Poloai and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 3100

Poloai and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3100 (12 September 2023)

Division:GENERAL DIVISION

File Number:          2023/4367

Re:Benjamin Poloai

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Roger Maguire

Date of Decision:               12 September 2023

Date of Written Reasons:      3 October 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 20 June 2023 to not revoke the cancellation of the Applicant's visa.

.................................[SGD]...................................

Member Roger Maguire

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2019] FCA 500
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41.
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 99

REASONS FOR DECISION

Member Roger Maguire

12 September 2023

INTRODUCTION

1. By application made on 21 June 2023 the Applicant seeks the review of a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent”) made on 20 June 2023 pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke a decision under s 501(3A) of the Act to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the Visa”).

2. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (“the Regulation”) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test” or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.

3. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under

   
   

   s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:

   7For the purposes of the character test, a person has a substantial criminal record if:

   ...

   (c)the person has been sentenced to a term of imprisonment of 12 months or more;...

4. The term “imprisonment” is defined to include any form of punitive detention in a facility or institution: s 501(12) of the Act.

5. The Applicant is a 37 year old citizen of New Zealand. His Australian Criminal Intelligence Commission Check Results Report (CRR) discloses that he has a varied criminal history in Australia[1] which can be summarised as follows:

   [1] Exhibit G1, pp 46-47.

Court	Date	Offence	Sentence
Queensland Magistrates Court	January 2022	Contravention of domestic violence order	Conviction recorded Not further punished
Queensland Supreme Court	October 2021	Acts intended to cause GBH or transmit serious disease – domestic violence offence	Conviction recorded Imprisonment: 6 years 6 months
		Enter dwelling with intent by break uses/threatens violence whilst armed damages property – domestic violence offence Enter/is in dwelling and commit indictable offence – domestic violence offence	Conviction recorded Not further punished
Queensland Magistrates Court	April 2016	Assault or obstruct police officer	No conviction recorded Fined: $600
Queensland Magistrates Court	February 2011	Commit public nuisance Assault or obstruct police officer	No conviction recorded Fined: $400

1. The CRR discloses that on 21 October 2021 in Supreme Court of Queensland at Brisbane, the Applicant was convicted of ‘acts intended to cause GBH or transmit serious disease – domestic violence offence’ and sentenced to 6 years and 6 months of imprisonment (“index offending”). On the same day he was also convicted for the offence of ‘Enter dwelling with intent by break uses/ threatens violence whilst armed damages property - Domestic violence offence’ however was not punished any further. This sentencing led to the mandatory cancellation of the Applicant’s visa on 18 March 2022 pursuant to s 501(3A) of the Act.[2] Notice of this decision was given to the Applicant by hand on 18 March 2022.

   [2] Exhibit G1, pp 71-76.

2. In accordance with reg 2.52(2)(b) of the Regulation the Applicant was invited in accordance with s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister within the period and in the manner specified.[3]

   [3] G1, pp 79-86.

3. On 20 June 2023, a delegate of the Respondent, acting pursuant to s 501CA(4) of the Act, decided not to revoke the visa cancellation decision made under s 501(3A) of the Act.[4] The Applicant was notified of this decision by email on 20 June 2023, and the Applicant made the present application to this Tribunal for a review of that decision.[5] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.

   [4] G1, pp 11-12.

   [5] G1, pp 4-9.

4. By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with s 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day was 12 September 2023. It was therefore open to the Tribunal to make a decision prior to midnight, on that date.

   ISSUES

5. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   4The 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.

6. The Applicant has made the representations required by s 501CA(4)(a) of the Act. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which the Tribunal is required to read, identify, understand and evaluate.[6] 

   [6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].

7. If the Tribunal exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Tribunal must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Tribunal's personal or specialised knowledge or by reference to that which is commonly known. It is open to the Tribunal to adopt the accumulated knowledge of the Department.[7]

   [7] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]-[20].

8. As provided in s 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:

   ·whether the Applicant passes the character test; and, if not,

   ·whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.

9. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.

   DOES THE APPLICANT PASS THE CHARACTER TEST?

10. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, s 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.

11. The evidence referred to above clearly establishes that the Applicant has a substantial criminal record within the meaning of s 501(6)(a) of Act having regard to s 501(7)(c) of the Act and the Tribunal finds that he does not pass the character test,[8] and therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    [8]  As was conceded by the Applicant in the hearing Transcript Day 1 p 4 lines 31-32.

12. The remaining question therefore is found in s 501CA(4)(b)(ii) of the Act, namely whether there is another reason why the original decision should be revoked.

    Is there another reason for the revocation of the cancellation of the Applicant’s Visa?

    Ministerial Direction No. 99

13. In determining whether there is another reason to revoke the mandatory cancellation, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 99”) has application.[9] The Direction provides guidance for decision-makers in making this determination.

    [9] On 3 March 2023, the former applicable direction, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 99.

14. Relevantly, the Direction states that:[10]

    “Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”

    [10] Direction No 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction/ Direction 99”), page 5, Part 2, 6 – Making a decision.

    .

15. The principles that are found in paragraph 5.2 of the Direction are as follows:

    1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    5With 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.

    6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(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 measurable risk of causing physical harm to the Australian community.

16. Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

17. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

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

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

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

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

    (5)expectations of the Australian community.

18. Paragraph 9(1) of the Direction sets out four Other Considerations which must be taken into account. These considerations are:

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

19. In considering issues of family violence, regard must be had to both s 5G of the Act which broadly defines “Relationships and family members”, as well as para. 4(1) of the Direction which defines “member of the person’s family”, noting that both definitions are inclusive.

20. Section 5G of the Act is as follows:

    5G  Relationships and family members

    1For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.

    2For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following:

    (a)a de facto partner of the person;

    (b)someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;

    (c)anyone else who would be a member of the person’s family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person.

    This does not limit who is a member of a person’s family or relative of a person.

21. Para. 4(1) of the Direction which defines “member of the person’s family” includes present and former intimate partners:

    member of the person's family, for the purposes of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.

22. The Tribunal notes the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[11]

    “…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply”.

    [11] [2018] FCA 594 at [23].

23. The Tribunal now turns to addressing these considerations.

    Documentary evidence before the Tribunal

24. In regard to his index offending, the Applicant was sentenced on the basis of the Statement of Agreed Facts (SOAF) which was Exhibit 1 before Brown J, and which is before this Tribunal[12]. The Tribunal begins with a consideration of it and the transcript[13] of proceedings in the Supreme Court of Queensland on the 21st of October 2021, when the applicant was dealt with for four offences each of which carried a maximum penalty of life imprisonment, and all of which were committed in breach of a domestic violence order.  Specifically the charges described by the sentencing judge were Burglary by breaking while armed, with property damage (Domestic Violence offence); Malicious act with intent (Domestic Violence offence); and two counts of Burglary and commit indictable offence (Domestic Life imprisonment Violence offence). The offences occurred at premises occupied by Ms L and her new partner who shall be referred to as Mr P, and were committed in the presence of Ms L and her and the Applicant’s four children, shall be referred to as T,R,J, and B, and  were aged, 14, 12, 10, and 7 at the time, as well as Ms L’s new baby V, born 5 days earlier.

    [12] R2, p 86-92.

    [13] G1, pp 49-54.

1. Extracts of the SOAF quoted below have been altered by the Tribunal to protect the identities of Mr P and Ms L, and a neighbour who is referred to as Mr N. Use of bold font is Tribunal added emphasis.

2. Extracts of the SOAF include:

   4. There is a history of domestic violence between [Ms L] and the defendant. A protection order was made on 7 January 2020 in the Magistrates Court at Beenleigh. It contained the mandatory good behaviour condition as well as conditions that the respondent not locate the aggrieved, approach within 100 metres of where she lives, and not possess weapons….

   7. On 7 October 2020, the day after Ms L gave birth, the defendant told her that he knew where she resided. This concerned Ms L.

   8. On 11 October 2020, Ms L spent the morning with Mr P and all of her children. She drove her sons home to their father’s residence at Logan Reserve at approximately 1pm. The defendant appeared to be in good spirits.

   9. The defendant and his two sons attended a gathering at a friend’s house to watch the All Blacks play the Wallabies. The defendant consumed approximately seven ‘tallies’ of Hollandier beer throughout the afternoon.

   10. When they arrived home after dark, the defendant appeared to be ‘drunk’ and questioned his sons about Mr P. This occurred whenever the defendant was ‘drunk’.

   11. The three of them were in the dining room when the defendant asked his sons if they liked Mr P. As he had done on previous occasions, R lied and said ‘no’ because he did not want to hurt his father’s feelings. The defendant accused R of lying.

   12. At least on two further occasions, the defendant asked his sons whether they liked Mr P. The more he spoke about Mr P, the angrier he became until he eventually told his sons he wanted to murder Mr P.

   13. He told his sons he had been waiting a long time ‘for this night’ and was going to try to kill him.

   14. All three of them went into the ‘playroom’ and the defendant told his sons that he loved them, but they would never see him again. R and B were crying. Mr P said that no one loved him. R tried to calm down the defendant and told him that they still loved him.

   15. The defendant walked into the kitchen to obtain a knife. He asked R to find the knife sharpener. R responded that he did not know where it was. He heard the sounds of two knives being sharpened on each other.

   16. The defendant re-joined his sons and told them ‘no one messes with our family’. The defendant stabbed the dining room table with both knives. He told his sons, who were still crying, that they were ‘men’ and ‘you don’t cry’ and ‘you have to deal with what’s happened’.

   17. The defendant walked down the hallway and told R and B to follow him, which they did because they were afraid. The defendant stabbed the knives into the wall and said that he had been ‘waiting for this night’ to kill Mr P.

   18. The defendant was crying and sounded angry. He asked his sons whether ‘you’re coming with me or going to the neighbour’s house’. R told his father they wanted to go to the neighbour’s house.

   19. R wanted to get his blanket so that he could hide his mobile phone in it and contact his mother to warn her. But the defendant told his sons they could come with him in the car. R begged his father to leave them behind,

   20. R and B ran to the neighbour’s house and knocked on the door. Both boys were crying and very distraught. The defendant had told them ‘it would be the last time we saw him’.

   21. At about 8:33pm, R phoned his mother and warned her that the defendant was on his way to her residence with a knife. When she got off the phone, Mr P asked Ms L to call the police. But there was no time.

   22. At 8:36pm, CCTV footage inside the townhouse complex, where Ms L and her family resided, captured the defendant driving his dark grey Kluger vehicle at speed towards the front of the townhouse.

   23. At this time, Ms L, Mr P, T J, and baby V were in the living room area, eating dinner.

   Count 1: Burglary, by breaking, while armed, with damage (Domestic Violence offence)

   24. The front door ‘went bang’ and smashed open, causing damage to the door and the wood around the locking mechanisms.

   25. Ms L, who was standing near Mr P, saw the defendant, armed with two knives, charge down the hallway towards Mr P.

   Count 2: Malicious act with intent (Domestic Violence offence)

   26. The defendant had one knife in each hand, with 20cm blades pointed straight ahead, and yelled, “/ am going to fucking kill you”. Mr P ran upstairs, and the defendant chased him.

   27. As this occurred, Ms L picked up the baby and handed her to T, and told her to run. T and J ran from the townhouse with the baby.

   28. Ms L heard the defendant yelling, “Fuck you, I am going to kill you", over and over.

   29. J ran back towards the townhouse crying. Ms L grabbed her and they both ran away from the townhouse. Ms L screamed, “He has got a knife, he has got a knife, someone help, someone help She saw neighbours coming out of their townhouses and yelled, “Someone call the cops, call the cops".

   30. Meanwhile upstairs, Mr P ran into the master bedroom and closed the door. The defendant attempted to kick it in. Mr P yelled, “Stop it, my daughter is here, please stop it’. The defendant responded, “Fuck you, I will kill you, fuck you cunt, you got my wife"

   31. The defendant kicked a hole in the middle of the bedroom door with his foot, damaging it. Mr P stepped back from the door and the defendant entered the bedroom, grabbed Mr P by the throat with his left hand and held one of the knives in his right hand.

   32. Mr P said, “Stop, stop, the kids are here”. The defendant responded, “Fuck you cunt, I want to kill you”.

   33. The defendant continued to hold onto Mr P’s throat and held the knife towards him. The defendant swung the knife towards Mr P’s stomach. As he did so, Mr P jumped back, and the blade missed his stomach. If he had not moved, the blade would have penetrated his stomach.

   34. As the defendant repositioned the knife to attempt a second swing, Mr P grabbed the defendant’s right hand with both of his hands and removed the knife from the defendant’s grip. The defendant released his hold on Mr P’s throat and Mr P ran downstairs with the knife.

   35. Mr P ran out of the townhouse, followed by the defendant, at 8:38pm. Mr P did not know where Ms L and the children had gone. He was still holding the knife, which was pointed away from the defendant.

   36. A neighbour Mr N, who heard Ms L’s screams for help, approached townhouse and saw Mr P holding the knife but observed that the defendant appeared to be the aggressor. Mr P was trying to move away from the defendant and was concerned that his baby might still be in the townhouse.

   37. The defendant yelled, “If your baby is in there, I am going to kill her”, and he approached the townhouse.

   38. Mr N told the defendant, “Man, you’re not going into the house”. The defendant replied, “You wanna mess with me, let’s go”.

   39. Mr N attempted to tackle the defendant. They both threw punches at each other, which missed. The defendant grabbed Mr N in a ‘bear hug’ and then a headlock, The defendant then put Mr N in a headlock. Both ripped each other’s shirts. At this time, Mr N smelled the strong odour of alcohol on the defendant.

   40. The altercation was captured on the CCTV footage at 8:39pm.

   41. Mr P discarded the knife in a neighbour’s garden and ran to Mr N’s aid. He struck the defendant in the back of the head in an attempt to get the defendant to release Mr N’s head. The defendant released his grip on Mr N and said to Mr P “I will kill you and I will kill the kid”.

   42. Mr P walked backwards away from the defendant who continued to yell at Mr P.

   Count 3: Burglary and commit indictable offence (Domestic Violence offence)

   43. At 8:41pm, the defendant is captured on CCTV footage re-entering the townhouse. He can be seen picking up a television and throwing it and then exiting the townhouse.

   44. The defendant then chased Mr P up the road inside the complex. When he could not catch Mr P, he stopped and walked back towards the townhouse. He approached the doorway area, appeared to pick something up and throw it inside the townhouse before leaving again.

   45. At 8:43pm, the defendant is captured walking towards Mr N in an aggressive manner with his arms outstretched. Mr N pushed him away and put up his fists. The defendant’s attention was drawn to Mr P causing him to turn around and walk back towards Mr P. His attention is then drawn back to Mr N. He approached Mr N and they both pushed each other. The defendant then walked back towards Mr P.

   Count 4: Burglary and commit indictable offence (Domestic Violence offence)

   46. At 8.45pm, the defendant is captured re-entering the townhouse. He can be seen walking up the stairs through the silhouetted window.

   47. The defendant picked up an LG flatscreen television and threw it out the window onto the concrete ground below. As police drove down the road inside the complex towards the townhouse, further items of furniture and other property were thrown out of the window.

   Arrest and statements of offender

   48. Senior Constable Jay Shields and Constable Dylan Young entered the townhouse and observed multiple damaged and destroyed home furnishings and other items scattered across the floor of the townhouse.

   49. They located the defendant in the rear courtyard of the townhouse.

   50. The defendant told police that he was “fucken wasted bro, I’m just fucken angry man ... I want to kill somebody”. He said he wanted to have a ‘one on one’ with the defendant, ‘smash him’, ‘fuck him up’ and ‘kill this motherfucker’.

   51. Police arrested the defendant, handcuffed him and escorted him from the townhouse. When the defendant saw Mr P some distance away, he yelled, “You’re gunna get killed cunt.” He told police, “I just want to kill this motherfucker”. He then yelled out to Mr P again, “ [Mr P], you'll get yours motherfucker. I know where you live, I know where you work. You’re going to fucken die. I don’t give a fuck if I go to jail.”

   52. The defendant was placed in the back of a police vehicle but would not put his legs inside until police located his car keys. Senior Constable Shields searched the defendant’s vehicle for the car keys. As he did so, the defendant yelled, “There’s another knife on the passenger seat, you better grab it... You ’re lucky it didn't go into this motherfucker’s throat.”

   53. The defendant further told police, ‘''Everything just hit my head and all I thought about was killing this cunt and it’s still there, I want to kill this motherfucker. ” He then directed his attention to Mr P, “I’ll get you bro, I’ll get you [Mr P] you fucken piece of shit, you fucken dog. I know heaps of cunts at Richlands. You’re going to fucken get it”. The defendant said ‘this has been raging in me for fucken ages’. He yelled at Mr P again, “You better find somewhere to live safe soon. You’re fucken marked.” The defendant asked police to ‘let me have him’.

   54. The defendant got out of the police vehicle and struggled with police to try to get to Mr P.  Police took the defendant to the ground and held him there. The defendant said, “The knives weren’t for anybody else except for him [Mr P]. ”

   55. When police asked the defendant what his intention was with the knives, he replied, “Kill him. I’m not denying shit bro. That’s what I wanted to do, I wanted to come and fucken get him”. Police caution the defendant and provide him with his right to silence.

   56. The defendant told police that he had consumed about seven ‘tallies’ of beer throughout the day and had ‘jumped in the car, drove here, drunk as fuck’. He said that his intention was to ‘fucken kill’. “I was stupid in love with this bitch (Ms L) and all I want to do is kill him (Mr P).

   57. The defendant was placed in the back of a police van and transported to the Richlands Watchouse.

   58. At 10:26pm, police analysed a specimen of the defendant’s breath and the concentration of alcohol was 0.099 grams of alcohol in 210 litres of breath.

3. In the course of her sentencing remarks[14], Brown J made a number of noteworthy observations:

   “It was by sheer luck that you did not inflict serious injuries[15]

   …

   You caused great trauma that night to a lot of lives, and I note the victim impact statement of the ex-partner and the dislocation and the psychological effect that your offending has had. I wonder whether your children will escape the terror that they felt that night. I note that you acknowledged when talking to the psychologist that your actions caused them harm, which shows some insight into your offending[16]

   …

   The aggravating feature of your offending is that they are domestic violence offences[17]

   …

   Relationships are the hardest things that many of us go through in life, and we often end up feeling betrayed and hurt. But that does not entitle anyone to act on their anger and hurt in a violent way as you did. That is one of the reasons why the legislature have put in place the particular mechanism to provide that domestic violence offences are an aggravating feature because they are not accepted by the community. Fortunately for you, the injuries – physical injuries that were inflicted that night were only superficial injuries, but, as has been submitted by the Crown and is evidence by the victim impact statement, considerable psychological injury has also been inflicted.[18]

   You went that night armed with knives which you had sharpened which, again, makes the nature of your offending that much more serious given the threats that it posed that you were armed with knives. Deterrence and denunciation are both significant factors that I have to take into account in sentencing you today. Deterrence to you from committing an offence like this again, and also deterrence to the general community from committing similar offences, and denunciation by the community of the sort of conduct in which you were engaged in which simply is not accepted by our community[19].”

   [14] G1, p 49.

   [15] Ibid, p 51 lines 6-7.

   [16] Ibid, lines 25-29.

   [17] Ibid, lines 33-34.

   [18] G1, p 51, lines 36-44.

   [19] Ibid p 51, line 46, p 52, line 6.

4. The Tribunal has also had regard for the victim impact statement[20] provided by Mr P, which provides great insight into the full extent of the suffering caused by the Applicant’s offending. Mr P appears to have taken the Applicant’s parting threats quite seriously, and acted to protect himself and those under his care from the risk of those threats being carried out. He had to take stress leave and long service leave and ultimately leave his employer of 12 years, relocate the family, and have the children change schools, which led to their being out of school for the remainder of the term. He has become socially withdrawn, suffered nightmares, sleep disturbance, increased alcohol intake, and has flash backs and constant fear of a reoccurrence of such an episode. He has incurred considerable expense through this experience, well beyond the replacement cost of items damaged or destroyed by the Applicant.

   [20] R2 p 93.

   Family violence conduct

5. In evidence before the Tribunal[21], the Applicant conceded that Ms L is a member of his family for the purposes of the Family Violence provisions of the Direction, and the Tribunal so finds. It is self-evident that his children are also members of his family.

   [21] Transcript, p 4, lines 39-43.

6. In sentencing the Applicant for his index offending, Brown J took into account that the facts which gave rise to those offences also constituted contraventions of the extant DVO. The Tribunal notes that a specific charge of contravention of the domestic violence order based on those facts was dealt with in the Richlands Magistrates Court on 25 January 2022 and the Applicant was not further punished[22]. The convictions of 25 January 2022 and 21 October 2021 fall within paragraph 8.2 (2)(a) of the Direction, and thus enliven consideration of primary consideration 2. Family violence evidence relevant under paragraph 8.2 (2)(a) of the Direction is adequately discussed above and does not require further elaboration.

   [22] G1, p 47.

7. There is also a considerable body of evidence prepared by the Queensland Police Service which the Tribunal regards as an independent and authoritative source, and which indicates that the applicant has been involved in the perpetration of family violence on numerous occasions over a period of many years going back to 2006. This evidence was put to the Applicant during the course of the hearing by Mr. West, and the Applicant has been afforded procedural fairness in respect of it. This evidence falls within paragraph 8.2 (2)(b) of the Direction and also enlivens consideration of primary consideration 2.

8. There is evidence before the Tribunal that the Applicant's long history of family violence towards Ms L[23] began in 2006 when he grabbed her by the hair, pulled her out of a car and dragged her down the street. Ms L’s account of alleged family violence between 2006 and 2011 shall be referred to as “the historical allegations.” In 2011, Ms L told police:

   “Since this time, every time that Ben and I argue, he starts smashing up the house, throwing things at me. He has pushed me out of the house, locking the door and not letting me inside. He takes off in the car with the kids, at high speed and driving dangerously. I remember one time when I was driving, we had an argument, and he lifted up the handbrake lever, causing the car to slide sideways. He damages things in the house regularly, every month or so. Ben has said to me on several occasions that he will take the kids away from me. Ben says that he will take them to a better place and I will never see them. I feel that he will hurt or kill the children to get to me.

   Just before Christmas, in December 2010, we had an argument at which is our current address. We went to bed. I remember waking up with Ben was on top of me, with both hands around my neck. He was strangling me, I could not breathe. Whilst he was doing this, he was crying, saying, “I’m sorry.” I believe that he assaulted me at this time because I would not give him sex. Between Christmas and New Year in December 2010, I remember Ben and I were arguing in the car, outside of our house at The argument was about me kissing a guy. We were arguing outside, as my [redacted] was in our house. He also stated that he kissed a girl in New Zealand, about four years ago. At this time, he backhanded me in the face. This caused pain and I was dazed. Ben gets out of the car, and tells me “Get the fuck out of the car.” I said, “No.” I was extremely scared and knew if I went inside with him that he would assault me. I saw Ben go inside the house. I stayed in the car. I remember telling him that I did not want to be with him anymore. Ben comes out of the house a short time later and gets back in the car. He straight away pulls my hair, forcing my head down into his lap. I feel a sharp pain to my neck and realise that Ben has a knife to my neck.  I remember Ben say, “If you fucking scream for help, I’ll kill your fucking too.” He said, “Why do you fucking do this to me, If I can’t have you no one can.” I was crying and begging him to stop, I thought I was going to die. I could feel the knife being pushed deeper into my neck. I repeatedly said, “I’m sorry.” I remember Ben say, “Are you going to stay with me.” I said “Yes” so that he would get the knife away from me. Ben then let go of me, at this time a friend of mine arrived. As she was getting out of the car, I remember him saying, “Don’t you fucking say anything or I will fucking kill you.” I was crying and shaking. I got out of the car and ran inside, crying.” My friend comes inside after me, asking what was wrong. I went out the back and told her what occurred. I saw him pack the kids in the car, swearing and yelling towards me. I was facing the house and I saw him point at me and mouth the words, “Don’t say fucking anything” Ben and the kids left the house in the car. My friend left a short time later. Ben arrives back with the kids 20 minutes later. Ben comes inside and is yelling at me. Ben was saying ‘Don’t you fucking say anything or I will fucking kill you. You are not going anywhere, I’ll lock you in the fucking house for ever.” Ben is from the Church of Latter Day Saints. Whilst Ben was threatening me, the Missionaries from Ben’s church arrived at the front door. Ben was whispering to me, “Don’t let them in or say anything or you will fucking get it.” I went to the door, crying. The Missionaries were asking why I was crying. Ben comes up behind me and told the Missionaries that I was alright and to go away. I invited the Missionary to come in. I thought that if they spoke with Ben they might be able to calm Ben down. The Missionary comes in and talks with Ben and me about God, and Ben is the way he is because he has not been going to Church. We explain everything that has been happening. Ben start crying. Ben then said that he needs help and starts apologising. The situation calms down. I moved out to a friend’s place. I stayed at the friend’s house overnight, and get back home before Ben went to work, so I would look after the kids. This arrangement did not last long. Ben started making threats towards me saying, “Have you been cheating on me.” This is because I have not been giving him any sex. He further states “If you don’t have sex with me I’m going to kill you. The only way you’re going home to New Zealand is in a coffin.” This is because I have told him that I am going home to New Zealand with the kids, and that I don’t love him anymore.”

   [Emphasis added]

   [23] R2, pp 23-25.

1. The above statement was made to police at the time of investigation of a late night incident at a hotel which led to the Applicant’s arrest and a further incident, summarised in police records as follows:[24]

   “On Thursday 14/01/2011, the aggrieved attended the family home with relatives. The respondent was home. All members consumed alcoholic drinks and all members attended [redacted], about midnight that night. Everything was going fine until the end of the night when the respondent has pushed the aggrieved, telling the aggrieved to "FUCK OFF". The aggrieved wished to leave the hotel and walked out to the car park, with family members. The respondent came out to the car park and yelled at the aggrieved, again telling her to "FUCK OFF". As she walked away, the respondent said words to the affect of "COME HERE SO I CAN SMASH YOUR FACE IN". After about half an hour of verbal abuse, the aggrieved sees police officers and heads towards them. An altercation occurs between police and the respondent and the respondent is arrested for other matters. The aggrieved went to the home address, [address redacted by the Tribunal]. About half an hour of arriving home, she receives a phone call from the respondent stating that he is out of police custody. About 20 minutes after this, the aggrieved hears a knock on the front door and bang on the garage and sees the respondent at the front door. Other persons at the address, open up the front door. The respondent walking down the hallway yelling "WHERE THE FUCK IS SHE". The aggrieved runs outside. The respondent starts yelling at her, telling her to get inside. The aggrieved refuses, as she fears that she is going to be assaulted, and tells the respondent "NO, BECAUSE YOU ARE GOING TO HURT ME". Respondent said words "OF COURSE, COME HERE SO I CAN PUNCH YOUR HEAD IN". The aggrieved leaves the scene with relatives. The respondent stays at home.”

   [Emphasis added]

   [24] R2, p 11.

2. When police attended at the home of the Applicant and Ms L, they recorded a number of observations:

   “Police attended in respect to a concern for welfare request by Police Communications. Police observed fresh blood on the front security door, on the carpet and in the front foyer area of the dwelling. The respondent was the only person home at that time and answered the door. The respondent invited the police into the house. police have observed blood in the lounge room area, hole in the lounge room door, hole in the door leading to the garage and small picture frames which had been smashed. The respondent was heavily intoxicated and was hard to understand due to this level of intoxication. The respondent, however, stated to police that he had punched the walls as a result of fighting with the aggrieved.

   …

   Concerns regarding mental health of; Child: Yes; Aggrieved: Yes; Respondent: Yes. There are concerns for the mental health of the child/children. There are concerns for the mental health of the aggrieved. There are concerns for the mental health of the respondent. No assault complaint was made.”

   [Emphasis added]

3. The incident of 14 January 2011 led to the first of a series of domestic violence orders one of which remains on foot against the Applicant and required that he not go within 100 metres of Ms L or the children.[25]

   [25] R2, p 11.

4. A further domestic violence order was sought following an incident family violence which occurred on 13 March 2016. Extracts from the Form DV1[26] Application for a Protection Order include the Applicant’s conduct witnessed by L’s mother which was verified by a police officer by statutory declaration:

   “On the 13/03/2016 Police have responded to reports of a Domestic disturbance at the job address. Upon arrival Police have observed extensive damage to the dwelling and a male (later identified as the respondent’s brother) physically restraining the respondent. Police have then assisted the male who resisted Police and continued to kick walls and the toilet door in an attempt to prevent being restrained before Police have managed to hand cuff the respondent

   …

   … all parties were drinking at the address during the evening when the respondent who was heavily intoxicated has started to become aggressive towards the aggrieved. [Redacted] stated that she had just finished putting her eldest grandson into bed and has heard the aggrieved scream and subsequently have entered the main bedroom. Upon entering the main bedroom [Redacted] stated she has seen the respondent holding the aggrieved down by placing his left hand around her throat and forcing her into a mattress. then stated she has attempted to grab the respondent’s arm in an attempt to have him let the aggrieved go to which he has physically resisted. The respondent has eventually then let go of the aggrieved who has then fled out of the bedroom and exited the dwelling and hidden down the street from the respondent. and the 4 children have also exited the dwelling as the respondent has then engaged in a severe physical outburst which has resulted in significant property damage to the entire house. This property damage included several holes in the walls of the house, the front and side door being ripped off, several glass windows and mirrors smashed and the main bedroom completely destroyed. Police have spoken to the aggrieved who has stated to Police that she is extremely fearful of the respondent and believes that one day he may try and kill her. The aggrieved stated that she fled the dwelling fearing that if the respondent grabbed hold of her again she would be assaulted severely. The aggrieved did not provide Police with very much information in relation to the incident as she was fearful of the respondent’s retaliation once released from Police custody. No assault complaint was forthcoming from the aggrieved. Police did offer emergency DV accommodation to the aggrieved and her children however she declined as she has an extensive family network to assist her.

   Police further spoke with the two eldest children who stated that Dad had become really angry and smashed the house up. They further stated that they were extremely scared of Dad especially when he threatened to hurt the eldest boy The aggrieved has stated to Police that she is extremely fearful of the respondent and did state that she thought the respondent would try and kill her some stage. Police observed the respondent to be extremely violent and based on this believe that a Domestic Violence Order is necessary for the aggrieves protection. …

   The respondent has physically assaulted the aggrieved in the presence of their four children whilst also causing significant property damage to the family home”

   [Emphasis added]

   [26]  R2 p 39 at 42-45.

5. The Applicant is a big man, 183 cm tall, and weighing 113 kilograms[27]. He told the Tribunal “I do have a lot of strength[28]”. When he obstructed police on this occasion, it required four police officers to restrain him:[29]

   “Constable Leanne BENJAMIN and Constable Cameron LACEY have attempted to handcuff the defendant to the front, the defendant has resisted by tensing up and pulling his arms away from police.

   The defendant was eventually handcuffed and walked to the front door of the house.

   The defendant has begun to act aggressively by growling and tensing up his body against the door frame. Police have used reasonable force to remove the defendant from the door way and restrained him on the ground.

   The defendant then got to his feet and to the door of the police vehicle where he has refused to get in the vehicle saying words to the effect ‘I’m not going to get in unless you mother fuckers get off”. The defendant has continued to struggle aggressively and tense up requiring four Police Officers to restrain him until a van crew could attend to convey him to the watch house.

   The defendant’s actions in tensing up and aggressively resisting, obstructed Constable Leanne BENJAMIN in the performance of her duties.”

   [Emphasis added]

   [27] A6, p 36.

   [28] Transcript, p 24, line 7.

   [29] R2 p 35; p 67; G1, p 47.

6. A further incident of family violence occurred on 26 December 2019, some two months after the Applicant and Ms L had separated. He arrived at her home at 7:00 AM unannounced seeking Christmas leftovers. He told her he missed her and became angry when she did not reciprocate the sentiment. He returned later that day after Ms L had taken the children to the Wet and Wild theme park. The DVO application made by police records that the following ensued:[30]

   “The aggrieved proceeded to go to Wet N Wild with her kids and returned to her residence at approximately 5:30pm on the same day. About 20 minutes after arriving home the aggrieved was leaving her address and as she opened her front door, she was met by the Respondent who was standing in the doorway. The aggrieved stated the Respondent had an angry look on his face and she became scared due to previous physical altercations between the Aggrieved and Respondent. The Respondent has grabbed the Aggrieved by the shirt as she tried to walk past him. The Respondent has attempted to pull the aggrieved into the house however she struggled causing her shirt to rip and for her to become topless. The aggrieved has then run into her neighbour’s house for help. The Respondent has begun to yell at the kids saying; “Hurry up and get in the fucking car.” The respondent has then walked across the street and approached the Aggrieved as their children were crying and screaming for him to leave her alone. The Respondent has told the Aggrieved; “Fuck you, you did all of this.” The respondent has then begun to throw multiple punches at the Aggrieved. The Aggrieved has managed to dodge the majority of punches however was struck by one punch which hit her in the back of the head. The occupants of the address have run to the garage to see what was happening and stopped the altercation. The Respondent has then walked across the road and sat in his car whilst the Aggrieved remained in the house calling police. Police officers arrived at the address at approximately 6:30pm and took up with the aggrieved and respondent independently. The aggrieved provided the above version to police officers. The aggrieved declined QAS services and did not wish to make a criminal complaint of assault against the Respondent. The Aggrieved further stated to police officers that she is extremely fearful of the Respondent.

   Upon taking up with the Respondent he provided a different version of events to police. The Respondent stated that he attended the Aggrieved address to discuss their relationship. Upon meeting the Aggrieved she has become scared and tried to run away. The respondent stated that he grabbed the Aggrieved shirt and pulled her towards himself aggressively so that they could talk but the Aggrieved bent over and her shirt came off. The Respondent stated the Aggrieved ran away to her neighbour’s house immediately afterwards and he denied punching her. Police officers believe it is necessary and desirable to offer the Aggrieved protection against the Respondent due to the seriousness of the alleged incident and element of physical violence as well as their being ongoing conflict between both parties.

   Police have concerns for the welfare of the aggrieved and her children and to prevent the future exposure of Domestic Violence in front of the children. The aggrieved stated that the marriage is now over.”

   [Emphasis added]

   [30] R2 p 50.

7. The Tribunal now turns to a consideration of the Applicant’s traffic history.

8. The Act defines “crime” in s 5 to include any offence. This means traffic offences are crimes, and traffic convictions are criminal convictions for the purposes of the Act.

9. There is evidence before the Tribunal that the Applicant incurred three criminal convictions in New Zealand in 2004[31], and that he gave a false answer on incoming passenger cards[32] on 10 April 2016 and 16 September 2018 which is an offence under s 234(1) of the Act which carries up to ten years imprisonment or 1,000 penalty units or both.

   [31] G1, p 57.

   [32] G1, pp 58-59.

10. The Applicant has also accumulated a considerable traffic history in Australia.  The Queensland Government Department of Transport and Main Roads Traffic Record of this Applicant[33] contains over 40 entries, and includes multiple warning letters and licence suspensions, as well as drink driving, unlicensed driving, expired licence, speeding, red light, stop sign, seat belt, and driving unsafe vehicle and driving a defective vehicle offences.

    [33] R2, pp 77-81.

11. The Tribunal has had regard for the assessment of the Queensland Corrective Services assessment that the Applicant is a low risk of re-offending, as well as his history of employment whilst incarcerated[34].

    [34] G1, pp 300-308.

12. In support of his request for revocation, the applicant filed a Personal Circumstances Form (PCF) dated 12 October 2022[35] which was largely blank and referred to his written statement[36]. He also provided a later statement[37] dated 29 March 2023 in which he stated that he had twice seen a psychologist or counsellor (it was unclear which) and had received certificates for video courses in Anger Management and Conflict Resolution, Parental Separation – Implications for the School, and Introduction to Drug and Alcohol Awareness. He had also attended Alcoholics Anonymous meetings via Zoom. He had struggled to find a domestic violence course. He had also been in touch with Circuit Breaker, but it was unclear if he had undertaken any course with that organisation.  After not having seen his children in over two years, he received a surprise visit from all four on 25 February 2023. He also mentioned that he had a new girlfriend who knew about his offending and was very supportive of him.

    [35] G1, p 128.

    [36] G1, pp 142-156.

    [37] G1, pp 540-541.

13. The Applicant set out his background in his first Statement of Issues, Facts and Contentions (SFIC)[38] from which the following summary is drawn.

    [38] A1.

14. The applicant is a 37 year old New Zealand citizen who arrived in Australia in late 2006 when he was 21 years old, and has been continuously employed since that date.

15. He met his future wife, the mother of his four children, who has been referred to as Ms L in 2004 prior to coming to Australia. They remained together for a period of 14 years, and were married in 2013, notwithstanding her previously confessed infidelity in 2011.

16. He arrived home from work one day in November 2019, and was devastated to find a note from Ms L to the effect that she had been in a relationship with her manager who shall be referred to as Mr P, and had left him and the children. He was left to cope with his own feelings as well as those of the children who felt abandoned, and were happy to stay with their father.

17. The Applicant acknowledged his traffic history in New Zealand, and that alcohol had played a part in his offending. This was also the case in 2011 when he offended about three weeks after Ms L disclosed her infidelity to him on Christmas Day 2010. This was at a time when he was under financial strain supporting not just his wife and child, but two sisters and a child of one of them who were all living at his home. He was also heavily intoxicated on the occasions of his 2016 offending and his 2020 offending. In 2020, in addition to his marriage breakdown and the burden of being a sole father and provider, the Applicant had greatly reduced work hours owing to the pandemic, and was facing consequential financial challenges. He nevertheless acknowledged that there was no excuse for his 2020 offending.

18. The Applicant described a very close knit relationship with his children and with his siblings and their respective families. Since January 2023 he had commenced a new relationship with a lady who shall be referred to as Ms PT.

19. He described how he had benefited from his participation in the Man Up support group, and he said he would continue rehabilitation with that group as well as other counselling if allowed to remain in Australia. He expressed concern that his removal from Australia would affect his relationship with his children tremendously.

20. Whilst in detention he had undertaken courses in anger management and conflict resolution, introduction to drug and alcohol awareness, and parental separation- Implications for the school.

21. The Applicant said that he had abstained from drugs and alcohol for the three years since his offending, and had noted improvements in his physical and mental health and outlook.

22. Whilst in Exhibit A1, he had contended that his offending had been committed against his wife's new partner who was not a family member, he abandoned this submission at the hearing and accepted that his wife and children had been present during his episode of family violence in 2020.

23. He submitted that he had very strong ties to Australia and listed relatives, friends, work associates and his employer, all of whom had provided letters of support for him.

24. The Applicant nominated 7 nephews and nieces as well as his own for children as being impacted by any decision that the Tribunal might make. He contended that his children had been hugely impacted by the situation and they were desperate to get back to how things used to be.

25. Regarding impediments to his return to New Zealand, the Applicant said he had only one sibling living there, his sister who has seven children of her own and struggles to support them. He expressed concern about his prospects of finding employment and his capacity to support his children financially.

26. The Applicant submitted that he was low risk of reoffending, had very close ties to Australia including employment, the best interests of his children militated in favour of his continuing presence in Australia, and he would face significant problems if removed to New Zealand including paternally and financially supporting his children.

27. With the exception of one sibling, a sister who resides in Auckland with her seven children, all of the Applicant's siblings live in Australia with their respective families.

28. In a further statement to the Tribunal[39] the Applicant had no recollection of the incidents of 13 March 2016 which led to his convictions of public nuisance and assault or obstruct a police officer, but said he was certain that he had not assaulted or hurt anybody.  He also denied the family violence history which Ms L had provided to police, and denied that he had punched her during the episode of 26 December 2019.

    [39] A2.

29. In a further response,[40] the Applicant described benefits of participation in the Man Up group, he acknowledged the severity of his offences and expressed remorse. He also said his two elder children were working and helping to support Ms L financially and caring for the younger siblings. He again stated that he was a low risk of reoffending and said:

    “…I do not want to ever put my children through that trauma again. My actions have had a very negative impact on my children. I have done courses to ensure that this will never happen again. I have been seeking help through the psychologist and the drug and alcohol counsellor. And I have a strong support group that will make a great deal of impact on myself.”

    [Emphasis added]

    [40] A3.

30. The Applicant also said that having electronic contact with his children was not the same as physical presence. He said contact with his children had been difficult, and he did not receive a letter from them until a year after his imprisonment. He said it would be extremely difficult for him to find any source of income in New Zealand, and wages were low there and rents were high and it would be extremely difficult for him to support himself.

    Letters of support

31. The Tribunal has had regard for the many letters of support[41] from family and friends prepared for his sentencing, and which were submitted at the time of reconsideration of the cancellation of his visa. These letters paint a picture of a devoted father who was very much supported by his friends and extended family.

    [41] A1, pp 262-292.

32. There are numerous letters and statements from Violet Lily Poloai the eldest sister of the Applicant[42].  She described a humble family upbringing in a religious household, being raised by a single mother of seven in a drug and alcohol free environment. She described how the Applicant has been the pillar of a large close family, and had demonstrated remorse and changed for the better, and said that he will live with her and her family if allowed to return to the community.

    [42] A21; G1, p 266, p 278, p 287.

1. Mr Elliott Claven, the Applicant's brother in law provided a signed and dated statement[43] in which he described the eagerness with which the Applicant’s children speak to him on the phone when they visit at his home. He said that the Applicant accepted responsibility for his actions, had written a letter of apology to his wife, and was deeply remorseful for his conduct. He had undertaken the Man Up course in an effort to curb his alcohol and relationship problems. He described how the Applicant was very close to his children as he had been a sole parent and caregiver for a period of time prior to his incarceration. He further said that the Applicant had been sober for three years and expressed a desire to manage his drinking. As a teacher, he was concerned that children from broken homes can struggle later in life and supported the Applicants being allowed to remain in Australia.

   [43] A23.

2. The Applicant’s youngest sibling, Shaylene Claven provided a statutory declaration[44] as well as an unsigned undated statement[45] in support of her brother. She said that the Applicant was the person who held her very close family together. She described an ongoing close and warm relationship with the Applicant including prison visits. She said the family was all ready to support him on his release, and that his previous employer was ready to take him back to work. She said that the Applicant had been under a lot of stress when his wife of 14 years cheated on him and gave birth to another man's baby. She has since had a second child. The Applicant’s children are not the priority in that household and they need the mental physical and financial support of their father. She described herself as a devout member of her church and committed to reinvolving the Applicant in church life. The Applicant had committed to staying sober, was a hard worker, and had been offered employment with his former employer. The Applicant had paid taxes and contributed to the community. She offered him support including accommodation.

   [44] A12.

   [45] A13.

3. The Applicant’s brother, Faleono Poloai, an Australian citizen, provided two letters[46] and a statutory declaration[47] dated 3 August 2023 in which he said that he understood the severity of his brother’s criminal charges. He described the Applicant as a good person and a good family provider. He said the Applicant was remorseful and embarrassed by his conduct and had said that he was willing to give up alcohol completely, and had completed the Man Up course whilst in detention, where he had also joined in church activities. He expressed confidence that his brother had changed, and was not a threat to the community.

   [46] G1, pp 273 and 289.

   [47] A18.

4. The Applicant’s partner, Ms PT provided two statements[48]. She said that she met the Applicant online in December 2022, and commenced a relationship with him in January of this year. She described the Applicant as a family orientated kind and honest man, and said that if he remains in Australia she is prepared to offer him accommodation and financial assistance. She said she understood the severity of his charges and that he was remorseful for his conduct. She said that she had witnessed positive changes in him in the time that she's known him and had discussed marriage and a family. She expressed confidence that he will not offend in future as he was not touching alcohol.

   [48] G1, p 613; A24.

5. A long term work colleague of the Applicant. Kayla Hudson, provided a signed statement[49] dated 12 July 2023. She spoke of his unwavering integrity, compassion, responsibility, honesty, and truthfulness. She said that he had a strong work ethic and commitment to excellence. He was deeply remorseful for his terrible mistake and she expressed confidence that he would continue to contribute positively to society.

   [49] A10

6. The Tribunal has also had regard for a letter[50] dated 26 June 2023 from Man Up, an online self-help organisation. The unsigned letter was attributed to Mr Sam Matekaure who gave evidence before the Tribunal. He stated that the Applicant had been giving support and advice to other men.

   [50] A11.

7. The Tribunal has also had regard for an undated letter from Emeline Poloai, a sister of the Applicant.[51] Ms Poloai said that the Applicant’s absence from family life had created a void in the family as he was the glue that kept it together. A range of family activities had ceased since his incarceration. She committed to helping him get back on his feet and giving him whatever support he needed. She said that he had provided financial and emotional support to the family.

   [51] A19.

8. The Tribunal has also had regard for an exchange of text messages[52] between the Applicant and his ex-wife in which she wrote to him “please babe, I don't want to live in fear anymore.”

   [52] A16.

9. The Tribunal has also had regard for a signed undated letter[53] from Barbara Poloai, the Applicant’s youngest sister.  She described a selfless humble person who had a hard time dealing with a cheating wife, and turned to alcohol to numb the pain. She said that he was not in his right mind when the incident happened and she was positive it was a one off episode.

   [53] A20.

10. The Tribunal has also had regard for a letter[54] dated 11 July 2023 from Mr Ahmad Wassim Ziadeh, who used to be a neighbour of the Applicant and was his work colleague for two years. He spoke glowingly of the Applicant's character and his role as a single father. He considered his offending was entirely out of character.

    [54] A5.

11. The Tribunal has also had regard for a letter[55] dated 12 July 2023, signed by Mr John Economou of CEVA Logistics. Mr Economou said he had employed the Applicant since 2015, and said he had never seen the Applicant demonstrate any type of aggression or anger. He described a respectful, courteous and gracious responsible person, and an integral part of his logistics team.

    [55] A9.

12. The Tribunal has also had regard for an unsigned undated[56] letter from Daniel Agatasi Tui, who has known the Applicant for 25 years as a close friend and former work colleague. He described the Applicant as a person of very good moral character, who operated with integrity. He was hard working dedicated and extremely reliable. He regarded him as a great father.

    [56] A7.

13. The Tribunal has also had regard for a Serco Individual Management Plan[57] dated 25 May 2023 regarding his time in the Brisbane ITA, and which recorded that he was in good health other than an occasional flare up of a gout condition.  He was also recorded as being polite towards staff, being respectful towards, and having no issues with fellow detainees and was well respected by them. Whilst in detention he remained in close contact with his children, partner and family. His general conduct was recorded as being respectful courteous cooperative and polite, and he maintained good personal hygiene. He was visited regularly by family members including his children. He was reported as being in constant contact with his sister in New Zealand. His behavioural symptom and nonaggression had made his integration into detention seamless.  He had shown good behaviour, and was compliant and respectful towards detainees and staff.

    [57] A4.

14. The Tribunal also has before it copies of Google searches[58] into the cost of living in New Zealand. The Tribunal notes that the report is that rents are high and to live comfortably in NZ family of four needs an income of $7648 per calendar month and a single person needs an income of about $4188 per calendar month.

    [58] A22.

15. The Tribunal has also had regard for a text exchange between the Applicant and his daughter T[59] an extract of which includes her statement:

    “I’m not sure how the kids feel at this point ….it still feels like a fresh wound. It’ll take a while for us to heal from what has happened…We forgive you but it’s hard to forget….We hope to never feel like this ever again.”

    [Emphasis added]

    [59] G1, p 357-358.

    EVIDENCE AT HEARING

16. The Applicant gave sworn evidence confirming the veracity of his communications to the Department and the Tribunal in the course of this proceeding. He also confirmed that his offending was accurately set out in the G documents[60] and the Respondent’s Statement of Facts, Issues and Contentions (SFIC)[61]. He also confirmed that he did not pass the character test[62], and Ms L is a member of his family for the purposes of the Direction[63].

    [60] G1.

    [61] R1.

    [62] Transcript, p 4, lines 32-33.

    [63] Transcript, p 4, lines 39-43.

    Cross Examination

17. The Applicant told Mr West that he had lived in Auckland and went to grade 9 or 10 at school. He worked stocking shelves while at school and later for a freight company loading and unloading containers.

18. He moved to Australia permanently in 2006, but had previously visited for a wedding. He has returned to New Zealand about four times since 2006 for birthdays weddings etc. He still has a sister in Auckland New Zealand. She has 7 children the eldest of whom is 21. He last spoke to his sister a couple of weeks ago. He has only spoken to her three times since entering detention on 10 October 2022.  If sent back to New Zealand he will contact her and let her know that he is back. He did not otherwise keep in touch with anyone in New Zealand.

19. He first met Ms L in 2004 and moved with her and their daughter T (who remains a New Zealand citizen) to Australia in November 2006. They initially lived with his aunt, her husband and two cousins. Since then he has had three more children with Ms L, and those children are Australian citizens.

20. The Applicant was referred to his statement in the G-Documents.[64] During 2010 Ms L had been thinking about being baptised as a Mormon, and they were abstaining from alcohol and sex for a period of time prior to the baptism. It had been planned that he would baptise her, but she changed her mind about proceeding with it.  Then on Christmas Day 2010, she told him she had been cheating on him, and they separated under one roof, but reconciled shortly before the incident in January 2011.

    [64] G1, p 144, [14]-[16].

21. The Applicant said that around 2017 his relationship with Ms L started falling apart as they were having tensions caused by financial difficulties, but these lessened after he got a new job.

22. His relationship with Ms L ended for good in 2019. He commenced a new relationship with PT, who is also a New Zealander, in January 2023, having first met her through a dating site around Christmas 2022. She has visited him quite a bit during his time in detention, but their relationship was mainly on line. His deportation would make this relationship rocky as her life is in Australia.  If returned to the community he will initially live with his eldest sister Violent, and then with PT.

23. The Applicant was referred to G-documents again and the offer of a job with a company, with whom he previously worked for two years.[65]  His working hours were substantially reduced in March 2020 due to the pandemic and was only getting four hours a fortnight. He had been working with that company when he committed the offences which led to his visa cancellation[66].

    [65] G1, p 100, [73].

    [66] Transcript, p 11, lines 26-28.

24. The Applicant said that he found a bigger culture of work-related alcohol consumption in Australia than in New Zealand. If released into the community he would be returning to the same work environment, but with a different mindset, and was not reverting to past habits. He was only going back to earn money and support his children.

25. He has done courses to address his alcohol use, including a relapse prevention plan referred to in the material.[67] He had offered ways to avoid alcohol consumption. It was put to him that returning to his prior employment was not consistent with his plan. The Applicant said that when he was arrested he had been drinking with other friends, not his work colleagues.[68]

    [67] G1, pp 567-588.

    [68] Transcript, p 13, lines 10-12.

26. The Applicant discussed his trade qualifications, being his forklift licence, and Certificates I and II in Warehousing, which he had obtained in Australia. He could use his skills in New Zealand.

27. The Applicant said that his children have been living with Ms L since he was incarcerated. He has not been able get in contact with his children. Their mother does not like them talking to him. Regular communication ceased after his request for revocation was refused. There are no formal parenting orders in respect of the children. His oldest daughter has her own phone, and can message him as she wishes.  He would try to communicate with three of his children via Facetime but his youngest does not have a phone.  He is prohibited from talking to Ms L, and had not been able to discuss arrangements for the children in the event that his visa is re-instated.  He had not really had contact with the children since his request for revocation was refused[69].

    [69] Transcript, p 14, lines 14-16.

28. The Applicant said that he started drinking alcohol when he began working in warehousing at the age of 16, and drank every weekend. He was referred to his statement in the G-Documents[70] and confirmed that he would drink 12 or more beers until he was falling asleep[71].

    [70] G1, p 149.

    [71] Transcript, p 15, lines 43-46.

29. Since moving to Australia the frequency of his drinking had not increased, but when he did drink he drank more heavily, blacking out on one in four occasions. There had been many occasions he had stopped drinking. When he was going to the gym, his “drinking went out the door”. He did not think he had a drinking problem. He just did not count his drinks, and used alcohol to try to hide his emotions.

30. He agreed with Mr West that it was easier to stay away from alcohol in prison and detention than it is in the community.

31. He had participated in the Man Up program and had the opportunity to participate before he went to prison.

32. The Applicant was questioned regarding the incident at the hotel in January 2011, and said that he did not have a complete memory of what had happened. He remembered dancing with a woman and Ms L intervened and he told her to fuck off, and pushed her away from him. He agreed that this was an act of family violence[72] and that his family violence was not confined to 2020, and what had been initially submitted by his former lawyers was not correct[73].

    [72] Transcript, p 17, lines 28-30.

    [73] Transcript, p 18, lines 25-39.

33. The Applicant was referred to a police report of the hotel incident of January 2011 set out above.[74]  He could not recall anything that happened between the hotel and the watchhouse. He accepted that what the police recorded was more accurate than what he could recall. He was then referred to a Protection Order Application which contained Ms L’s account of this episode that led to an uncontested protection order.[75] He accepted that she was very scared by his conduct that night[76]. He could not remember, but did not deny what was recorded. He was still intoxicated when he was released, and did not remember how he got home or what happened after he did.

    [74] R2, p 62.

    [75] R2, p 25.

    [76] Transcript, p 21, lines 18-20.

34. The Applicant was questioned in relation to events of 13 March 2016 and an Obstruct Police charge. He said there had been a verbal altercation with Ms L’s brothers who were living for free under his roof.  He admitted damaging the house that night, punching holes in walls and breaking mirrors.  He said he had “damaged that place up pretty bad”. Although he could not remember the events, he said nobody was hurt, and he denied grabbing Ms L by the throat.  He said that there was no evidence other than from Ms L’s mother that he had grabbed her by the throat. He has a strong grip, and it would have left marks if he had grabbed her by the throat. He acknowledged that Ms L and his children were present and would have been scared by his conduct[77].

    [77] Transcript, p 24, lines 13-23.

35. He did not remember the police attending but agreed that the police record would be accurate.

36. The Applicant was referred to an exchange of text messages where Ms L had stated “…Please babe, I don’t want to live in fear anymore.”[78] He said he did not know why she had messaged that. He acknowledged that she was fearful during the incident but said that there was nothing in their relationship that she was ever fearful during the time they were together. Not long after the incident they had reconciled after another uncontested protection order. He accepted that she was fearful in relation to each of the instances which led to protection orders[79].

    [78] A16.

    [79] Transcript, p 26, lines 33-35.

37. The Applicant was then questioned in regard to the incident on 26 December 2019. He said that he went to her house to drop off his daughter who had stayed over with him the night before. Ms L was taking the children to a theme park that day. After they returned, he went back to her house to ask why she was texting to see if he was busy. He arrived unannounced, she opened the door and tried to run past him screaming and yelling. He tried to grab her and grabbed her shirt.  She bent over to try to escape his grip and her shirt came off leaving her topless, and she ran to the neighbours. He denied Ms L’s claim that he had punched her during this incident and said there was no physical altercation. He accepted that she would have been scared and acknowledged that a further uncontested protection order was made in consequence of this incident.

38. The Applicant was referred to the abovementioned Protection Order Application, wherein Ms L had recorded the historical allegations.[80] He said the report was not true. He denied damaging property and driving dangerously after taking the children in the car.  He had driven dangerously by himself, but not with the children in the car. He accepted there had been instances where he had driven his car at excessive speed but denied that he had threatened to remove the children.

    [80] R2, pp 24-25.

39. The Applicant also denied the alleged episode at Christmas 2010 when Ms L said she had woken up with his hands around the neck and she could not breath. He said he knew he did not assault her. Between Christmas and New Year’s eve there had been conversations, but not arguments about her infidelity. The Applicant also denied the occurrence of an incident Ms L claimed he had held a knife to her neck, and only removed it after she said that she would stay with him.

40. It was put to the Applicant that after this he went inside and threatened her not to tell anyone about it or he would kill her. They received visitors from the church from time to time, but he did not recall a reported visit at the time when she was crying, and he cried and apologised. He said it did not happen. His evidence was that it was all made up. He did not know why she would make it up. It was quite convenient that this came up after the incident in 2011. He denied that there was any episode of family violence prior to 2011. He agreed that they were serious allegations and would not be made lightly. He also knew that it was an offence to make a false complaint to police.

41. He did not dispute the facts of the offending which led to the cancellation of his visa. He was referred to the Statement of Agreed Facts which was the basis for his plea of guilty, and which he had cleared with his lawyers to be submitted to the Court. He accepted that his offending had put his family, who were all present, in fear and this was family violence[81].

    [81] Transcript, p 45, lines 40-47; p 46, lines 1-5.

42. When questioned about the answers he gave on two incoming passenger cards in the material where he had denied criminal convictions.[82] The Applicant said that he was tired at the time and it was careless, but he did not think his offending was criminal. He acknowledged that his answers were incorrect.

    [82] G1, pp 58-59.

    Evidence of Elliot Claven

43. Mr Claven affirmed the truth of his statement[83] before the Tribunal, and expressed awareness of  the Applicant’s offending in New Zealand and in Australia.  He had not discussed his relationship with his ex-wife with him. He had some awareness of his drinking, but did not know details. He thought that he used to like to drink more than others.

    [83] A23.

1. The assessment of the risk to the Australian community were the Applicant to engage in further offending or other serious conduct, is properly informed by the nature of his offending and other serious conduct to date. This assessment is also informed by the provision in paragraph 8.1.2(1) of the Direction which stipulates that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and that 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 is unacceptable.

   8.1.2(2)(a) – The nature of the harm

2. The nature of the harm should the Applicant reoffend or engage in other serious conduct is that persons might be subjected to violent and destructive home invasions by the Applicant while armed with knives. There could be death threats, potentially life-threatening knife attacks, possibly resulting in serious personal injury or death, serious psychological harm, and significant financial loss and damage to property. Innocent bystanders might suffer great trauma, and psychological harm.

3. A domestic partner of the Applicant might be subjected to assaults, and threats to her life and safety which might include the use of a knife. She may live in fear, too frightened to complain to police about the Applicant’s behaviour for fear of his retaliation on release from Police custody. She may find that a DVO provides little protection against the Applicant.

4. Children, even if protected by a court order, might be traumatised and suffer psychological or emotional damage by being the subject of threats to their safety, or innocently becoming entwined in the Applicant’s plans for violent behaviour or witnessing such behaviour.

5. Police officers could be assaulted or obstructed in the course of their duty.

   8.1.2(2)(b) - The likelihood of the non-citizen engaging in further criminal or other serious conduct

6. The Applicant has been assessed as a low risk of reoffending by both Dr Palk and by Queensland Corrective Services[116]. However, it does not appear that either was made aware of his offending in New Zealand, or of his full history of DVOs. Dr Palk was also not made aware of his two charges of Assault or Obstruct Police. These factors raise some uncertainty about the foundation for the expressed opinions, and lessens the weight the Tribunal is prepared to give to them.

   [116] G1, p 300.

7. Dr Palk was of the view that the Applicant suffered from

   “a substance use disorder, an adjustment disorder with features of depression and anxiety and poor anger management”

8. Dr Palk thought that the Applicant needed to

   “submit to substantive medical, psychological, and psychiatric treatment to manage his psychological conditions as well as his alcohol problem and anger control issues.”

9. The Applicant has taken some steps, but they do not presently appear to include much in the way of “substantive medical, psychological, and psychiatric treatment” in terms of Dr Palk’s recommendation.

10. The Applicant has however demonstrated a commitment to rehabilitation and has undertaken the Explore program as well as courses in Anger Management and conflict Resolution; Introduction to drug and alcohol awareness; Parental separation - Implications for the school. He has also engaged with the support group Man up Australia. He intends to keep engaging with professional help, and to again become active in his church to ensure he does not reoffend. He has abstained from alcohol and drugs for three years whilst in a controlled environment, and has expressed commitment to remaining sober, and is mindful of the physical and mental health benefits it brings. He has behaved well in custody and detention. He has strong support from family and friends including his new partner. He also has an offer of returning to work with his former employer, and stable accommodation with his sister.

11. The assessments that the Applicant has a low risk of reoffending are not founded on a full awareness of his prior conduct, and offending. Moreover, to the extent that Dr Palk opined that the Applicant has a low risk of reoffending, that assessment appears linked to the recommended treatment (which does not appear to have been undertaken) and his ability to continue to avoid alcohol if released into the community, and that remains untested. When he has taken alcohol in the past, the Applicant has drunk to the point of blackout on one in four occasions. In the absence of the recommended treatment, the Tribunal considers that the Applicant is a low to moderate risk of reoffending.

12. Moreover, the Tribunal considers this to be a case where the Applicant’s 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 as provided in paragraph 8.1.2(1) of the Direction.

    Conclusion: Primary Consideration 1

13. Primary Consideration 1 weighs very heavily against revocation.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

14. Paragraph 8.2 of the Direction provides:

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

    2This consideration is relevant in circumstances where:

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

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

    3In considering the seriousness of the family violence engaged in by the 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.

15. Primary Consideration 2 is relevant in this case as a consequence of the Applicant’s convictions on 21 October 2021 and 25 January 2022 in accordance with paragraph 8.2 (2) (a) of the Direction, and the body of evidence referred to at paragraph 36 above which falls within paragraph 8.2 (2) (b) of the Direction and is accepted by the Tribunal.

16. Having regard for subparagraph (3) of paragraph 8.2 of the Direction, the Tribunal finds

    (a)The Applicant’s family violence conduct has been frequent since 2006. His conduct has scared, threatened and traumatised Ms L. He has assaulted her on several occasions and threatened her with a knife. His conduct has scared and traumatised his children.  Most recently the Applicant subjected both of his sons to the trauma of witnessing their father prepare to commit a drunken violent assault with the stated aim of killing Mr P, for whom they appear to have had some fondness. His daughters were witnesses to the attack on Mr P, and fled in fear. The Tribunal considers that this demonstrates a trend of increasing seriousness.

    (b)The cumulative effect of the Applicant’s repeated acts of family violence is that he has more than likely caused Ms L and his children great anguish and trauma, and quite possibly, enduring emotional and psychological harm.

    (c)The Tribunal accepts that the Applicant has voiced acceptance of responsibility for his family violence conduct, and expressed concern as to its impact, but it does not find this very convincing. His initial blanket denial of family violence conduct diminished in successive versions of denial as detailed above. Evidence including that is quoted at paragraphs 169 and 170 above leaves the Tribunal with the impression that his acceptance of responsibility is disingenuous, and he is oblivious to Ms L’s long held fears. Whilst he accepted that specific incidents had caused fear, he did not appear to grasp that this fear did not pass with the instant. Hence Ms L’s remark that she did not want to go on living in fear. The Tribunal is left with doubts as to whether the Applicant genuinely grasps the atmosphere of fear under which Ms L and her children lived. The Tribunal nevertheless accepts that the Applicant has taken a number of positive steps through the various courses and programmes he has undertaken, and perhaps most importantly his abstinence from alcohol, albeit in a controlled environment. He has however, not undertaken the treatment recommended by Dr Palk.  The extent to which the Applicant may have achieved rehabilitation at this juncture, is uncertain and untested in the community, and not the subject of expert evidence.

    (d)Consideration of this sub-subparagraph is not enlivened by the evidence in this case.

17. The Tribunal considers that Primary consideration 2 should weigh very heavily against revocation.

    Conclusion: Primary Consideration 2

18. Primary Consideration 2 weighs very heavily against revocation.

    PRIMARY CONSIDERATION 3 THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA.

19. Paragraph 8.3(1) of the Direction requires consideration of 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.

20. Paragraph 8.3(2) of the Direction requires consideration of a non-citizen’s ties to Australia.  More weight should be given to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

21. Paragraph 8.3(3) requires consideration of the non-citizen’s strength duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

22. Paragraph 8.3(4) requires consideration of 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:

    (e)The length of time the non-citizen has resided in the Australian community, noting that:

    (i)     considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of then their offending commenced and the level of that offending; and

    (ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

    (iii)   less weight should be given to the length of time spent in the Australian community where the non-resident was not ordinarily in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

    Consideration of paragraph 8.3 Strength, nature and duration of ties

23. The Applicant’s partner gave evidence before the Tribunal. She is settled in her life in Australia. The Applicant’s deportation would at minimum disrupt her relationship with him, and quite possibly end it.

24. The Applicant’s eldest child is a New Zealand citizen with the right to live in Australia indefinitely. Her three siblings are resident Australian citizens. They have not provided statements to the Tribunal other than the text from his daughter T[117] referred to earlier.

    [117] G1, pp 357-358.

25. The Tribunal accepts that the Applicant’s children would be adversely impacted by the Applicant’s deportation, as they would most likely wish to salvage whatever positives they can from their relationship with him notwithstanding the pain he has caused them. They would be substantially deprived of fatherly support in most of its forms including financial, and be limited to electronic contact. The Tribunal gives this appropriate weight as required by the Direction.

26. The Applicant has a large family who are relevant for the purposes of this consideration, and who may well be adversely impacted by a decision to affirm the decision under review. Whilst a number of his family members have provided letters of support for him, and described his role in the family and as a father in positive terms, they have offered little insight into how each of them personally will be impacted by an adverse decision. He is clearly regarded with affection as was also evidenced by some family members attendance at the hearing. The Tribunal accepts that relevant members of the Applicant’s family will suffer some familial disruption, emotional grief and upset at his deportation, and loss of face to face contact but there is little evidence to allow it to find much beyond that.

27. This is not a case where the Applicant has been present in Australia during and since his formative years, but it is a case where he has been present in the Australian community for many years during which he has had a good employment record, and contributed to the community. Although his serious conduct began not long after his arrival, his actual offending did not begin until a number of years after, and para 8.3(4)(iii) refers specifically to offending rather than serious conduct.

    Conclusion Paragraph 8.3(1)

28. Paragraph 8.3(1) weighs heavily in favour of revocation.

    Conclusion Paragraph 8.3(2)

29. Paragraph 8.3(2) weighs very heavily in favour of revocation.

    Conclusion Paragraph 8.3(3)

30. Paragraph 8.3(3) weighs heavily in favour of revocation

    Consideration of Paragraph 8.3(4)              

31. Paragraph 8.3(4) weighs heavily in favour of revocation

    Conclusion Primary Consideration 3

32. Primary Consideration 3 weighs very heavily in favour of revocation.

    PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

33. Paragraph 8.4(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

34. Paragraph 8.4(4) of the Direction provides a list of factors to be considered in determining the best interests of the minor children. Those factors relevantly comprise for present purposes:

    (a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    (b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    (e)whether there are other persons who already fulfil a parental role in relation to the child;

    (f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    (g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    (h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

35. There are two groups of relevant minor children who will be under the age of 18 at the time of decision, the Applicant’s minor children, and his minor nephews and nieces. These groups will be considered separately.

    Part 1 – The Applicant’s children.

36. The Applicant’s four children are aged 17, 15, 13, and 10 years.

    Para 8.4(4)(a) Nature and duration of relationship

37. The relationship is parental and existing. There have however been long periods of absence from their lives occasioned by the Applicant’s arrest, and subsequent imprisonment and detention. He did not see them face to face for a period of two years, and although he has had some contact by email there has been limited communication by phone, even when three of the four have phones of their own.

    Para 8.4(4)(b) Likely future positive role

38. The Applicant’s children will respectively attain the age of 18 years in 2024, 2025, 2027, and 2030. Although the eldest, the daughter T has had some recent communication with the Applicant, the substance of that communication, and the very limited communication raises some question over the extent to which the younger three would welcome the Applicant’s involvement in their respective futures. The Applicant’s prospects of playing a positive role are very much tied to his capacity to abstain from alcohol and moderate his anger, and at this juncture, he has not undertaken all recommended treatment to enable him to optimize his rehabilitation. The Tribunal considers that there is a moderate prospect that he may play a positive role in his children’s lives if invited to do so.

    Para 8.4(4)(c) Impact of prior conduct

39. Having regard to the remarks of the sentencing judge, and the text from his daughter T, there is strong reason to believe that the Applicant’s past conduct has already adversely impacted on his children in a significant and negative way. This may make it more difficult for him to re-enter their lives. If he fails to control his drinking and anger, there is a real risk that his future conduct could further impact negatively on his children.

    Para 8.4(4)(d) Effect of separation

40. The effect of any further separation from the Applicant will be a continuation in the electronic contact which has comprised nearly all of the communication between the Applicant and his children in the last three years. Further, the chances of physical reunion as a family become very limited, if not nought in the foreseeable future. The three elder children would be able to maintain contact via phone and electronically if they chose to. The youngest is presently without a phone and would have to rely on others to maintain contact. That may be problematic.

    Para 8.4(4)(e) Parental role

1. Ms L presently fills the parental role in respect of the Applicant’s children.

   Para 8.4(4)(f) Views of the children

2. Other than the text from T referred to above, there is no relevant information before the Tribunal regarding this consideration. However the Tribunal is prepared to assume that at the end of the day, none of the Applicant’s children would wish to see him deported.

   Para 8.4(4)(g) Exposure to family violence

3. Evidence before the Tribunal establishes that the Applicant’s children have been endangered by his manner of driving. It also establishes that he threatened his elder son. He has exposed all four of his children to episodes of family violence, and has most likely caused them severe mental trauma.

   Para 8.4(4)(h) Emotional trauma

4. The Tribunal considers it very likely having regard to the remarks of Brown J, that the Applicant’s children have all suffered emotional trauma arising from his conduct.

   Conclusion regarding the best interests of the Applicant’s children

5. The interests of the Applicant’s children weigh moderately in favour of revocation.

   Part 2 – Nephews and Nieces.

6. The Applicant nominated 6 minor nephews and nieces who will be under 18 at the time of this decision. One of them, his niece who shall be referred to as H, turns 18 in March 2024. The oldest of the remaining nephews and nieces was aged 3 at the time of his incarceration. Other than H, there is very little evidence before the Tribunal so as to enable it to give any detailed assessment of the applicant's relationship with them regarding the relevant considerations.

   Para 8.4(4)(a) Nature and duration of relationship

7. In each instance, the relationship is non parental. It is clear that there has been some social interaction between H and the Applicant however there is no specific evidence before the Tribunal in relation to his one on one interaction with the remaining nephews and nieces. There is no clear evidence before the Tribunal of any direct contact between the applicant and any of his nephews and nieces since his arrest for the offences which led to the cancellation of his visa, other than to the extent of contact which may be inferred from the letter provided by H.

   Para 8.4(4)(b) Likely future positive role

8. The Tribunal accepts that given the opportunity, the Applicant would resume the seemingly positive role he played in H’s life prior to his incarceration, and would seek to play a similar role in the lives of his infant nephews and nieces. There does not appear to be any reason to believe that his alcohol or anger issues have been a detriment to his relationship with H, and it appears unlikely that they would be a detriment in his dealings with his younger nephews and nieces in the future.

   Para 8.4(4)(c) Impact of prior conduct

9. There is no evidence before the Tribunal to suggest that any of the applicant's past conduct or likely future conduct would have a negative impact on any of his nephews or nieces.

   Para 8.4(4)(d) Effect of separation

10. There is not sufficient evidence before the Tribunal to enable it to make an assessment in respect of this consideration, other than it does not appear that there has been any contact of significance between the Applicant and any of his nephews and nieces since his arrest for his recent offences. It is quite possible that the younger ones have no memory of him.

    Para 8.4(4)(e) Parental role

11. The Tribunal has no reason to believe that each of the nephews and nieces are not currently being cared for by either or both of their biological parents.

    Para 8.4(4)(f) Views of the children

12. The Tribunal accepts that H does not wish her uncle to be deported as she described him as a caring, generous, and loving uncle. The Tribunal is prepared to accept that were the other children old enough to speak for themselves they would most likely echo this sentiment.

    Para 8.4(4)(g) Exposure to family violence

13. There is no evidence before the Tribunal to suggest that any of the applicant's nephews and nieces have ever been exposed to, or at risk of any misconduct on the part of the Applicant.

    Para 8.4(4)(h) Emotional trauma

14. There is no evidence before the Tribunal to suggest that any of the applicant's nephews and nieces have ever been caused emotional trauma by any misconduct on the part of the Applicant.

15. The Applicant has no existing relationship with his nephews and nieces other than H.

    Conclusion regarding best interests of the Applicant’s nephews and nieces

16. The interests of the Applicant’s nephews and nieces weighs slightly in favour of revocation.

    Conclusion: Primary Consideration 4

17. Primary Consideration 4 weighs moderately in favour of revocation.

    PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

18. In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws 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 he 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.

19. Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)acts of family violence; or

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

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

    (d)commission of crimes against government representatives or officials due to the possession 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.

20. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

21. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

22. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[118]

    [118] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

    Analysis – Allocation of Weight to this Primary Consideration 5

23. The Tribunal considers that notwithstanding the period of time the Applicant has spent in Australia, the Australian community would have very serious character concerns regarding this Applicant having regard to his long and serious history of family violence, his crimes against police, and his very violent attack on Mr P.

    Conclusion: Primary Consideration 5

24. Primary consideration 5 weighs very heavily against revocation.

    PARAGRAPH 9: OTHER CONSIDERATIONS

25. Under the heading Other Considerations paragraph 9(1) of the Direction provides a non-exhaustive list of considerations as follows:

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims;

    (d)impact on Australian business interests.

    (a) Legal consequences of the decision

26. It was submitted on behalf of the Applicant that this was not a relevant consideration[119], and accordingly it is given neutral weight.

    [119] G1, p 507.

    (b) Extent of Impediments if Removed

27. Paragraph 9.2(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

    Paragraph 9.2(1)(a) - Age and health

28. The Applicant is a 38 year old male. He does not suffer any diagnosed health conditions which are serious, or in any way likely to seriously impede his assimilation back into the community in New Zealand. It is accepted that he may suffer emotional upset at separation from his children, and close knit large and extended family. He has only one sibling in New Zealand, and she no doubt has her hands full caring for her seven children. She is unlikely to be able to offer him much in the way of time or other support. He may struggle financially and to offer support to his children, but does have some trade skills which he can employ to his benefit.

29. This weighs slightly in favour of revocation.

    Paragraph 9.2 (1)(b) Substantial language or cultural barriers

30. It has not been submitted that the Applicant will encounter any substantial language or cultural barriers on his return to New Zealand. This consideration is given neutral weight.

    Paragraph 9.2(1)(c) - any social, medical and/or economic support available to that non-citizen in that country

31. It has not been submitted that the social, medical and economic support available to the Applicant in New Zealand presents as an impediment to his return, and it is well accepted that New Zealand levels of support are comparable to those in Australia. This consideration is given neutral weight.

    Conclusion Paragraph 9.2 Extent Of Impediments If Removed

32. This consideration weighs slightly in favour of revocation.

    (c) Impact on victims

33. Paragraph 9.3(1) states that decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

34. It was submitted for the Applicant that this consideration was not relevant[120], however, the Tribunal considers that the deportation of the Applicant will have both positive and negative impacts on Mr P, Ms L and her children.

    [120] G1, p 111.

35. On the positive side, they will not have to live in fear of any further similar conduct by the Applicant.

36. On the negative side, Ms L, and the Applicant’s children may face financial hardship in consequence of diminished financial support from the Applicant. As has already been noted, the children will face impediments to maintaining a relationship with their father, and may suffer emotionally from separation.

37. The Tribunal considers that the positives outweigh the negatives, and therefore this consideration weighs against revocation.

    (d) Impact on Australian Business interests

38. Paragraph 9.4(1) of the Direction requires that decision makers, must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

39. It was submitted for the Applicant that this consideration was not relevant[121], and the Tribunal accepts that submission and allocates neutral weight.

    [121] G1, p 111.

    Conclusion As To Paragraph 9: Other Considerations

40. Overall, the Tribunal considers that the other considerations weigh against revocation.

    CONCLUSION

41. The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.

42. In considering the various consideration, the Tribunal finds:

    ·Primary Consideration 1 weighs very heavily against revocation;

    ·Primary Consideration 2 weighs very heavily against revocation;

    ·Primary Consideration 3 weighs very heavily in favour of revocation;

    ·Primary Consideration 4 weighs moderately in favour revocation;

    ·Primary Consideration 5 weighs heavily against revocation;

    ·The totality of other considerations weighs against revocation.

43. The Tribunal considers that considerations 1, 2, and 5 outweigh considerations 3, 4 and the other considerations.

44. Accordingly, the Tribunal is not satisfied for the purposes of s. 501CA(4)(b)(ii) that there is another reason why the original decision should be revoked.

45. Therefore, the discretion provided in s 501CA(4) is not enlivened, and the Tribunal is not empowered to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

46. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 20 June 2023 to not revoke the cancellation of the Applicant's visa.

I certify that the preceding 299 (two hundred and ninety – nine) paragraphs are a true copy of the reasons for the decision herein of Member Roger Maguire

...............................[SGD]...............................

Associate

Dated: 3 October 2023

Dates of hearing:	22 and 23 August 2023
Applicant:	Self represented
Solicitor for the Respondent:	Chris West (Solicitor)
Sparke Helmore Lawyers

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1-23)	7 Aug 2023	7 Aug 2023
A1	Applicant’s Statement of Facts, Issues and Contentions (paged 1-16)	Undated	21 Jul 2023
A2	Applicant’s Further Statements of Facts, Issues and Contentions    (2 pages)	Undated	15 Aug 2023
A3	Applicants Further Reply Statement of Facts, Issues and Contentions  (3 pages)	Undated	17 Aug 2023
G1	Section 501 G-Documents (G1-G100, paged 1-659)	Various	3 Jul 2023
R2	Tender Bundle (1-6, paged 1-270)	Various	7 Aug 2023
A4	Individual Management Plan – Redacted Copy (paged 1-17)	Various	21 Jul 2023
A5	Statement of Ahmad Wassim Ziadeh (1 page, signed)	11 Jul 2023	21 Jul 2023
A6	International Health and Medical Services Clinical Records (56 pages, paged variously)	Various	21 Jul 2023
A7	Statement of Dan Agatasi Tui (1 page, unsigned)	Undated	21 Jul 2023
A8	Department of Home Affairs – Access Decision – Freedom of Information (FOI) request (paged 1-7)	24 Jun 2023	21 Jul 2023
A9	Statement of John Economou (1 page, signed)	12 Jul 2023	21 Jul 2023
A10	Statement of Kayla Hudson (1 page, signed)	12 Jul 2023	21 Jul 2023
A11	Letter of Support from Sam Matekuare (Man Up Tu Tangata) (1 page, unsigned)	26 Jun 2023	21 Jul 2023
A12	Statutory Declaration of Shaylene Claven (2 pages, signed)	20 Jul 2023	21 Jul 2023
A13	Statement of Shaylene Claven (1 page, signed)	20 Jul 2023	21 Jul 2023
A14	Combined Text Messages (16 pages)	Undated	21 Jul 2023
A15	2019 Phone Screenshots (3 pages)	Various	15 Aug 2023
A16	2016 Phone Screenshots (3 pages)	Various	15 Aug 2023
A17	Photos from visit with family (4 pages)	Undated	15 Aug 2023
A18	Statutory Declaration of Faleono Poloai (paged 1-2, signed)	3 Aug 2023	17 Aug 2023
A19	Statement of Emeline (Lenes) Poloai (1 page, signed)	Undated	17 Aug 2023
A20	Statement of Barbara Poloai (1 page, signed)	Undated	17 Aug 2023
A21	Statement of Violet Lily Poloai (1 page, signed)	Undated	17 Aug 2023
A22	Cost of Living in New Zealand Screenshots (3 pages)	Undated	17 Aug 2023
A23	Statement of Elliot Claven (2 pages, signed)	Undated	17 Aug 2023