Siale and Minister for Immigration and Multicultural Affairs (Migration) - [2024] AATA 3283

Siale and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3283 (27 August 2024)
Division:GENERAL DIVISION
File Number: 2024/3783
Re:Lealofioamoa Jordan Siale
APPLICANT

AndMinister for Immigration and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member T Tavoularis
Date of decision: 27 August 2024
Date of written reasons: 12 September 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 3 June 2024 to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
....................[SGD]....................
Senior Member T Tavoularis
Catchwords
MIGRATION – non-revocation of mandatory cancellation of a visa – failure to pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – risk of recidivism found to be not insignificant and unacceptable – nature and seriousness of criminal offending found to be very serious - where factors in favour of revocation outweigh factors against revocation - Tribunal finding there is not another reason to revoke the mandatory cancellation decision - decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairsv Thornton [2023] HCA 17
PNLB v Minister for Immigration and Border Protection [2017] AATA 1561
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Table of contents
Introduction
Procedural history
Legislative framework
Primary Consideration 1: protection of the Australian community
Primary Consideration 2: family violence committed by the non-citizen
Primary Consideration 3: the strength, nature and duration of ties to Australia
Primary Consideration 4: the best interests of minor children in Australia
Primary Consideration 5: expectations of the Australian community
Other Considerations
Conclusion
Decision
Annexure A
Annexure B
REASONS FOR DECISION
Senior Member T Tavoularis
12 September 2024
INTRODUCTION

Mr Lealofioamoa Jordan Siale (‘the Applicant’) is a 26-year-old citizen of New Zealand. He first arrived in Australia on 23 March 1999 when aged one year and three months. His movement history in and out of Australia is quite minimal. He has only left Australia once since his initial arrival and that was from 20 April 2009 until 12 May 2009.[1] Apart from that approximate one-month absence, the Applicant has been in Australia on a continuous basis since March 1999. He has therefore spent about 93 per cent of his life in this country.
[1] R1, p 283.
PROCEDURAL HISTORY
The Applicant’s visa history in this country has transpired thus:
·12 May 2009: the Applicant was granted a Class TY Subclass 444 Special Category (Temporary) visa (‘the Visa’);
·28 September 2021: he was notified of the mandatory cancellation of the Visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’);
·1 October 2021: the Applicant made representations seeking revocation of the abovementioned mandatory cancellation decision;
·3 June 2024: a delegate of the Minister for Immigration and Multicultural Affairs[2] (‘the Respondent’) decided, pursuant to section 501CA(4) of the Act, not to revoke the mandatory cancellation decision. For the purposes of these Reasons, I will refer to this non-revocation decision as the ‘Decision Under Review’;
·10 June 2024: the Applicant applied to this Tribunal seeking review of the immediately preceding non-revocation decision made pursuant to section 501CA(4) of the Act.
[2] Prior to 29 July 2024, the Respondent Minister’s portfolio was Minister for Immigration, Citizenship and Multicultural Affairs.
The instant hearing proceeded before me in-person on 19 and 20 August 2024. There was a third and final hearing day on 26 August 2024 which proceeded before me by video. I will cumulatively refer to these hearing dates as ‘the Hearing’. At the commencement of the Hearing the parties agreed that the Tribunal’s list of material should be consolidated into an agreed Exhibit List[3] which is attached to these Reasons and marked as ‘Annexure A’. This Hearing received oral evidence from:
·the Applicant;
·the Applicant’s brother, Liaina (Jay) Siale;
·the Applicant’s sister, Victoria Moors;
·the Applicant’s partner, Agaletoa (Toa) Ivory Isaia;
·the Applicant’s friend, Natalie Ellis; and
·the Applicant’s friend, Peter Lopeti.
[3] Transcript, p 2, lines 4-29.
The Hearing of this matter was completed on 26 August 2024. The 84^th day[4] in this matter fell on 27 August 2024. On 27 August 2024 I caused a short-form decision to be duly published to the parties on that day so as to ensure this Tribunal discharged its statutory obligation mandated by section 500(6L)(c) of the Act. Attached to these Reasons and marked ‘Annexure B’ is a true and correct copy of that short-form decision. Pursuant to the authority of Khalil v Minister for Home Affairs (2019) 271 FCR 326,[5] I now publish my detailed written reasons within a reasonable time after publication of my short–form decision.
[4] That is to say the date arising pursuant to section 500(6L) of the Act which requires this Tribunal to make a decision about this application within the period of 84 days after the day on which the person was notified of the Decision Under Review.
[5] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–⁠[48]. For present purposes, I caused the short-form decision to be published on 27 August 2024 so as to ensure the parties had their matter determined in accordance with the Ministerial Direction that prevailed at the time they ventilated the instant application before me.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by section 501CA(4)(a) of the Act. I am also satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to section 500(1)(ba) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
Does the Applicant pass the character test?
The Applicant does not pass the character test as a matter of law.[6] He was sentenced to a custodial term of imprisonment for 15 months on 11 June 2021.[7] This head custodial term comfortably meets the respective threshold requirements appearing in section 501(6)(a) of the Act (‘substantial criminal record’) and section 501(7)(c) of the Act (‘sentenced to a term of imprisonment of 12 months or more’). Accordingly, the Applicant cannot rely on section 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked. This concession is rightly made by the Applicant in his SFIC[8].[9]
[6] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[7] R1, p 34.
[8] Denoting ‘Statement of Facts, Issues and Contentions’.
[9] A1, p 4 [3](b).
Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa,[10] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 110 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 110’) has application.[11]
[10] Pursuant to section 501CA(4) of the Act.
[11] Direction No 110 commenced on 21 June 2024. It replaces Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
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; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offending: A summary
The Applicant’s offending history appears in the material.[12] It is a history that, in sentencing terms, runs from July 2015 to October 2023. It involves convictions for the commission of some 42 offences that were dealt with at six separate sentencing episodes. Critical for present purposes is that the Applicant’s first conviction at the Beenleigh Magistrates Court occurred on 27 July 2015 at which time the Applicant was a juvenile aged 17 years,

7 months and 12 days.[13] The resulting question is whether the High Court’s decision in Thornton[14] restricts this Tribunal’s capacity to have regard to this particular conviction imposed on the Applicant while a juvenile.
[12] R1, pp 32-35.
[13] It should be noted that the sentencing record confirms the entry of a ‘NO CONVICTION RECORDED’ notation for this particular sentence.
[14] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairsv Thornton [2023] HCA 17.
In assessing the extent to which Thornton binds this Tribunal, it must be understood Thornton specifically stands for the proposition that section 184 of the Youth Justice Act 1992 (Qld) and section 12(3) of the Penalties and Sentences Act 1992 (Qld) engage the provisions of section 85ZR(2) of the Crimes Act 1914 (Cth) such that where an offence is committed by a person when they were a child, and no conviction is recorded despite a finding of guilt, that offence is not to be taken as a conviction for any purpose.
Out of an abundance of caution and pursuant to the authority of Thornton, I will not take into account the Applicant’s conviction imposed upon him on 27 July 2015. In addition, my findings about the nature and seriousness of the Applicant’s offending should be read in light of the extent to which Thornton applies to this Applicant’s criminal history for present purposes. For present purposes, I will take into account the Applicant’s offending history commencing with the sentencing episode on 5 December 2019 at which time the Applicant was aged 21 years, 11 months and 21 days.
Thus, taking into account the impact of Thornton on the Applicant’s offending history, the totality of his offending that can be taken into account for the instant determination looks like this:
·total offences committed (as an adult): 41;
·period of offending (in terms of sentencing episodes as an adult): 5 December 2019 until 19 October 2023;
·period of offending (in terms of dates when offences were committed as an adult): 28 August 2019 until 29 August 2021;
·total sentencing episodes: five commencing on 5 December 2019 until 19 October 2023;
·nature of offences committed (including the number of those offences in brackets):
ofailure to appear in breach of bail (x8);
ounlawful possession of restricted drugs (x10);
ounlawful use of motor vehicle (x4);
oobstruct police officer (x2);
ocontravention of domestic violence order (‘DVO’) (x5);
opossession of drug consumption paraphernalia (x3);
opossess property suspected of having being used in connection with the commission of a drug offence (x2);
opossessing/acquiring restricted items (weapon offence)(x1);
ofail to properly dispose / take reasonable care and precautions in respect of syringe or needle (x2);
oauthority required to possess explosives (x1);
ounlawful possession of weapons (x1); and
oreceiving tainted property (x1);
·sentencing modalities imposed (at each relevant sentencing episode):
o5/12/19: no conviction recorded and fine imposed;
o16/1/20: no conviction recorded: not further punished;
o16/1/20: no conviction recorded: period of probation imposed;[15]
[15] Note to reader: I have counted the sentencing episode on 16 January 2020 as one sentencing episode. However, the Applicant received two sentencing modalities on that sentencing date.
o11/6/21: conviction recorded: not further punished;
o11/6/21: conviction recorded: custodial term imposed: 15 months;
o11/6/21: conviction recorded: custodial term imposed: three months;
o11/6/21: conviction recorded: custodial term imposed: 12 months;
o11/6/21: conviction recorded: custodial term imposed: six months;[16]
o12/10/23: conviction recorded: not further punished and pre-sentence custody taken into account but not declared as time already served under this sentence; and
o19/10/23: on all charges: conviction recorded and not further punished;
·sentencing summary:
ototal fines: $2,500;
ototal probationary time imposed: 18 months; and
ototal head custodial time imposed: 36 months or three years.
[16] Note to reader: I have counted the sentencing episode on 11 June 2021 as one sentencing episode. However, the Applicant received five sentencing modalities on that sentencing date.

The material also contains a traffic history.[17] It is an appalling history particular of which comprise the following:
·length of history: June 2017 to October 2019 comprising two years and four months;
·total number of traffic offences committed: 11;
·of those 11 traffic offences, five are for unlicensed driving;
·his driving privileges have been suspended for a cumulative period of 24 months consequent upon his offending; and
·his offending has attracted the imposition of $2,466 worth of fines.
[17] R3, pp 20-21.
Application of factors appearing at paragraph 8.1.1(1) of the Direction
The chapeau to paragraph 8.1.1(1)(a) of the Direction outlines the three categories of offences which are viewed ‘very seriously’ by the Australian Government and the Australian community. It suffices to say that this Applicant has committed at least one act of family violence against a former partner. This occurred on 31 October 2019 and involved the Applicant tackling his former partner.[18] This conduct resulted in the police taking out a Temporary Protection Order. A second incident involving the Applicant took place on 3 December 2019 in which he hit his former partner across the back of her head.[19] This led to a breach of the extant DVO. Paragraph 8.1.1(1)(a)(iii) of the Direction requires a finding that an act of family violence has been committed ‘regardless of whether there is a conviction for an offence or a sentence imposed’.
[18] R3, p 444.
[19] R3, pp 21-23.
While the Applicant may not have a conviction for an offence against the person of his former partner for this conduct, he was nevertheless convicted of a breach of the extant DVO. This is sufficient to engage the auspices of paragraph 8.1.1(1)(a)(iii) of the Direction and to find that the nature of the Applicant’s conduct has been ‘very serious’. I so find.
The chapeau to paragraph 8.1.1(1)(b) of the Direction outlines the range of conduct (without limitation) that is considered to be ‘serious’ by the Australian Government and the Australian community. There is nothing in the material to suggest the Applicant has been offended in the realm of either entering into or being a party to forced marriage.[20] Likewise, he has no convictions for any offending during his time in immigration detention.[21] To the best of my understanding of his offending history, none of it comprises conduct compelling a finding by me that he does not pass an aspect of the character test dependant on my opinion, as opposed to my earlier finding that he fails the character test as a matter of law.[22]
[20] Paragraph 8.1.1(1)(b)(i) of the Direction.
[21] Paragraph 8.1.1(1)(b)(iv) of the Direction.
[22] Paragraph 8.1.1(1)(b)(iii) of the Direction.
However, the Applicant committed two offences charged as ‘obstruct police officer’ on

3 and 4 December 2019. He was convicted on both of these charges by the Beenleigh Magistrates Court on 16 January 2020. There is little or nothing to cavil with the proposition (and finding) that the Applicant’s conduct falls squarely within the auspices of paragraph 8.1.1(1)(b)(ii) of the Direction as crimes committed against government representatives or officials (i.e. the police) in the performance of their duties. This conduct thus grounds a finding that the nature of this Applicant’s conduct has been, at the very least, of a serious nature. I so find.
Paragraph 8.1.1(1)(c) of the Direction requires an examination of the sentences imposed on the Applicant as a guide for the assessment of a non-citizen’s offending. I am mindful of the precluded categories of sentences stipulated by this sub-paragraph. For his

non-precluded offending, the sentences are nevertheless serious and substantial. They include:
·a $2,500 fine for five convictions involving failure to appear as per an undertaking;
·the imposition of a 15-month head custodial term for two convictions charged as ‘unlawful use of motor vehicles or aircraft or vessels’;
·the imposition of a 12-month custodial term for a conviction charged as unlawful possession of weapons, category D/H/R weapon-short firearm in public; and
·the imposition of a six-month head custodial term for six convictions each charged as possessing dangerous drugs.
I am therefore satisfied that these convictions more than amply engage the auspices of paragraph 8.1.1(1)(c) of the Direction and strongly militate in favour of a finding that this Applicant’s offending has been of a very serious nature.
Paragraph 8.1.1(1)(d) of the Direction looks for evidence about the impact of a non-citizen’s offending on any victim and their family. The material seems silent about any such statement from a victim who may be opposing the Applicant’s continued presence in Australia on the basis of the impact any such victim experienced as a result of the Applicant’s offending. The contention put on behalf of the Applicant is that this specific paragraph is not relevant and attracts neutral weight.[23] The Respondent’s SFIC is silent about any application of this specific paragraph. Out of an abundance of caution, I will allocate neutral weight specific to this paragraph.
[23] A1, p 14 [14].
Paragraph 8.1.1(1)(e) of the Direction looks at the frequency of a non-citizen’s offending and/or whether there is any trend of increasing seriousness. The Applicant’s criminal history is one of relative brevity (in terms of its temporal length) but one that was nevertheless intensely committed. In sentencing terms, it is a history that runs from December 2019 to October 2023. During that almost four-year period the Applicant committed at least 40 offences which constitutes offending at the rate of over 10 offences for each year of the criminal history. He found himself before sentencing courts on at least five occasions during the period of offending which equates to over one sentencing episode per each year of offending. This is plainly frequent offending and I will find accordingly.
Does the pattern of offending demonstrate a trend of increasing seriousness? I am of the view that it does. The first six convictions are for a failure to appear in accordance with an undertaking (x5) and one conviction for unlawful possession for restricted drugs. The offending pattern then graduates in seriousness (from the ninth to the 20^th conviction) to unlawful use of motor vehicles, obstructing a police officer and domestic violence and property offending. Thereafter, the offending graduates in seriousness to a weapons offence, further domestic violence offending and more serious drug offending. One of the weapons convictions involved the Applicant being in unlawful possession of a firearm in public which caused intervening police to record the Applicant carrying this weapon while running through the backyards of private residences. When police searched a backpack discarded by the Applicant running through the backyards of people’s homes, they located the shortened firearm with four rounds of ammunition. I am therefore satisfied that the Applicant’s offending pattern demonstrates a trend of increasing seriousness.
I am accordingly satisfied that there is both (1) a frequency to the Applicant’s offending; and (2) that is demonstrates a trend of increasing seriousness. This combined finding causes this paragraph 8.1.1(1)(e) to strongly militate in favour of a finding that the totality of this Applicant’s offending should now be found to be ‘very serious’.
Paragraph 8.1.1(1)(f) looks for any cumulative effects to be gleaned from the Applicant’s pattern of offending. The Applicant’s offending is multi-faceted and each facet demonstrates an actual cumulative effect of his repeated pattern of offending. First ,his failure to respect lawfully made instruments and/or legislation compelling him to do or refrain from doing something such as (1) observing the terms of an undertaking; (2) following a lawful direction of a police officer; (3) breaching the terms of bail granted to him; and (4) repeatedly breaching extant DVO’s is demonstrable of a person who has abjectly failed to develop any measure of respect for the lawful authority governing the Australian community back into which he now seeks to be readmitted. This failure can also be gleaned from his traffic history which demonstrates an absolute failure to follow the laws and regulations governing the ownership, management and control of a motor-vehicle on Australian carriageways.
Second, his domestically violent conduct towards women has exposed at least two former partners to a not insignificant risk of physical injury. Repeated and concerted campaigns by governments at all levels have sought to convey to the community the total unacceptability of domestically violent conduct in Australia. This Applicant’s appalling conduct towards at least two previous partners involving domestically violent conduct towards them is, without question, a cumulative effect of his offending. Third, the Applicant has some 13 convictions in the realm of drug offending. One needs no reminding about the scourge of illicit drugs on our community whether it be in relation to individual victims/addicts and/or the families and supporting people around them that very often have to deal with the impact of such substances on those who consume them.
Fourth, the Applicant has convictions for property offending. This offending has deprived the lawful owners of goods the right to peaceful use and enjoyment of their property. The Applicant had absolutely no right to interfere with the rights of those property owners in and to their property. This conduct has surely resulted in demonstrable material loss to the victims of such property offending. Fifth, and finally, the totality of this Applicant’s offending has well and truly consumed more than its fair share of the community’s law enforcement, judicial sentencing and custodial resources. It can also be found that his conduct may have quite probably consumed the community’s healthcare resources as a result of his domestically violent conduct against at least two former partners and as a result of any impact his drug offending may have caused either individual consumers of such drugs or entirely innocent people who may have suffered an injury as a result of his failure to properly dispose of any needle and syringe he may have utilised as part of his own drug use.
These cumulative effects of the Applicant’s repeated offending cause this paragraph 8.1.1(1)(f) to strongly militate in favour of a finding that the totality of the Applicant’s offending should now be found to be ‘very serious’.
There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Respondent’s Department. Paragraph 8.1.1(1)(g) should be put to one side and rendered neutral for present purposes. Likewise, there is no evidence that the Applicant has re-offended following receipt of a warning about the consequences of such further offending on his Visa status to remain here. Paragraph 8.1.1(1)(h) should be put to one side and rendered neutral for present purposes. The Applicant came here aged just short of two years. He thus could not have committed any offence before coming here. There is nothing before the Tribunal to demonstrate that for the one month he spent out of Australia from 20 April 2009 until 12 May 2009 that he committed any offences while abroad. Paragraph 8.1.1(1)(i) should be put to one side and rendered neutral for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. The relevant paragraphs applicable to the instant facts safely and cumulatively lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’. I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken);
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
I am of the view that the nature of the harm individual victims or the Australian community would suffer in the event of further offending by this Applicant can be broadly understood from my abovementioned discussion about the five cumulative effects in which his offending has resulted to date. The following concession is made on behalf of the Applicant: ‘…the nature of harm to others and himself, if he [the Applicant] commits similar offending, is significant.’[24] The Respondent contends in similar terms as follows: ‘…the harm that would be caused to the Australian community, including physical and psychological, should the Applicant continue to offend in the manner in which he has to date, would be substantial.’[25]
[24] A1, p 16 [24].
[25] R2, p 11 [32].
I am in broad agreement with the parties’ respective submissions. While it is correct to submit that the nature of harm resulting from the Applicant committing further offences similar to or identical to those he has already committed would be ‘substantial’, I think it is also necessary to outline why this is so. It is so because:
·if the Applicant returns to the community and continues to abjectly refuse to observe a lawfully made instrument compelling him to do or refrain from doing something, his conduct will again consume both law enforcement and judicial sentencing resources of the community;
·if he were to again perpetrate domestically violent conduct against a domestic partner or other member of his family, it is not outside the realms of possibility that such conduct could result in potential or actual physical, psychological and potentially catastrophic harm to such a victim;
·the commission of further drug offences places both users of such substances at genuine physical, psychological and potentially catastrophic harm. It also has palpable effects on the families and support people around the users of such substances. All too often, drug offending results in consumption of the community’s healthcare resources;
·further property offending by the Applicant will deprive lawful owners of such property of the right to the use and enjoyment of the property those owners have lawfully acquired. There would doubtless be quantifiable material loss to the victims of such offending;
·further weapons – type offending by the Applicant would place the community at direct physical and quite potentially catastrophic risk. There is no other finding that could be made regarding conduct that saw the Applicant running through the backyards of private residences with a backpack containing a shortened firearm with rounds of ammunition in it;
·any resumption of the Applicant’s pattern of traffic offending would, at best, again consume the community’s policing and judicial sentencing resources. At worst, if he were to drink and drive, the resulting outcome could well be catastrophic;[26] and
·as mentioned earlier, recommission or all or part of the Applicant’s past offending will inevitably again consume the community’s law enforcement, judicial sentencing, custodial and healthcare resources.
[26] Note to reader: there are two entries relating to the Applicant drinking and driving. The offence note in the traffic history for 28/11/2017 notes that he was driving while affected by drink in the low-range. The similar record for 28/11/2017 notes that he was driving with a blood alcohol concentration of 0.025 (See R3, p 21).
I am therefore satisfied that were the Applicant to re-commit his past offending, the nature of the harm it would cumulatively represent to either individual victims and the Australian community more generally would range from (1) undue consumption of the community’s law enforcement, judicial sentencing and custodial resources; (2) measurable material and/or economic harm; (3) psychological harm; (4) actual physical harm; and (5) quite conceivably, catastrophic harm.
I will also find, pursuant to paragraph 8.1.2(1) of the Direction, that the harm resulting from the Applicant’s recommission of offending is so serious that any risk of its recommission would be unacceptable to the Australian community. This is especially the case with regard to his offending convicted as ‘unlawful use of motor vehicles, aircraft or vessels’, ‘contravention of domestic violence order (aggravated offence)’, and ‘unlawful possession of weapons category D/H/R weapon-short firearm in public’.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s position on risk
As noted earlier, the Applicant made certain representations to the Respondent Minister in response to the initial mandatory cancellation decision. This document relevantly appears in the material and is dated 18 January 2022.[27] In this document the Applicant says that any assessment of his offending should be looked at through the following lenses:
·that his offending committed prior to August 2019 is relatively minor, despite residing in Australia since 1999;[28]
·his past heavy use of methamphetamine is the result of a relationship with a former domestic partner;[29]
·the evidence of his brother which suggests the Applicant ‘…understands now that he must do a lot better than before and that he must make big changes to deal with his drug and alcohol use’;[30] and
·the evidence of his sister who says the Applicant has told her of ‘…the changes he would be making in the future…getting back into studying and completing a certificate in mechanic work….he will seek rehab if he is to be released into the community and insures for a successful outcome.’[31]
[27] R1, pp 68-85.
[28] R1, p 75 [52](a).
[29] R1, p 76 [52](b).
[30] R1, p 76 [53].
[31] R1, p 76 [54].
In his SFIC, the Applicant contends that his risk of reoffending is mitigated due to the following protective factors:
‘(a) he was a willingness to engage with relevant rehabilitation which goes beyond mere intentions and is demonstrated through action and enquiry:
(i) he completed a LISI Explore Program on 26 March 2021;
(ii) he has ceased using illicit substances despite the availability of illicit substances in prison;
(iii) he enrolled in a Drug and Alcohol course commencing 10 January 2022, which was cancelled due to COVID-19 and the resulting prison lockdowns;
(iv) he is willing to pursue further rehabilitation efforts including attending a rehabilitation centre if released into the community; and
(v) he has a relapse prevention plan which is complemented by his support network who are committed to assisting him with recovering from alcohol and substance abuse, including locating a suitable rehabilitation centre;
our client has become aware of his father's heart problems, including a minor heart attack and multiple hospitalisations which our client instructs is a key motivator in his abstinence from substances and reoffending; and has an offer of employment if he is released into the Australian community.’[32] [internal citations omitted]
[32] R1, pp 76-77 [55].

In his statement made on 8 March 2022 the Applicant predicates his risk of reoffending in these terms:
·he is sorry for his offending, but cannot take his crimes back and will make sure he does not commit them again;
·he says he has stopped illicit drug and alcohol abuse and, due to ‘various rehabilitation efforts,’[33] he will remain drug free;
·he refers to rehabilitative courses he has completed and asserts some kind of insight into the nature and impact of illicit drug use;
·that he is ‘…currently speaking to someone who will help me get into a four-day anger management course’;[34]
·he professes a commitment to abstaining from abusing alcohol and illicit drugs;
·upon a return to the community he says ‘…I would get work (as I have a job offer) …’;[35]
·upon return to the community his accommodation needs would be met by him residing with his father, stepmother and younger siblings;
·he acknowledges ‘…that my rehabilitation is ongoing…I am committed to ongoing counselling and rehabilitation…’;[36] and
·that ‘…my Dad’s heart condition, being able to work and support him is my first priority.’[37]
[33] R1, p 95.
[34] R1, p 95.
[35] R1, p 95.
[36] R1, p 95.
[37] R1, p 95.
With particular reference to the abovementioned protective factors, there is evidence of the Applicant’s completion of a number of rehabilitative courses for alcohol and drug abuse and anger management.[38] Amongst the certificates and other evidence of rehabilitation, the material contains a letter from Ms Lani Stockwell who is the co-ordinator of the Community and Family Support Service program run by the organisation known as DrugARM. She confirms the Applicant has ‘…contacted our Central Intake service and completed an intake screen on 18^th December 2023…[and that he]….has attended a counselling session on the 19^th December 2023.’[39]
[38] See R1, pp 105-111 and 119-127.
[39] R1, p 124.
With further particular reference to the Applicant’s stated intention of entering into remunerative employment upon a return to the community, the material contains a letter from Ms Rachel Schuster who purports to represent ‘Strong Movers Furniture Removals’. Her letter is dated 13 August 2024 and appears in the material.[40] Ms Schuster claims to have visited the Applicant in immigration detention and claims to ‘…have observed [the Applicant’s] reliability, leadership, and strong work ethic.’[41] During these visits she says the Applicant’s ‘positive demeanour and respectful attitude have made a significant impact during our visits.’[42] She concludes her letter with these words:
‘At Strong Movers Furniture Removals, we value employees who demonstrate reliability, leadership, and a strong work ethic. We believe that Mr. Siale [the Applicant] possesses these qualities and would be an excellent fit for our team. While we are not fully aware of the circumstances surrounding his detention and visa cancellation, we are firm believers in second chances and judging individuals by their current actions and character. We would be more than willing to offer Mr. Siale employment upon his release, confident that he would contribute positively to our business and enhance our team’s dynamic.’[43]
[40] A4, p 10.
[41] A4, p 10.
[42] A4, p 10.
[43] A4, p 10.
I think Ms Schuster’s purported offer of employment should be received with caution for several reasons:
·she does not say in what capacity she is writing this letter;
·she does not outline her relationship to the Applicant;
·why would a prospective employer visit a prospective employee in immigration detention over the course of four-five months?
·how can Ms Schuster make any comment about claimed qualities of reliability, leadership and strong work ethic in circumstances where the Applicant is in the closed confines of immigration detention and not engaged in remunerative employment for her or any other employer?
·why would an unrelated and prospective employer be concerned about a prospective employee’s ‘…strong sense of community and leadership…’ and whether or not that prospective employee was ‘…organising the boys in his unit to participate and eat meals as group [sic], attending prayer groups…?’;[44]
·how can a prospective employer make a definitive offer of employment in circumstances where that employer is ‘…not fully aware of the circumstances surrounding [the Applicant]’s detention and visa cancellation, ….’;[45] and
·
it should be noted Ms Schuster was not called to give oral evidence such that what she purports to say in this ‘offer of employment’ could have been tested in

cross-examination.
[44] A4, p 10.
[45] A4, p 10.
In the SFIC filed on the Applicant’s behalf, the following protective factors are identified:
(a)his step-son, who strongly motivates him to become a better person and responsible parent;
(b)his commitment to be a positive role model for his family, and to care for his ailing father, as well as to ensure his siblings are adequately cared for, financially, physically, emotionally, and psychologically;
(c)his stable accommodation where he can reside with his father and siblings;
(d)his employment history and offer of an ongoing/future job;
(e)his significant efforts to improve himself in various ways, demonstrating a generally proactive attitude towards self-improvement; and
(f)his commitment to effectively abstain from alcohol, except for social occasions.’[46]
[My emphasis]
[46] A1, p 21 [44].
What does the evidence say about risk?
The evidence contains a series of both troubling and unresolved elements which, to my mind, can only adversely speak to the Applicant’s current recidivist risk:
·further offending while on conditional release: the Applicant committed drug offences while on parole. I agree with the Respondent’s contention that offences committed while an individual is conditionally at liberty ought to be viewed particularly seriously and that, further, ‘In circumstances where the Applicant comes before the Tribunal asking for yet another chance, the Applicant’s exploitation of a second chance for the purposes of committing further offending ought to cause the Tribunal real concern.’[47] In particular, it should be noted the Applicant re-offended within weeks of being placed on a 18 month probation order on 16 January 2020. And further, he was returned to custody on 29 August 2021 following the commission of further offences following a release on parole only a month earlier on 5 July 2021;
[47] R2, p 9 [24].
·Queensland Corrective Services (‘QCS’) records: these records refer to the Applicant’s involvement in a series of seven ‘problematic incidents’ which all involved prisoner-on-prisoner assaults during the period 2 October 2020 and 10 February 2021. True it may be that none of these problematic incidents resulted in actual convictions, but the QCS records nevertheless contain an ‘Intensive Management Plan’ that had to be implemented to moderate the Applicant’s conduct. The relevant document contains the following:
‘Purpose of the Intensive Management Plan (IMP)
Prisoner Siale was placed on an Intensive Management Plan following his involvement in an Assault -
Prisoner on Prisoner on 09.04.21 where he was identified as the perpetrator of an assault via CCTV in the exercise yard.
Below is a history of problematic incidents the prisoner has been involved in:
-10.02.21 Assault - Serious - Prisoner on Prisoner - Multiple OMCG affiliated prisoners, assaulted another OMCG prisoner on the L2 Walkway.
-10.01.21 Assault - Serious - Prisoner on Prisoner - multiple prisoners, including prisoner Siale seriously assaulted a prisoner in N8.
-27.11.20 Assault - Other - Prisoner on Prisoner - Multiple Mongols/BF! afflicted prisoners, assaulted a prisoner N8.
- 28.10.20 Assault- Prisoner on Prisoner - the prisoner assaulted another prisoner in N8
- 14.10.20 Assault- Prisoner on Prisoner-the prisoner assaulted another prisoner in N16 .
- 06.10.20 Assault - Prisoner on Prisoner - the prisoner assaulted another prisoner in the toilet of N16.
• 02.10.20 Assault - Prisoner on Prisoner - the prisoner assaulted another prisoner in the exercise yard of N16.
Identified target behaviours for intensive management
• Assault or threat to assault staff or prisoners
• Non-Compliance with centre rules
• Behaviour disruptive to the good order of the centre’[48]
[48] R3, p 142.
·seven violent incidents in prison: the material contains reference to these incidents that occurred between 9 April 2021 and 19 October 2022. The nature of these incidents is self-evident from the records made by the QCS:
19 Oct 22 1:35:50 PM[49]
[49] R3, p 591.
Description: Assault prisoner on prisoner
At approximately 1115 hours on the 19th of October 2022, a code yellow was broadcast C4 prisoners fighting.
Responding staff with TROs attended the area and gave the prisoners directions to cease fighting immediately. [Name redacted in original] and SIALE, Lealofioamoa (F58043) Both prisoners ignored initial directions to cease fighting, TRO Young drew his MK4 Gas and gave further warnings to cease or gas would be deployed it was at this moment that both prisoners stopped fighting. Prisoners were then separated and had mechanical restraints applied.
Both prisoners were interviewed, and form 302 questionaries completed.;
15 May 22 8:51:03 AM[50]
[50] R3, p 597.
Description: At approximately 0851 hours there was a thumping sound coming from the prisoners holding tunnel to the floor in visits.
CCO D, Shaw checked the tunnel to find prisoner F58043 SIALE, Lealofioamoa and [ Name redacted in original] were fighting.
A code yellow was activated along with a code blue.
Both prisoners were directed to stop fighting to which they were compliant with
directions.
Both prisoners were removed from the tunnel to the search area in visits where they were separated.
[Name redacted in original] was placed in the visits airlock where he was assessed by the attending nurse. [Name redacted in original] was required to attend medical.
Prisoner SIALE was placed in an interview room in visits and was medical asses with no further treatment required.
Both prisoners were interview by Correctional Supervisor and Form 302 completed.
Prisoner SIALE was escorted back to his unit with no further issues.
[ Name redacted in original] and prisoner SIALE have been place on a safety order.
29 Jan 22 1:46:47 PM[51]
[51] R3, p 600.
Description: At approximately 1235 on Saturday 29th January 2022 a code yellow was initiated by D5 unit officers prisoners fighting. Both prisoners fighting were identified as prisoner [name redacted in original] and prisoner SIALE, Lealofioamoa (F58043).
D5 Unit officers on the floor gave direction to prisoners not involved to move to the exercise yard where most prisoners complied with direction.
D5 unit officers retreated to a safe location on the D5 unit stairs while giving clear direction to the prisoners fighting at the unit kitchen to cease, where both prisoners continued to fight.
Tactical Responding Officers (TRO) entered the unit with other responding officers and gave multiple directions to the prisoners fighting to cease where both prisoners continued to fight, while a small group of by standing prisoners ignored officer’s direction to move to the exercise yard.
TRO officers deployed chemical agents to gain compliance from the prisoners fighting where compliance was gained, with both prisoners following all directions and the small group of by standing prisoners following officers directions.
Responding officers entered D5 unit and secured both prisoners fighting and secured all prisoners not involved out in the exercise yard.
Both prisoner SIALE and [name redacted in original] were escorted to their cells where officers started decontaminating both prisoners and the code yellow was stood down.
Both prisoner SIALE and [name redacted in original] were assessed by Q-health medical staff where had no injuries and no need for any further assessment. Prisoner SIALE had a cut above his eye and required further treatment up at the medical centre.
12 Jan 22 2:55:49 PM[52]
[52] R3, p 604.
Description: At approximately 1354hrs on Wednesday 12th January 2022 a Corrective Services Officer in unit D5 witnessed Prisoner F58043 SIALE, Lealofioamoa fighting [name redacted in original] in the common area.
Both prisoners continued to fight, and the rest of the unit crowded around the area.
A code yellow was initiated, all non-involved prisoners were moved to the unit exercise yard, and the two involved prisoners were separated.
The rest of the unit were secured in cell during a systematic lockdown without further issue.
The perpetrators were interviewed. [Name redacted in original] presented with facial injuries and a code BLUE was activated.
[Name redacted in original] was assessed by the Nurse as requiring further treatment in the Health Services Centre and was escorted there.
Prisoner SIALE was assessed by the Nurse and had a small cut to his eye and knee not requiring any further treatment.
22 Oct 21 9:20:00 AM[53]
[53] R3, p 607.
Description: ASSAULT – Prisoner on Prisoner: Level 3
Approximately 0919 hours Friday 22nd October 2021 a code yellow – prisoners fighting –secure walkway outside medical was initiated.
Prisoners F58043 – SIALE, Lealofioamoa, – [Name redacted in original] – [Name redacted in original] were identified as perpetrators of the assault. [Name redacted in original] was identified as the victim.
On arrival of staff prisoner SIALE and [name redacted in original] were seen assaulting [name redacted in original] and directed to cease and move to the fence. Both complied and were mechanically restrained and escorted to the B side stores and secured in a cell.
A code blue was initiated for [name redacted in original] due to facial injuries. He was escorted into medical and assessed.
Code yellow and code blue was stood down. A form 302 was conducted on prisoners SIALE and [name redacted in original] and escorted back to their unit and secured in cell.
[Name redacted in original] was assessed by medical and it was determined he would need further medical treatment outside the centre.
Escorting staff were arranged, and the matrix was checked and a form 9 was created. Escorting staff were briefed and left by QAS with [name redacted in original] at approximately 1102 hours.
At approximately 1230. hours footage was reviewed and [name redacted in original] was identified as being involved in the assault. [Name redacted in original] was interviewed and placed on a safety order.
02 Jul 21 12:00:05 PM[54]
[54] R3, p 610.
Description: ASSAULT – PRISONER ON PRISONER
On 2 July 2021 at approximately 0950hrs “Code Yellow, N10, prisoners fighting” was called over the repeater channel. Appropriate responding staff attended.
On arrival to N10 airlock there were multiple prisoners involved in a physical altercation, multiple prisoners were stomping on TRO drew their MK4 CS Gas and made entry into N10, direction was given to cease, the group ceased and dispersed towards the rear of the unit [Names redacted in original] were identified as victims. They were mechanically restrained and removed from the unit. Code Blue N10 was called over the repeater channel as who required Q Health on site.
Due to the non-compliance and multi-perpetrators that couldn’t be identified. The unit went to a controlled lock away. [Name redacted in original] was immediately identified as a perpetrator, mechanically restrained, and removed from the unit.
Further investigation via CCTV footage identified prisoners’ SIALE, Lealofiamoa F58043 DOB 15/12/1997, [name redacted in original] being involved as a perpetrator. involvement was confirmed.
All prisoners were assessed by Q Health, no further treatment was required. All prisoners were placed on Safety Order in cell.’
09 Apr 21 9:54:27 AM[55]
[55] R3, p 614.
Description: At approximately 0907hrs a Code Yellow and Blue was called in N10 were observed to be fighting in the yard.’
·a pattern of repeated offending or conduct likely to give rise to further offending: there is an undeniable pattern of the Applicant seeking to impose himself in situations by the use of violence. This propensity does not appear to have moderated as a result of him being in the closed confines of either prison or immigration detention. If the Applicant cannot moderate his propensity towards violence in such closed confines how can it now be safely accepted and found that he would do any differently in the much less regulated environment of the general community?
·has the Applicant truly overcome his drug abuse issues? during cross-examination the Applicant was taken to an incident report recorded during his time in prison as recently as July 2023. This incident report noted that tactical response officers conducted a search of the Applicant’s prison cell and found Suboxone hidden in a hairbrush. The terms of the following transcript from the Hearing raise serious and significant concerns about the Applicant’s claimed intention to remain drug free:
‘MS PEAKE: Please turn to page 513 of the same document. This is an incident report, dated 31 July 2023. It states that:
“On Monday, 31 July 2023, tactical response officers conducted centre-wide target cell searches. A target search was conducted [in your cell]. During the target search, a hairbrush was found, and the end piece of the handle was removed. The tactical response officer found a sweetener packet inside the handle. The tactical response officer opened the sweetener packet,and found what appeared to be suboxone.”
What is suboxone?
APPLICANT: I don't know the right word for it.
MS PEAKE: Is it a drug?
APPLICANT: I believe so.
MS PEAKE: Why did you have the suboxone?
APPLICANT: That - at that time, I had another prisoner. We had shared the same box to take out, and he left his belongings in my thing. I even had him to write a - a statement about it, but the prison - the prison wouldn't accept it.
MS PEAKE: So are you saying, the suboxone was not yours?
APPLICANT: That was not mine.
MS PEAKE: Are you saying that it was found in his hairbrush?
APPLICANT: Yeah. We have two - two hairbrushes.
MS PEAKE: Did you take any of the suboxone?
APPLICANT: No. I don't take any.
MS PEAKE: Were you intending to take any of it, before they found it?
APPLICANT: No.
MS PEAKE: But the prison didn't accept?
APPLICANT: They didn't.
MS PEAKE: your statement?
APPLICANT: They didn't accept the fellow's statement, who had - who belonged the hairbrush. I tried to do it - to return it, but it wouldn't happen, so I had to accept the consequences they gave me.’[56]
·the state of the Applicant’s rehabilitation: to my mind, there is a very significant gap in the evidence around the state of the Applicant’s rehabilitation. We know from the Applicant’s own evidence that he has had chronic difficulties with illicit substance and alcohol abuse. We similarly know from the Applicant’s own oral and written evidence that he has, at least to some extent, engaged in rehabilitation. What we do not have is any independent expert evidence from a suitably qualified clinician who could provide an opinion about (1) psychopathological factors predisposing the Applicant to substance abuse; (2) the extent to which such predisposition have been causative of his offending; (3) whether those psychopathological symptoms are the subject of any clinically-derived pattern of treatment, management and control such that (4) such independent clinician could now provide this Tribunal with a definitive assessment of the Applicant’s current level of recidivist risk; and
·claimed rehabilitation not yet tested in the community: evidence from an independent clinician would have gone a long way to displacing this Tribunal’s concerns about the Applicant’s claimed insight into his substance abuse issues and his further claim of remaining substance abuse free if returned to the community. Absent such independent evidence, all we have is the Applicant’s own evidence in this regard together with any supporting evidence from those around him which amounts to little more than those people using their best endeavours to keep the Applicant involved in a rehabilitative process. Well-intentioned though their evidence may be, those supportive family members (and other now-claimed protective factors) have not prevented the Applicant from offending in the past.
[56] Transcript, p 34, lines 36-47; p 35, lines 1-22.
Assessment of recidivist risk

Having regard to the Applicant’s unresolved substance abuse issues and the absence of any independent clinical evidence around the psychopathological factors behind those issues, the only safe and realistic finding can be that the Applicant poses a real and not insignificant risk of committing further criminal offences if returned to the Australian community whose safety is regarded by the Direction as ‘…the highest priority of the Australian Government’[57]. The evidence does not convince me that the Applicant will not return to illicit substance and alcohol abuse-and to consequently reoffend-if this Tribunal were to restore his Visa status to remain here.
[57] Paragraph 8.1(1) of the Direction; See also paragraph 5.2(2) of the Direction.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a
non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.
Conclusion for Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found the nature and seriousness of the Applicant’s conduct to date has been of a ‘very serious’ nature;
(b)I have had regard to the totality of the Applicant’s offending history. I am satisfied that in the event of its recommission, the nature of the harm it would cumulatively represent to either an individual victim or the Australian community more generally would range from (1) undue consumption of the community’s law enforcement, judicial sentencing and custodial resources; (2) measurable material and/or economic harm; (3) psychological harm; (4) actual physical harm; and (5) quite conceivably, catastrophic harm;
(c)I have also found that, pursuant to paragraph 8.1.2(1) of the Direction, the harm resulting from the Applicant’s recommission of offending is so serious that any risk of its recommission would be unacceptable to the Australian community. This is especially the case with regard to his offending convicted as ‘unlawful use of motor vehicles, aircraft or vessels’, ‘contravention of domestic violence order (aggravated offence)’, and ‘unlawful possession of weapons category D/H/R weapon-short firearm in public’; and
(d)I have found that this Applicant now represents a real and not insignificant level of recidivist risk of committing further criminal offences if returned to the Australian community whose safety is regarded by the Direction as ‘…the highest priority of the Australian Government’.[58]
[58] Paragraph 8.1(1) of the Direction.
My analysis of the material leads me to a finding that this Primary Consideration 1 is of a ‘very heavy’, level of weight towards this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
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.
A summary of the Applicant’s relevant conduct
The material before the Tribunal also provides detail around the conduct giving rise to the making of a temporary DVO on 4 November 2019. This temporary DVO became a final DVO on 16 December 2019 (‘the subject DVO’). The Applicant’s conduct is described thus:
‘3. Ground for a protection order
State grounds as to why a protection order is necessary or desirable to protect the aggrieved. It must be shown that domestic violence has occurred. Include specific example of behaviour by the respondent. Attach extra pages if necessary.
The aggrieved in this matter is [name redacted in original], the respondent Is Lealofioamoa Jordan SIALE (Jordan). The aggrieved and respondent have been in a couple relationship for approximately 1-6 months as described by both parties. They have no children together and the respondent has temporarily been staying at the aggrieved's address for approximately one month.
On the 31st day of October 2019 at about 7:15am, police were called to attend [address redacted in original] in relation to a domestic disturbance between the aggrieved and respondent. Upon police attending the address at approximately 7:30am, they could hear yelling and screaming from a male and female within the address.
Police have entered the address and located the aggrieved and respondent and separated both parties and obtained versions of events.
From similar versions obtained from both parties, police will allege the following occurred. At around 6:30am both parties have woken up and almost immediately engaged in a verbal argument. The respondent has accused the aggrieved of stealing his bag from him and the aggrieved has denied this having no knowledge of this. Both parties have continued arguing for some time before it has escalated to the respondent physically pushing the aggrieved and kicking the vacuum cleaner at her. The aggrieved has then left the address to get away from the respondent as she was fearful of further physical violence. The aggrieved has run out the back door and hidden around the side of the house until the respondent followed and located her. The aggrieved has then run out onto the street to get away from the respondent who has then tackled her to the ground. The aggrieved has grazed her knee and her right elbow as a result. The aggrieved has then broken free from the respondent and run up the street onto a neighbouring street and to a friend's residence where she has sought refuge and contacted police.
After about 10 minutes of waiting at the friend's address the aggrieved has then returned home where the respondent was still present. The aggrieved has gone back inside the dwelling and the respondent has continued to argue with the aggrieved and has since located his bag which he continued to accuse the aggrieved of hiding. The respondent has then pushed the aggrieved in the kitchen, causing her to bump into the stove top. The aggrieved has then run to her bedroom and closed the door, sitting up against It to prevent the respondent from entering. The respondent has managed to force his way into the bedroom and then begun punching the aggrieved In the face about four times. The aggrieved has raised her arms to protect her face however has been hit hard in the face causing a large amount of swelling above her right eye. Police have attended just after this and the situation has deescalated upon parties separating.
Police observed the injuries to the aggrieved as per her version and photographed these injuries. The respondent admitted to assaulting the aggrieved however could not provide a detailed version of events as to how things had unfolded or why. The aggrieved was observed to also have a black left eye and large bruise on her left arm. When questioned about these injuries, the aggrieved stated these were caused by the respondent the day prior during a similar incident.
Police believe that it Is necessary and desirable to protect the aggrieved as this Incident appears to be ongoing as the aggrieved alleges she has been physically assaulted by the respondent on two occasions causing visible injuries. Police believe without protection and conditions in place to place to prevent the respondent approaching the aggrieved, it is likely that further physical violence will occur and the aggrieved is at risk of further serious injury.’[59]
[My emphasis]
[59] R3, p 444.
The Applicant has convictions for five contraventions of the subject DVO to protect his former partner, Ms HMR. A copy of the subject DVO appears in the material.[60] On

16 January 2020 the Applicant was placed on probation for a period of 18 months consequent upon on two convicted breaches of the subject DVO. On 11 June 2021 the Applicant was convicted of three further breaches of the subject DVO for which he was sentenced to a head custodial term of imprisonment of three months.
[60] R3, p 22.
Particulars of the two breaches of the subject DVO for which the Applicant was convicted and sentenced on 16 January 2020 appear in the material. The conduct giving rise to the breaches is recorded in a Sentencing Schedule prepared by the Queensland Police Service. The first of those two breaches occurred on 3 December 2019:
‘Charge 2 - Contravention Domestic Violence Order
The aggrieved in this matter is [Ms HMR].
There is a current domestic violence order in place naming the defendant as the respondent, protecting the aggrieved. The order was issued in Beenleigh Magistrates Court on the 4th of November 2019 with a copy served on the defendant by Constable PARSONS on the 8th of November 2019.
The conditions of the order are mandatory conditions and four others, including:
That the respondent is prohibited from entering, attempting to enter or approaching to within 100 metres of where the aggrieved lives, works or frequents.
Approximately 12:45 pm on the 3rd of December 2019, police attended [address redacted] in relation to a loud domestic incident occurring. Police heard yelling, screaming and banging coming from inside the house. Police knocked loudly at the locked front door and declared themselves as police however the disturbance continued. Police entered the back of the property observing a silver Holden Commodore with no registration plate on the front, idling in the back yard. Police attempted to stop the vehicle however the driver decamped from the address. Police observed the vehicle to be lowered with damage to the front fenders due to the tyres rubbing and a green "P" plate in the back window.
Police entered the back-laundry door of the premises declaring themselves as police. The defendant has stood in the hallway looking at police.
Police later obtained a signed notebook statement from the aggrieved who stated [address redacted] was her residential address and advised the defendant had come over about half an hour earlier demanding to know where she had been the day before. the aggrieved alleged the defendant hit her across the back of the head and had broken her fan. Police photographed a broken pedestal fan in the aggrieved's bedroom whether the disturbance could be heard taking place.’[61]
[61] R3, p 33.
The second of those two breaches occurred on 4 December 2019. The conduct giving rise to this breach is recorded in these terms in a Sentencing Schedule prepared by the Queensland Police Service:
‘Charge 5 - Contravention Domestic Violence Order
The next day, approximately 1 :30pm on the 4th of December 2019, uniformed police in a marked vehicle were conducting patrols of [street and suburb name redacted] when they sighted the same silver Holden Commodore in the back yard of [address redacted]. Police blocked the car in which initially appeared intent on evading police. The vehicle reversed quickly and police have followed on foot, observing the defendant exit the front passenger door and jump the back fence.’[62]
[62] R3, p 34.
The material before the Tribunal confirms that the Applicant pleaded guilty to the above two instances of conduct that breached the subject DVO.[63] For these two breaches, the Applicant was dealt with on 16 January 2020 and placed on probation for 18 months. The material before the Tribunal also confirms that the Applicant pleaded guilty to three further breaches of the subject DVO.[64] For these three further breaches, the Applicant was dealt with on 11 June 2021 with the court imposing a head custodial term of three months.
[63] R3, p 460.
[64] R1, pp 36-37. The date of these three breaches are 29 February 2020, 21 April 2020 and 23 April 2020.
The two inquiries compelled by the Direction
Paragraph 8.2 of the Direction compels two initial inquiries. First it is necessary to ascertain whether Ms HMR was a member of this Applicant’s family at the time of the above recorded incidents giving rise to the making of the subject DVO and at the time he breached it five times after it was made. Second, it is necessary to ascertain whether such conduct perpetrated by the Applicant for which he was either charged and convicted, or for which there is evidence of such conduct in independent and authoritative material, constitutes domestic violence for present purposes. I will address each question in turn.
First enquiry: was Ms HMR a member of the Applicant’s family at the relevant time?
Paragraph 4(1) of the Direction provides that ‘….a person who has, or has had, an intimate personal relationship with the relevant person’ is a ‘member of the person’s family’ for the purposes of the definition of family violence. It will be recalled that the above-described circumstances of the Applicant’s conduct (on 31 October 2019) recorded that he and Ms HMR ‘…have been in a couple relationship for approximately 1-6 months as described by both parties.’ There is surely nothing to cavil with the proposition and finding that Ms HMR was a member of the Applicant’s family at the time he committed acts of family violence against her. I so find.
Second enquiry: did the Applicant’s conduct towards Ms HMR constitute family violence?
‘Family violence’ is defined in the Direction. It is defined as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful’.[65] This definition poses two separate questions: (1) was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family? and (2) was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful?
[65] Paragraph 4(1) of the Direction.
With reference to the first question, I find the Applicant’s conduct perpetrated on

31 October 2019 giving rise to making of the subject DVO plus at least one instance of his conduct giving rise to one of his five convicted breaches of the subject DVO was conduct that was violent, threatening, or other behaviour that coerced or controlled Ms HMR. With reference to the second question, I find that the Applicant’s conduct perpetrated on

31 October 2019 plus at least one instance of his conduct giving rise to his five convicted breaches of the subject DVO was conduct that was violent, threatening, and that it was behaviour which caused Ms HMR to be fearful. I so find.
Is this Primary Consideration 2 engaged for present purpose?
The question becomes whether the Applicant’s conduct is captured by paragraph 8.2 of the Direction? Paragraph 8.2(2) of the Direction brings domestically violent conduct into its orbit where a person has been convicted of an offence involving family violence (paragraph 8.2(a)) ‘and/or’ there is information or evidence from an independent and authoritative source indicating the person is, or has been involved in the perpetration of family violence (paragraph 8.2(b)).
I will make these findings:
·that the Applicant’s above-described conduct (on 31 October 2019) giving rise to the making of the subject DVO plus at least one instance of his conduct giving rise to one of his five convicted breaches of the subject DVO involved the perpetration of actual violence against Ms HMR. However, the Applicant has not been convicted with an offence of actual violence perpetrated against Ms HMR arising from a domestic context. Out of an abundance of caution, I will find that the auspices of paragraph 8.2(2)(a) of the Direction are not engaged for present purposes; and
·that the descriptions of the conduct that (1) gave rise to the making of the subject DVO plus (2) his conduct resulting in at least one of the five convicted breaches of the subject DVO[66] is conduct captured by the auspices of paragraph 8.2(2)(b) of the Direction. This is because it is conduct which has been recorded by independent and authoritative sources demonstrating the Applicant’s involvement in the perpetration of family violence. Accordingly, this specific paragraph 8.2(2)(b) alone serves to engage the operation of this Primary Consideration 2 for present purposes. This is because of the ‘and/or’ notation appearing between paragraphs 8.2(2)(a) and (b) of the Direction.
[66] Specifically, his conduct perpetrated on 3 December 2019.
Assessment of the seriousness of the Applicant’s family violence
I will now consider each of the factors in paragraph 8.2(3)(a) - (d) in turn for the purposes of assessing the nature and seriousness of the Applicant’s family violence conduct.
Paragraph 8.2(3)(a): compels an analysis of the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness. The Applicant has committed five breaches of the subject DVO. His offending history runs over about four years and this equates to one such breach for each year of offending. It can thus be found that there has been a frequency to his family violence conduct. I am not satisfied that his family violence conduct evidences a trend of increasing seriousness. Of the five breaches, only one involved the perpetration of actual violence. The remaining four breaches were ‘technical’ breaches of the subject DVO in the sense that the Applicant breached the term of the subject DVO prohibiting him from approaching to within 100 meters of where Ms HMR lives, works or frequents. To my mind, only the frequency of the Applicant’s domestically violent conduct can speak to its very serious nature.
Paragraph 8.2(3)(b): requires consideration of the cumulative effect of repeated acts of family violence. There is little or nothing to cavil with the proposition and finding that the Applicant’s conduct did traumatise Ms HMR. As best as I understood the material, it does not contain any reference to a clinical note or report about the extent of any physical or mental health symptoms that are directly attributable to the Applicant’s conduct. It should also be noted (and found) that the Applicant’s domestically violent conduct has unnecessarily consumed the community’s (1) policing resources; (2) judicial sentencing resources; and (3) custodial resources. These cumulative effects of the Applicant’s repeated acts of family violence cumulatively speak to the very serious nature of that conduct.

It is also worth mentioning the other minor children with whom the Applicant has had ties in Australia. Exhibit A5 contains reference to a Ms Setadara Laurenson, who is described as a very close family friend of the Applicant. Her four minor children are aged three, two, five and six years respectively. While there is no statement from Ms Laurenson there is both written and oral evidence from the abovementioned Mr Peter Lopeti who has three minor aged children aged four, two and seven months, respectively. In his written evidence,

Mr Lopeti said that he and the Applicant had been close friends for the past 15 years.

Mr Lopeti said, ‘I consider him like a brother, my daughters call him “uncle” and my parents regard him as another son.’[194] These sentiments were echoed in Mr Lopeti’s oral evidence.
[194] A3, p 14.
Application of factors at paragraph 8.4(4) of the Direction to the other relevant group of children
Sub-paragraph (a): the evidence speaks convincingly towards the Applicant maintaining a sustained and consistent pattern of contact with these minor siblings, minor niece and nephews and other minor children. The evidence is convincing because it is convincingly corroborated by reliable third parties like his father, his sisters and long-term close friend Mr Lopeti. There is thus a demonstrable durability in the relationship between the Applicant and these children. This sub-paragraph (a) militates in favour of allocation of a heavy level of weight to the Applicant.
Sub-paragraph (b): I think the evidence about the likelihood of the Applicant playing at least some measure of a parental role in the future lives of these children. In my respectful view, this may very well be a cultural bi-product of the closeness in such relationships one often finds in South-Sea Islander families. One hesitates to place great reliance on the word parental appearing in the wording of this sub-paragraph but I am satisfied the Applicant is likely to play some measure of a positive-and on occasions, parental-role in the lives of these children until they attain the age of 18 years. There is significant opportunity for him to do so due to (1) the number of these children and (2) the cumulative years it will take for each of them to attain the age of majority. This sub-paragraph (a) militates in favour of allocation of a heavy level of weight to the Applicant.
Sub-paragraph (c): the evidence seems silent about the extent to which the Applicant’s prior conduct has negatively impacted or the extent to which his future conduct could negatively impact any of the subject children. This sub-paragraph should be put to one side and rendered neutral for present purposes.
Sub-paragraph (d): there is evidence of the Applicant maintaining a pattern of non-in-person contact with these children.[195] There is nothing to suggest he would not be able to maintain non-in-person contact with these children from New Zealand. This sub-paragraph does not assist the Applicant.
[195] See for example, the Applicant’s contact with the children of his sister Ms Moors which has occurred via FaceTime on a weekly basis: Transcript, p 80, lines 40-45; p 81, lines 1-7.
Sub-paragraph (e): quite obviously, other people already fulfill primary parental roles in relation to these children. However, one need look no further than the abovementioned evidence of the Applicant’s sister, Ms Christina Lealaitafea, to understand how the Applicant can make a contribution in terms of a parental role when circumstances require it. This
sub-paragraph does not weigh against the Applicant and, if anything, moderately assists him.
Sub-paragraph (f): the evidence seems silent as to whether any of these other relevant minor children have expressed any views about the Applicant being removed. Many of them are too young to provide any such evidence. But it seems clear from the Applicant’s statement as quoted above[196] his more mature aged siblings would doubtlessly be impacted by his removal. This sub-paragraph (a) militates in favour of allocation of a heavy level of weight to the Applicant.
[196] See [111] of these Reasons.
Sub-paragraphs (g) and (h): the evidence is silent about any of the elements appearing in both of these sub-paragraphs both of which should be put to one side and rendered neutral for present purposes.
Findings about the other relevant minor children
Having regard to the evidence referrable to the applicable componentry of paragraph 8.4(4) of the Direction, I arrive at a finding that a moderately heavy level of weight should be allocated to the best interests of these other relevant minor children in Australia about the extent to which they would be affected by the Applicant’s permanent removal to New Zealand.
Conclusion: Primary Consideration 4
When I conjoin the moderate weight allocable to the best interests of the two stepchildren together with the moderately heavy weight, I have allocated to the second category of children, I safely arrive at a finding that a cumulative heavy level of weight is allocable to this Primary Consideration 4 in favour of the Applicant.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[197] The Direction further explains:
‘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 [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[198]
[197] Paragraph 8.5(3) of the Direction.
[198] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country which is evidenced by a significant number of breaches of the Australian criminal law. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a 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:[199]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[199] Paragraph 8.5(2) of the Direction.
The Applicant’s criminal history contains convictions that fall within the auspices of the abovementioned sub-paragraphs 8.5(2)(a)[200] and (d).[201] The commission of these offences (falling within the auspices of sub-paragraphs 8.5(2)(a) and (d)) means that the Australian community expects the Australian Government can and should refuse to set aside the mandatory cancellation of his Visa.
[200] Acts of family violence.
[201] Commission of crimes against the police in the performance of their duties.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(5), (6) and (7) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa (paragraph 5.2(5));
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time (paragraph 5.2(5));
(c)Australia may afford a higher level of tolerance towards 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 (paragraph 5.2(6));
(d)the nature of a 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 a visa outcome that is not adverse to the non-citizen (paragraph 5.2(7)); and
(e)the inherent nature of the non-citizen’s conduct is so serious that it displaces even strong countervailing factors militating in favour of a positive visa outcome for a non-citizen even in circumstances where the non-citizen does not pose a measurable risk of harm to the Australian community (paragraph 5.2(8)).
In relation to sub-paragraph (a) of the immediately preceding paragraph [129], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class TY Subclass 444 Special Category (Temporary) visa until it was mandatorily cancelled on
[202] R1, pp 168-173.
[203] Regulation 444.511 of the Migration Regulations 1994 (Cth).
[204] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
28 September 2021.[202] This Visa permits a citizen of New Zealand to remain in Australia indefinitely.[203] As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[204] Therefore, this sub-paragraph (a) is not applicable to the Applicant.
In relation to sub-paragraph (b) of the abovementioned paragraph [129], the Applicant has spent about the last 24-25 years in Australia since arriving here aged one year and three months in March 1999. He has spent 93 per cent of his life in this country and is currently aged 26 years. He has a moderate work history in Australia. He has not fathered any biological children in Australia and is, to an extent, involved in the care of a stepchild/ren in Australia. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(5) of the Direction.
In relation to sub-paragraph(c) of the abovementioned paragraph [129], I repeat that the Applicant has, since his arrival in 1999, spent about 24-25 years or 93 per cent of his life in Australia and that he has been in Australia from a very young age. This means the Australian community may afford a higher level of tolerance of criminal or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the abovementioned paragraph [129], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the sheer scope and extent of his offending and its resulting harm thus far has been of such a serious magnitude as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (e) of the abovementioned paragraph [129], I am of the view that (1) the Applicant’s conduct on 6 July 2020 reported to police as him running through the backyards of private residences while in unlawful possession of a shortened firearm;[205] and (2) his conduct on 31 October 2019 giving rise to the making of the subject DVO (on 16 December 2019)[206] is so serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I have found that the Applicant poses a real and not insignificant recidivist risk if returned to the Australian community. This means that the balance of the abovementioned sub-paragraph (e)[207] does not need ventilation here.
[205] Charged and convicted on 11 June 2021 as ‘possession of weapons category D/H\R weapon-short firearm in public’.
[206] See R3, pp 444-445 ‘Grounds for protection order’.
[207] That is, about whether the Applicant does not pose a measurable risk of causing physical harm to the Australian community.
Having regard to the above discussion around sub-paragraphs (a)–(e) (inclusive) referenced in paragraph [129] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very serious nature of the totality of his offending (as an adult) this Primary Consideration 5 compels a finding that the community expects the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
I acknowledge the Applicant’s contention about the potential for a specific consequence(s) arising from an adverse outcome for him in the instant matter. The contention involves him being irreversibly excluded from re-entering Australia if he does not succeed in the instant Hearing. I will break this submission down into two consequences.
First, to the extent irreversible exclusion constitutes a legal consequence of this decision, such a contention does not activate the terms of paragraph 9.1 of the Direction. If the instant outcome is adverse to the Applicant, the law is plain and clear: section 501E of the Act would prohibit the Applicant from making an application for another visa.
Second, to the extent irreversible exclusion gives rise to any personal consequence for the Applicant, the following can be noted: (1) to the extent he may experience emotional harm about that, such a factor should be rightly considered in the section of these Reasons relating to impediments upon a forced return to New Zealand; (2) to the extent he will be separated from immediate and extended family and social ties he has to this country, those matters are for consideration pursuant to paragraph 8.3 of the Direction; and (3) to the extent he will be separated from any minor children with whom he is connected in Australia, those matters are for consideration pursuant to paragraph 8.4 of the Direction.
Accordingly it would be unsafe to allocate any weight to the contended legal consequence of an adverse decision for the Applicant in the instant Hearing. Only neutral weight can be allocated to this Other Consideration (a).
Other Consideration (c): Impact on Australian business interests
The SFIC’s of both parties contend that neutral weight should be allocated to this Other Consideration (c).[208] This position was confirmed by the parties during closing submissions at the instant Hearing before me.[209] Accordingly, I will allocate neutral weight to this Other Consideration (c) for present purposes.
Other Consideration (b): Extent of impediments if removed
[208] A1, p 33 [3]; R2, p 25 [105].
[209] Transcript, p 138, lines 20-21 (Applicant); p 141, lines 46-47; p 142 lines 1-5 (Respondent).
What does the evidence say
In his most recent statement, the Applicant describes the impediments he would face if returned to New Zealand in these terms:
‘Impediments to Returning to New Zealand
83. I have lived in Australia since I was two years old.
84. I have no ties or family in New Zealand; there is nothing there for me.
85. I know that my Dad would not move to New Zealand because he cannot sacrifice the futures of my little siblings as there are less opportunities in New Zealand, and generally life is harder there.
86. I fear I will not get any first-hand support in New Zealand from my family like I do here in Australia, especially with my ongoing rehabilitation as I do not have the support network there.’[210]
[210] R1, p 99.
As part of his revocation application, the following contentions were put on behalf of the Applicant:
‘92. Our client has no known family ties in New Zealand and advises that he has been suicidal in the past. As such, it is submitted that the distress of being returned to a country that he has not lived in since he was two years of age and where he has no known relatives.
93. It is submitted that psychological and emotional impact, will be compounded by his separation from his familial support structures which are vital to his relapse prevention plan, including his sisters, Victoria and Monikah, who will assist our client in entering a rehabilitation facility. This is an impediment to our client's return to New Zealand and his successful rehabilitation from substance abuse.’[211]
[211] R1, p 83 [92]-[93]; A1, pp 31-32 [95]-[103].
During cross-examination, the Applicant was questioned about impediments he would face upon a return to New Zealand. Those questions were concerned with the state of his physical and mental health and his capacity to find employment in New Zealand:
‘MS PEAKE: Would you say that you are of good physical and mental health?
APPLICANT: To others?
MS PEAKE: No, just yourself. So do you have good physical health and do you have good mental health?
APPLICANT: Yes. I have good – my physical health is strong. You know, I train three times a day. Mentally, you know, when I do boil up or ready to snap, you know, I’m there, straight physical work, boxing, training. I even seek help to my family. It’s something I’ve never done.
MS PEAKE: So your physical health, you’re saying, is good?
APPLICANT: Yes.
MS PEAKE: What about your mental health?
APPLICANT: It’s good too.
MS PEAKE: Your mental health is good?
APPLICANT: Yes.
MS PEAKE: Okay. You don’t have any diagnoses for any mental health conditions, do you?
APPLICANT: Before with my anxiety, yes I do. But for you mean like now, like, I don’t understand your question.
MS PEAKE: Sorry. I’ll repeat the question. Have you been diagnosed by a professional, so a doctor, a psychologist, a psychiatrist, with any mental health conditions?
APPLICANT: Not by a professional. But I have spoken to my psych and that about it.
MS PEAKE: Okay. So is there any reason why you wouldn’t be able to find a job if you returned to New Zealand?
APPLICANT: I don’t think I can. Life there is harder, I’ve been told.
MS PEAKE: But why wouldn’t you be able to get a job?
APPLICANT: Because over there, there’s no options or nothing, I’m told. There’s no opportunities. That’s the reason why we moved to Australia.
MS PEAKE: But you have experience in furniture removal, asbestos removal, stone masonry, I think cleaning was on the list as well?
APPLICANT: Yes. But that’s not going to support – they don’t support me in a house and that. There’s not many jobs and that there for that kind of stuff.
MS PEAKE: How do you know?
APPLICANT: I’ve just been told that.’[212]
[212] Transcript, p 58, lines 30-46; p 59, lines 1-19.
Factors to be taken into account

Paragraph 9.2 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): the Applicant is 26-years of age and of an age bracket where it can safely be found that he is in the prime of his life. In his Personal Circumstances Form he ticked the ‘No’ box in response to the question about whether he had any diagnosed medical or psychological conditions.[213] This evidence was confirmed in cross-examination as outlined above. I am satisfied that the Applicant’s age and state of mental and physical health are not impediments to his return and resettlement in New Zealand.
[213] R1, p 64.
Paragraph 9.2(1)(b): the evidence is not suggestive of any substantial language or cultural barriers impeding the Applicant’s re-settlement in New Zealand. This Tribunal (differently constituted) has previously noted: ‘New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.’[214] This is my view (and finding) as well. There are no substantial language or cultural barriers impeding the Applicant’s return and re-settlement in New Zealand.
[214] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in New Zealand. First, with reference to the medical support, the Applicant is in a good state of physical and mental health. It seems clear that any emergent healthcare requirements that may confront him in New Zealand would be able to be dealt with by publicly available medical care in that country. The Applicant will have access to the same level of such care as would be generally available to other citizens of that country. The question of medical support in New Zealand is not an impediment to his return and re-settlement there.
Second, in terms of economic support available to the Applicant in New Zealand, the Applicant does have some measure of a history of engagement with remunerative employment in Australia. Despite his resistance towards a suggestion about being able to find work in New Zealand, it seems more likely than not that given his age and relevant work experience in Australia, he would be able to do so. Should he require government-type benefits during an interim phase of re-settling in New Zealand, he will have available to him the same level of such benefits as would be available to other qualifying citizens of that country. The question of economic support in New Zealand is, at worst, a relatively minor but not insurmountable impediment to his return and re-settlement there.
Third, I will look at whether a lack of social support in New Zealand now presents as an impediment to his return and re-settlement there. The Applicant has lived the significant majority of his life in Australia. The overwhelming percentage of his immediate, extended and social ties are to this country. But this is not to suggest that if removed to New Zealand, he would not be able to possibly make contact with a family member there or that he would otherwise not be able to re-establish new ties and contacts in that country. Be that as it may, the absence of social support-at least for the first three, six or twelve months of the Applicant’s return to New Zealand, will create a difficulty for him. I will find that the relative absence of social support does constitute an impediment to the Applicant’s return and resettlement in New Zealand but that such impediment is not insurmountable.
Findings about impediments
My findings about impediments are as follows:
·the Applicant’s age and state of physical health are not impediments to his return and resettlement in New Zealand;
·there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in New Zealand;
·the Applicant is not likely to experience an impediment in the form of a difficulty to obtain medical support and care in New Zealand should his personal health circumstances require it;
·in terms of economic support in New Zealand, the Applicant may, at worst, experience a relatively minor but not insurmountable impediment upon his return and re-settlement there; and
·in terms of social support in New Zealand, I have found that the Applicant will experience an impediment upon a return and resettlement to that country but that such impediment is not insurmountable.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, a moderately strong level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of moderately strong weight in favour of revocation; and
(c)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: is of a very heavy, level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: is of a heavy, level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 3: is of a heavy level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of a heavy level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: is of a heavy level of weight in favour of affirming the Decision Under Review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 plus Other Consideration (b) are outweighed by the combined respective weights I have allocated to Primary Considerations 1, 2 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 3 June 2024 to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 158 (one hundred and fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis

................[SGD]…..............
Associate
Dated: 12 September 2024

Dates of hearing: 19, 20 and 26 August 2024

Solicitor for the Applicant: Ms Tiffany Ozherelyeva (Lawyer)

Samuta McComber Lawyers

Solicitor for the Respondent: Ms Megan Peake (Senior Associate)

Clayton Utz Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

RESPONDENT SUBMISSIONS

R1

Section 501G documents

Various

21 June 2024

R2

Statement of Facts, Issues and Contentions (‘SFIC’)

7 August 2024

7 August 2024

R3

Tender bundle

Various

7 August 2024

R4

Applicant’s further submissions about primary consideration 3 tendered by the Respondent

23 August 2024

26 August 2024

R5

Applicant’s further submissions about primary consideration 4 tendered by the Respondent

23 August 2024

26 August 2024

APPLICANT SUBMISSIONS

A1

SFIC

16 July 2024

16 July 2024

A2

Reply to Respondent’s SFIC

12 August 2024

12 August 2024

A3

Tender bundle

Various

12 August 2024

A4

Further tender bundle

Various

13 August 2024

A5

List of relevant people under primary considerations 3 and 4

21 August 2024

21 August 2024

ANNEXURE B

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Section 501G documents	Various	21 June 2024
R2	Statement of Facts, Issues and Contentions (‘SFIC’)	7 August 2024	7 August 2024
R3	Tender bundle	Various	7 August 2024
R4	Applicant’s further submissions about primary consideration 3 tendered by the Respondent	23 August 2024	26 August 2024
R5	Applicant’s further submissions about primary consideration 4 tendered by the Respondent	23 August 2024	26 August 2024
APPLICANT SUBMISSIONS
A1	SFIC	16 July 2024	16 July 2024
A2	Reply to Respondent’s SFIC	12 August 2024	12 August 2024
A3	Tender bundle	Various	12 August 2024
A4	Further tender bundle	Various	13 August 2024
A5	List of relevant people under primary considerations 3 and 4	21 August 2024	21 August 2024

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2024/3783

GENERAL DIVISION )
Re: Lealofioamoa Jordan Siale

Applicant
And: Minister for Immigration and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Senior Member Theodore Tavoularis
DATE:   27 August 2024
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 3 June 2024 to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.

……….............[SGD]..........................
Senior Member Theodore Tavoularis

Dates of hearing:	19, 20 and 26 August 2024
Solicitor for the Applicant:	Ms Tiffany Ozherelyeva (Lawyer)
Samuta McComber Lawyers
Solicitor for the Respondent:	Ms Megan Peake (Senior Associate)
Clayton Utz Lawyers