing and evaluation by asking the rhetorical question, “What did the Tribunal do in reaching its conclusion not to revoke the cancellation of the visa if not an evaluation and balancing of the various factors to which it had ascribed weight in order to undertake exactly that task?”. There is no obvious or necessary answer to that rhetorical question, which therefore deprives it of any rhetorical force. The Tribunal must be taken at its word. What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed “another reason” why the cancellation should be revoked. That amounts to a failure to undertake the statutory task.

In a previous decision of the Tribunal, the process of evaluation is described as one of synthesis:
The correct or preferable decision is one that takes into account all relevant considerations and excludes any irrelevant consideration. In reaching a conclusion as to the resolution of all the various factors, the process is neither formulaic nor mechanistic. The final result is not merely an aggregation of the various factors, but a synthesis thereof.[18]
[18] BXTW and Minister for Home Affairs (Migration) [2019] AATA 4446 at [66].
The concept of synthesis requires the combining of all relevant factors but does not of itself explain how the synthesis of those factors is to occur. It is hard to avoid the language of weights and balance, or the imagery of the playground see-saw. One useful approach may be to ask whether any factor or combination of factors counters the combined force of those considerations favouring non-revocation. If so, there will be “another reason” for revoking the original decision. I glean from CRNS that focussing on each consideration in isolation without undertaking the weighing exercise may lead to error, and that it is the process of balancing and evaluation which is central to the discretionary exercise. That process forms the rational basis for the decision to revoke or not revoke the original decision. As CRNS itself illustrates, the comprehensive coverage of the Direction, with each consideration raising multiple factors, lends itself to formulaic decision-making.
THE APPLICANT’S OFFENDING RECORD
The Tribunal has been provided with the Applicant’s National Coordinated Criminal History Check (NCCHC) records.[19] The record shows a range of convictions for domestic violence offences over 13 years, including common assault,[20] assault occasioning actual bodily harm,[21] contravening an AVO,[22] stalk/intimidate intend fear[23] and property damage.[24]
[19] G4, 28.
[20] Assault: 15 September 2011 (fine); 23 January 2017 (2 counts) (9 months bond); 19 January 2022 (12 months CCO); FS, G4, 64.
[21] Assault occasioning actual bodily harm: 16 December 2009 (12 months imprisonment, non-parole period (NPP) 6 months); 20 October 2022 (17 months imprisonment, NPP 12 months and 22 days).
[22] Contravening AVO: 23 July 2020 (3 months imprisonment); 25 June 2021 (12 months ICO); 20 October 2022 (17 months imprisonment, NPP 12 months and 22 days).
[23] 25 June 2021 (two counts) (12 months ICO).
[24] Property damage: 4 November 2009 (two counts) (24-month good behaviour bond); FS, G4, 71.
Assault occasioning actual bodily harm committed on 27 October 2009
In October 2009, he was working late night shifts as a security guard. He worked Friday and Saturday nights from 8:00PM to 2:00AM and the occasional Sunday night shift.[25]
[25] Report, Probation and Parole Service: RTB, 2.
According to notes made by NSW Police, at around 5:30AM on 26 October 2009, he returned to the flat he lived in with OT.[26] A physical altercation ensued. He grabbed her by the hair and pushed her onto the floor. While she was on the floor he punched and kicked her numerous times in the back and the stomach. She managed to get out of the flat wearing only a top, grabbing a pillow slip on the way out to cover herself. She used a neighbour’s phone to call her mother. Her parents took her to hospital and called the police. The police went to the flat at 9:45 am and found the Applicant alone. The police notes state, “the entire unit was a mess, with broken glass all over the floor, ripped photographs, cupboard doors broken off cupboards, mirrors smashed and blood stains on the walls.”[27] He appeared to be drunk.
[26] G4, 72, RSFIC, [7].
[27] G4, 74, RTB 64-65.
On 26 October 2009, he was charged with assault occasioning actual bodily harm (DV) and two property damage offences.[28] On 27 October 2009, he appeared in Burwood Court and was remanded in custody.
[28] RTB, 82.
The Probation and Parole Service of NSW Corrections prepared a report for the criminal proceedings and interviewed the Applicant. According to the report, he was drinking with a workmate in the early hours of 26 October 2009, after a shift.[29] This man told him that he was or had been in a relationship with OT. This triggered the Applicant. He claims not to remember anything until he awoke in the police cells.[30]
[29] RTB, 2.
[30] It is also stated in the Report that he remarried his former wife in “September” 2009, but this cannot be correct unless he was still living with OT at the time of the incident in October 2009: Ibid.
On 4 November 2009, he appeared for sentencing in the Burwood Local Court. He was sentenced to 12 months imprisonment with a non-parole period of nine months. The Court’s sentencing remarks are not before the Tribunal. On 16 December 2009, his non-parole period was reduced from nine to six months by the Paramatta District Court.[31] According to the report, he had pleaded guilty, it was his first time in custody, and there was a need for a longer period of supervision to deal with anger management and alcohol abuse. The judge stated:
[T]his was pretty low level, gutless conduct. Any repetition and you know the outcome and while you are on parole I think you should address your alcohol and anger management issues.[32]
[31] G4, 30.
[32] G4, 63.
The file notes provided by Corrective Services show that this was a time of reckoning for the Applicant, in terms of his relationship with his wife and OT. A perusal of Reception Centre notes suggests that OT was intent on continuing the relationship. The fact that OT may have wanted the relationship to continue does not undercut or detract from the gravity of his offending. He was in custody from 26 October 2009 to 26 April 2010.[33]
[33] G4, 63, 86.
MO contacted the Reception Centre and was supportive. As for OT, she tried to call him on 12 November 2009 and again on 30 November 2011 to say that she was pregnant. The following day she attended with court documents including the provisional AVO. She was adamant that it did not prevent her from seeing him. She said that he might not realise this. She gave the prison officer a letter not in English and he refused to take it. She insisted. He consulted a senior officer, and it was decided not to receive the letter and she was advised to see a counsellor regarding the terms of the AVO. Unfortunately, she had a fall when she left the prison and was hospitalised. She contacted the Centre again, wanting to visit.
A file note dated 3 December 2009 suggests that the Applicant agreed to see OT as long as she did not cross paths with his wife. He wanted her to know that he was back with his wife, and he would give her support for the baby if it was his, but the relationship could never be the same again.[34] The following day, it was confirmed that the ADVO did not prevent visits from either woman. It was a matter for him as to who he wanted to see. During January and February, OT became increasingly desperate to see him. She harassed his ex-wife who took an ADVO out against her. She kept calling his wife. She contacted the Centre and impersonated her. She was finally banned as a visitor.[35] The Centre officer who made some of the report advised him he needed to be cruel to be kind, but without violence.[36]
[34] RTB, 54.
[35] RTB, 59.
[36] RTB, 55.
The Applicant made progress in prison. He admitted that he had a problem with getting angry when affected by alcohol and that he had done the wrong thing. He enrolled in a Small Business Cert 4 TAFE course.[37] In March 2010 he attended classes in maths and literacy.[38]
[37] RTB, 58.
[38] RTB, 60.
Common assault committed on 1 June 2011
The next DV incident occurred on 1 June 2011, just over a year after his release from prison. According to the police notes relating to this incident, he had taken to wearing sunglasses inside the house at night, talking to himself, laughing, and becoming “extremely happy”.[39] It is highly probable that he was taking drugs at this time, but the police were not able to confirm this. He got into an argument at breakfast time with his mother-in-law, throwing a baby basket and butter knife at her.[40] She suffered abrasions and minor bruising. He left the unit. She contacted the police and applied for an Apprehended Violence Order (AVO). He was arrested in the early hours of 2 June 2011. He appeared to be affected by alcohol, drugs or fatigue. On 15 September 2011, he appeared in the Burwood Local Court and received a fine of $400.[41]
[39] RTB, 147.
[40] RTB 146-147.
[41] G4, 30.
Common assault committed on 13 October 2016
After a hiatus of some five years, interrupted only by two traffic offences, he committed another offence against the person. He was working as a furniture removalist. MO’s parents were staying with the family. MO was pregnant with their fourth child. Their other children were aged two, five and nine at the time. An argument broke out around dinner time between the Applicant and MO. His father-in-law told him to “shut up”. This led to a physical confrontation. MO was injured attempting to separate the men. The police notes record that he punched her in the face, but it is not clear whether this was an accidental blow or deliberate. These offences were committed in full view of the Applicant’s three children. He then left the unit. The police were summoned and arrested him outside the unit complex. He was charged with common assault. On 23 January 2017, he was convicted by the Bankstown Local Court and sentenced to a 9-month good behaviour bond.
2020 to 2021
In early 2020, his marriage collapsed, and he left the family home.[42] In March 2020, MO applied for an ADVO, with the assistance of a solicitor from the Domestic Violence Unit, listing all her children as persons in need of protection (PINOPs).[43] Unfortunately, there is no copy of the Order before the Tribunal, but it appears that he breached the AVO conditions on at least three occasions in April 2020, and once more in June 2020.[44]
[42] RTB, 67.
[43] RTB, 113.
[44] Ibid.
On 18 April 2020 he went to his former home. He made threats against his wife and children.[45] He was arrested and charged on two counts of stalk/intimidate intend fear and one count of contravene prohibition/restriction in AVO (Domestic).[46] He was convicted of these offences on 25 June 2021[47] and sentenced to a 12-month ICO.[48] There are also recorded convictions for breaching bail on 25 April 2020 and 19 June 2020.[49]
[45] RTB 118-119.
[46] G4, 77.
[47] RTB, 87.
[48] G4, 51-52.
[49] RTB, 86.
By September 2020 he was back in custody. A psychological assessment file note made on 30 September 2020 records:
[NSPX] reported confusion over arrest and stated his mother-in-law has interfered in his relationship, very upset over not having any contact with his children due to a Type 2 AVO in place. [NSPX] was keen to talk and hence would mix up stories rather than providing a chronological account of events, but author was able to discern that his wife ended the relationship and kicked him out of the family unit but allowed [NSPX]’s cousin (who [NSPX] had taken in because he had been kicked out by his wife due to violence towards her) to remain, making [NSPX] think that they had commenced a relationship. [NSPX] said his sister visited his family whilst he was in gaol, and reported to [NSPX] that his wife is now in a relationship with a different man.
[NSPX] reported he ceased working to become his wife’s full time carer (year this occurred unclear) because she has severe epilepsy and MH issues. [NSPX] said she had a severe and life threatening seizure last year and seemed to change in her personality after that, also reported memory issues observed by him. [NSPX] said he is most concerned about how she is able to care for their four children (son 13, daughter 10, son 7, daughter 4) with her poor health. [NSPX] became teary when discussing his children, particularly his youngest daughter who he misses very much. [NSPX] said he was very worried about their safety during the COVID lockdown earlier in the year and said he breached the AVO in place when he went to the home to check on them. Otherwise very unclear regarding the events that have led to his placement in custody.[50]
[50] RTB, 67.
He told the Tribunal that he was set up by his parents-in-law and taken away from his family and sent to jail. When he was released, he wanted to see his children. He was alone and the more he worried about his family the more stress he felt.
Offending against AM
His relationship with AM was also turbulent. On 1 May 2021 he assaulted her. On 19 January 2022, he was convicted of common assault. He was sentenced to a 12-month CCO, commencing on 19 January 2022 and concluding on 18 January 2023.[51]
[51] G4, 29, 65.
On 4 October 2021, he assaulted her again.[52] On 29 June 2022, he pleaded guilty to assault occasioning actual bodily harm and contravene prohibition/restriction in AVO (Domestic). He was sentenced to 17 months imprisonment, with a non-parole period of 12 months and 22 days. There are no sentencing facts before the Tribunal, but the attack was described by the Court as “brutal”.[53]
[52] G4, 34; RTB, 99.
[53] G4, 50.
During the sentencing, he was represented by Mr Newham, solicitor. He appealed against his convictions and sought to withdraw his plea of guilty on the basis that Mr Newham had not explained the significance of pleading guilty. He was represented by Mr Fung. Mr Fung called Mr Newham as a witness. He gave evidence about the advice he had given to the Applicant.[54] The Applicant is recorded as saying of Mr Newham, “this is the first time I saw your face”.[55] On 20 October 2022, the appeal was dismissed by the District Court.
[54] G4, 39.
[55] G4, 36.
From the time that he was arrested for the offending on 19 April 2020, he was in and out of custody, as shown by records maintained by the NSW Department of Corrective Services.[56] On 4 October 2021 he was taken into custody for the offence relating to AM. The Corrective Service records show that he has been on remand, in prison, or in detention since 4 October 2021.[57]
[56] RTB, 64, 65.
[57] RTB, 64.
His offending on 4 October 2021 also constituted a breach of the ICO imposed on 25 June 2021. On 19 October 2021, the New South Wales Parole Authority revoked his ICO. He was ordered to serve the remaining eight months, three weeks and one day of those sentences in custody.[58]
[58] From Delegate’s decision [27]: G2, 12.
His driving record was the subject of cross-examination. There are multiple entries.[59] He said that not all the offences were his. On some occasions, other family members were driving. Sometimes he just paid the fine. Some of the offences are serious. He has four driving convictions, including driving while suspended, driving while disqualified, driving with middle range PCA, and driving with illicit drugs present.
[59] RTB, 76-80.
He also has some recorded incidents while in custody and detention. At the hearing, he was advised that he did not need to provide any answers that might tend to incriminate him. Mr Goodwin referred to an incident on 29 May 2022 where he was alleged to have damaged property valued at $400.[60] He said that he reported the damage, and he was not responsible for it.
[60] G4, 139
There was an incident in immigration detention where a weapon was found behind the bedspace in a room he occupied. It was an object approximately 22 centimetres long and sharpened at one end, known colloquially as a “shiv”.[61] He denied any knowledge of this object, saying that he had only recently been transferred to the room.
[61] G4, 158.
There were a few other incidents involving assaultive behaviour which he either could not remember,[62] or was defending himself, that latter involving a fracas at the dinner line-up.[63]
[62] G4, 160, G4, 161.
[63] RSTB, 67.
CONSIDERATION
The Tribunal has carefully considered the Applicant’s criminal record, including police notes and, where available, sentencing remarks. The Applicant has served three sentences of imprisonment for domestic violence offending, in 2009, 2020 and 2022. His offences include numerous breaches of apprehended violence orders, consuming very significant resources in policing and court time. The victims of his offending include his wife, his de facto partner, a girlfriend, and other family members, including his children and parents-in-law. Both MO and OT were pregnant at the time the Applicant assaulted them.
The NCCHC records are referred to above.[64] It reveals domestic violence convictions for a multiplicity of offences. The offences are serious and have resulted in three separate periods of imprisonment.
[64] G4, 28.
His criminal record points unambiguously to a conclusion that three of the primary considerations under the Direction are firmly against revocation. These considerations are the Protection of the Australian Community (PC1), Family Violence (PC2) and the Expectations of the Australian Community (PC5). These primary considerations weigh heavily in this case because of the extent and context of his offending. The record establishes a clear pattern of offending behaviour.
The Respondent concedes that some of the considerations may point in favour of revocation. Two of these considerations (Ties to Australia (PC3) and Best interests of Minor Children (PC4)) are primary considerations. The Respondent also concedes that the impediments he may face if removed to Tonga provide some ground for revoking the decision (OC2). Other considerations mentioned in the Direction, specifically OC1, OC3, and OC4, are not relevant to this review.[65]
[65] These include: the Legal consequences of decision under section 501 or 501CA (OC1); the Impact on victims (OC3); and the Impact on Australian business interests (OC4).
The task for the Tribunal is to determine whether the cumulative effect of those factors weighing in favour of revocation constitute “another reason” why the visa cancellation should be revoked.
The Applicant was examined extensively about each of the minor children affected by the decision. He spoke with obvious pride about his oldest son. He said that he loved his son very much, that he looked up to him and respected him, and that he was his “best friend”. He said his son was a very good boy and that he had a picture of him in Parliament, with the coat and carrying a mace. He said that he had not spoken to him since 2019. Their relationship was not as strong since they had not spoken for such a long time.
He also spoke about his 13-year-old daughter. She was smart and he loved her more than anything. As with his oldest son, he had not spoken with her since 2019. The same applied to each of the younger children. He said that he had not had any meaningful contact with his four children since 2019.
Mr Goodwin pressed the point that some of the offending occurred in front of the children.[66] He agreed that the children were listed as PINOPs under an AVO.[67] As regards OT and her child, he had not spoken to them for six years and he did not want to interfere in their lives. He did not know where they lived.
[66] See G4, 68-70, RTB 116, 118, 119.
[67] G4, 54.
He was asked whether he had taken steps to reconnect with his children. He said that it cost money to call from detention. He was depressed in the detention centre because he had a lot of problems there. He did not have a phone for the first three months. Even with his phone he felt stymied. He said he didn’t want to get it wrong. There was no direction telling him where to go. He was aware of the ADVO and did not want to breach it. He said that if allowed to stay in Australia, he intended to take steps to reconnect with his children.
There was no evidence from his two teenage children.
There is no evidence that he has contributed financially to the children since he left the family home in 2020, and prior to his relationship with AM.
He was asked about his wife’s capacity as a mother. He said he did not really know about her ability as a mother, because she had health issues.

He was also examined about his ties with Australia. This is relevant to PC3. He has lived in Australia since 14 June 2005, some 18 years. He was 28 years old when he arrived. He has been gainfully employed in the security industry and in other jobs such as furniture removals, forklift driving, and stacking shelves. He says that he has been unemployed since 2019 when he became a full-time carer for his wife. He says that his wife suffers from epilepsy, although there are no corroborative medical records before the Tribunal.
In terms of extended family, he has several relatives in Australia, including his mother, who recently arrived to take up residence. He has a brother and sister who live in Sydney and various uncles and aunts.[68] He referred to his sister’s oldest son, his nephew,[69] whom the Applicant believed was about 24 years old. Unfortunately, none of his relations provided references for him.
[68] G4, 106.
[69] G4, 104.
He also said that he had a child who passed away and is buried in Sydney. This is not a trivial matter, and the Tribunal acknowledges that it has some weight.
The Tribunal is aware that two individuals have provided character references. One of his referees is a fellow inmate with whom he shared a cell for one and a half months.[70] This person notes that the Applicant is of humble disposition and a family man, good in the work environment and works well with corrections officers.
[70] G4, 119.
The second referee, a Justice of the Peace, also provided a reference.[71] She attests to his kind nature. She writes:
I have known [NSPX], in a personal, professional and ongoing friendship capacity for approximately 11 years. During that time suffice to say I have seen the varying characteristics of [NSPX]. He has always shown me kindness and consideration and is always available to offer his assistance as needed.
In years past he has assisted my family with vacating and relocating homes on numerous occasions.
In all my encounters with [NSPX], I have witnessed an unparalleled level of commitment and an unwavering devotion to both his friends and his family; however his kind nature is frequently taken advantage of by those closest to him.
I have seldom come across an individual who exemplifies kindness, compassion, and care to the extent that [NSPX] does. He consistently demonstrates a genuine concern for the well‐being of those around him, always looking out for others and offering support when needed.
[71] G4, 167.
If this reference is taken at face value, it must give cause for pause. It is clearly at odds with the portrait painted in the criminal reports described above. An explanation may perhaps be found in the simple fact that the Applicant is not able to handle alcohol and has reached middle age without being able to do so. Unfortunately, it is his family that have carried the brunt of this weakness.
In terms of the impediments he may face, I am satisfied that he is in reasonable health for his age and does not suffer from any mental illness. He has at various times taken anti-depression medication (Mirtazapine), but he is not heavily dependent on it.[72] In terms of the culture of Tonga, he left the country at the age of 28, and may be expected to have cultural affinity with his home country. He said that he was no longer perfectly fluent in Tongan, but I am satisfied that he will not suffer any serious linguistic difficulty there. The extent of family connections still present in Tonga is somewhat unclear. In evidence he said that they were all in Australia. He has visited Tonga several times since coming to Australia and is not a stranger to his home country.[73]
[72] RTB, 171.
[73] G4, 133.
SYNTHESIS
In the present case, neither his relationship with his minor children, nor his extended family in Australia, nor the duration of his residence in Australia, nor the impediments that he may face if removed to Tonga, provide, individually or in combination, a counterweight to the combined force of the three primary considerations that favour non-revocation.
I place considerable store on the following factors.
(a)The relationship between the Applicant and his wife and his children has broken down irretrievably. He has not spoken to any of them for many years. He has taken no active steps to seek parenting orders for his children. His claim that he did not know where to start making such an application is not credible.
(b)I am not able to find that the best interests of his minor children would be served by restoring his visa. There is no evidence to suggest that the four children are not cared for at present. There is nothing to suggest that he would be capable of sharing the responsibilities of joint parenting. Indeed, the evidence is to the contrary. His wife and parents-in-law are estranged from him. He lacks the means to provide a caring environment for the arduous responsibilities of co-parenting. His own mother, who recently moved to Australia, is old and frail. It is uncertain that she would be able to provide much, if any, assistance to him.
(c)Although he has a large extended family in Australia, including his siblings and mother, his relationships with these family members do not appear to be strong. No family members came forward to speak for him.
(d)In terms of credibility, I found him to be a most unsatisfactory witness. I found his evidence to be dissembling and evasive. He had convenient memory lapses in relation to his most serious offending. In my view, his claims to have “blacked-out” during the critical moments of his offending is nothing more than a device to avoid confronting the painful realities of his own violence. He claimed not to remember receiving the formal warning letter from the Minister after his first stay in prison, and that, in any event, given his poor command of English, he would not have understood it. He claimed not to remember the solicitors that represented him before the magistrate and the District Court. He claimed that he had not understood his plea of guilty. He failed to disclose any of his criminal convictions on incoming arrival cards and said that he did not understand what the word “conviction” meant. Given his command of English this was, to say the least, not compelling. In a similar vein, his claim to have been his wife’s carer is neither credible nor supported by independent evidence.
(e)I consider that the level of remorse he demonstrated for his offending was unconvincing. He considered that his parents-in-law had set him up and he sought to diminish his behaviour towards each of his intimate partners. There is nothing to suggest that he has come to terms with the violent nature of his reactions when dealing with intimate partners. There is nothing to suggest that his weakness for alcohol has been remediated by his periods in prison. I did not consider his claims of remorse to be genuine.
(f)The Applicant came to Australia as a mature adult aged 28. He is familiar with the language and culture of his home country. His relationship with his wife provided the visa that gave him permanent residence. His violent tendencies show no sign of abating. His most recent offending was committed in his late forties. Rather than mellowing with age, his propensity for violence towards women has not diminished. The two custodial sentences, ICO and CCO, did not deter his most recent offending.
A second chance?
The Applicant asks for a second chance. He was given a second chance by the Minister in 2010 after his first period in prison. He appears to have been given several second chances by the courts with non-custodial sentencing options on his way to the most recent sentence of 17 months imprisonment.
As to his criminal record, he agreed that it was a long criminal history and involved serious offending. He wanted to apologise. He blamed himself. He stated that he “chose to do these mistakes” and went to jail as a result. He said that stress and alcohol were the main causes. He did not know the “system” or how to use it. He said he wanted to apologise and change everything. He did not think that he was a danger to the community. If he was given a second chance, he would become a better person for his family, and especially his children.
There is some evidence that he has taken steps towards rehabilitation. In March 2022, he completed a course entitled Getting Past Addiction.[74] He said that due to COVID restrictions, the program could not be facilitated in person. In April 2022, he attended a Domestic Violence program, involving six sessions over five days.[75] He said that it was run in a group setting and he learned how to control himself and to deal with stress in a domestic context. He believed that the course had helped him understand how to deal with family and the community. These steps were taken while on remand for the assault on AM.
[74] G4, 116.
[75] G4, 117.
Another reason?
The strongest point that can be made for revoking the mandatory cancellation is that the Applicant will suffer both emotionally and financially upon his return to Tonga. It is not clear when he is likely to have physical contact with his children. The Tribunal does not doubt or diminish the very real emotional pain that such a separation will entail, not only to the Applicant and, perhaps, his children. He told the Tribunal, “My heart is crying … because I haven’t seen my kids for almost five years now”. He also said that he had no hope if he had to go back to Tonga. He did not know where to stay. Even his mother was in Australia. He also raised a fear of harm arising out of the recent volcanic eruption and tsunami event in Tonga.
The Tribunal is not without sympathy for the Applicant. Yet, his predicament is the consequence of his actions, involving serious domestic violence committed over many years. He has assaulted his wife and two other intimate partners. He has made threats against his wife and children. They are named as PINOPs in one of the AVOs that he breached. He has assaulted his father-in-law. He has served three terms of incarceration for such offending. His behaviour has been inexcusable. It is not remediated.
I am satisfied that the best interests of minor children affected by the decision and the strength, nature and duration of ties to the community do not provide a reason for setting aside the reviewable decision.
CONCLUSION
The three primary considerations (PC1, PC2 and PC5) standing for non-revocation are entirely dominant in this case. There is nothing to be found in the materials before the Tribunal to counter their combined mass. The Tribunal cannot in good conscience provide further chances in the face of such a damning record.
To answer the question posed in paragraph [32] above, I am unable to discern in the evidence presented to the Tribunal, any factor or combination of factors to counter the combined effect of the dominating three primary considerations. I therefore find that there is not another reason why the original decision should be revoked.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 15 June 2023 not to revoke the mandatory cancellation of the Applicant’s visa is affirmed.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.........[SGD]...............................................................
Associate
Dated: 1 September 2023

Date(s) of hearing: 21 and 23 August 2023

Applicant: In person

Solicitors for the Respondent: Mr T. Goodwin, Australian Government Solicitor

Date(s) of hearing:	21 and 23 August 2023
Applicant:	In person
Solicitors for the Respondent:	Mr T. Goodwin, Australian Government Solicitor