Taofi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2024] AATA 1341
•3 June 2024
Taofi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 1341 (3 June 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1458
Re:Semisi Moungahea Taofi
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: R Cameron, Senior Member
Date: 3 June 2024
Place:Melbourne
The Tribunal affirms the reviewable decision
.................................[sgd].......................................
R Cameron, Senior Member
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa –– whether there is ‘another reason’ to revoke mandatory cancellation decision under s 501CA(4) of the Migration Act 1958 – crimes of a violence nature – crimes against women and children -- family violence – best interests of minor children – decision affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
Buntin v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCA 1055
DTR21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1237
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
INTRODUCTION
The applicant seeks a review in this Tribunal of a decision made by a delegate of the respondent on 12 March 2024 under s 501CA (4) of the Migration Act 1958 (’the Act’) not to revoke the mandatory cancellation of his Class BC Subclass Partner visa (’the visa’) (’the reviewable decision’).
The applicant is a citizen of Tonga. He is presently 40 years of age having been born in May 1984. He arrived in Australia in 2009 as a 25-year-old.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both documentary and oral evidence before the Tribunal.
The documentary evidence consisted of the “G” documents, supplementary “G” documents and a further bundle of supplementary “G” documents lodged by the respondent as is customary in applications of this kind.
Additionally, the applicant lodged a document from the Men’s Referral Service which confirmed that he had undertaken a Brief Intervention Service (‘BIS’) program provided by that service from 16 February 2024 to 17 April 2024 and also a letter from a prospective employer indicating that a job opportunity is available to him should he be released back into the community dated 9 April 2024.
The applicant gave oral evidence and was searchingly cross-examined. No other witnesses gave oral evidence.
The applicant, in addition to the two documents lodged by him, relied upon the relevant material that was before the delegate when the reviewable decision was made.[1] This material included a relatively detailed witness statement made by the applicant on 13 February 2024 and a shorter statement, also made by him, dated 4 May 2022.
[1]G6 - G25. In this regard, references to “G” documents are references to documents required to be given to the applicant under s 501G(2) of the Act. .
THE RELEVENT SECTIONS OF THE MIGRATION ACT
Section 501(3A) of the Act, specifies that the Minister (or their delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test prescribed by s 501(3A)(a) is set out in s 501(6) of the Act. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Migration Act 1958 (Cth), s 501(7)(c).
Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied, after the person has made representations to them, that the visa holder passes the character test, or that there is ‘another reason’ why the original decision should be revoked.
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction is Direction No. 99 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (’Direction 99’).
DIRECTION 99
It is, by way of introduction, appropriate to refer to several paragraphs found in Direction 99. Such provisions guide decision-makers in the application of the Direction. Further reference to the paragraphs in Direction 99 specifying the primary and the other considerations required to be considered by the Tribunal as decision-maker, where relevant, will be referred to later in these reasons when each of those considerations are applied to the facts of this application.
Paragraph 5.2, “Principles”, provides the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. The contents of that clause are referred to in their entirety for their full force and effect. However, several of them should be specifically referred to. It is provided that:
(a)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 (paragraph 5.2(1));
(b)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 (paragraph 5.2 (2));
(c)The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph 5.2(3));
(d)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 (paragraph 5.2(4));
(e)With respect to decisions to refuse, cancel, and revoke the cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years (paragraph 5.2(5));
(f)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 revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(6)).
Paragraph 6, Making a decision, provides that, informed by the principles in paragraph 5.2, account must be taken of the considerations identified in paragraph 8, Primary considerations, and paragraph 9, Other considerations, where relevant to the decision.
Paragraph 7, Taking the relevant considerations into account, provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
Paragraph 8, Primary considerations, mandates that in deciding whether to revoke the mandatory cancellation, the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9, Other considerations, provides in making decisions under s 501(1), 501(2) or 501CA(4), the following considerations must also be taken into account, where relevant, and include, but are not limited to:
(1)legal consequences of the decision;
(2)extent of impediments if removed;
(3)impact on victims;
(4)impact on Australian business interests.
ISSUES BEFORE THE TRIBUNAL
There is sufficient evidence before the Tribunal to demonstrate that the applicant has made representations to the respondent in compliance with s 501CA(4)(a) of the Act.[3] That leaves two issues for determination by the Tribunal:
(a)whether the applicant passes the character test; and
(b)if he does not, whether there is another reason why the decision to cancel the visa should be revoked.
[3] See, G10-G19, 65-95, for representations made by the applicant to the respondent which were considered by the delegate in making the reviewable decision..
THE CHARACTER TEST
The applicant does not pass the character test. He does not do so, by operation of s 501(6)(a) and s 501(7)(c) of the Act, as he has a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more in the Magistrates’ Court of Victoria on 24 February 2022. The term of imprisonment was an aggregate sentence of 12 months to be served concurrently.[4]
[4] Section 5AB of the Act provides that the provisions of such Act apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.
The Applicant’s Offending
There were several sources of documentary evidence that provided details of the applicant’s offending. They included a national criminal history check,[5] a transcript of proceedings before the Magistrates’ Court of Victoria at Melbourne on 24 February 2022,[6] together with entries made in the Victoria Police LEAP database which recorded the results of the hearing of certain charges made against the applicant at the Sunshine Magistrates’ Court on 30 April 2024.[7]
[5] G6, 29-30.
[6] G7, 31-50.
[7] These entries in the Victoria Police "LEAP" database are found in the tendered bundle of Further Supplementary G Documents (‘FST’) FST1, 1-2.
The applicant’s first conviction was at the Mount Druitt Local Court 29 November 2010 when he was found who have committed the offence of assault occasioning actual bodily harm. He was placed on a bond for 2 years with supervision to be undertaken with the New South Wales Probation Service. On the same day he was also found to have committed the offence of destroy or damage property of less than $2,000. Also, with respect to that offence he was placed on a bond for two years with supervision to be undertaken with the New South Wales Probation Service.
In the North Sydney Local Court on 12 March 2013, he was convicted of driving a vehicle on the road (2nd offence) when he had never held a license. He was fined $500 with costs.
In the Campbelltown Local Court on 3 September 2014, he was convicted of driving whilst disqualified and fined the sum of $1000 and disqualified from holding a driver’s license for a period of two years.
In the Sunshine Magistrates’ Court on 15 December 2021, the applicant was found to have contravened a family violence interim intervention order and contravened a condition of bail (2 charges). Without conviction the charges were adjourned for nine months, and he was ordered to pay the sum of $300 into the Court Fund.
On 24 February 2022 in the Werribee Magistrates’ Court, the applicant was convicted of, common law assault, intentionally causing injury (2 charges), affray and robbery (2 charges). He was convicted and sentenced to an aggregate term of imprisonment of 12 months to be served concurrently.
In the Seymour Magistrates’ Court on 23 June 2022, he was convicted of committing an indictable offence whilst on bail and persistent contravention of family violence orders (3 charges). He was sentenced to an aggregate term of 4 months imprisonment to be served concurrently. Such concurrent term to be served with the sentences then presently being served by him.
Finally, in the Sunshine Magistrates’ Court on 30 April 2024, the applicant was convicted of unlawful assault (4 counts), reckless conduct endangering serious injury and intentionally destroying property. He was convicted and an aggregate sentence of six months imprisonment imposed upon him to be served concurrently. Further, a Community Corrections Order (’CCO’) for 15 months was imposed. Conditions of that CCO included that he undergo treatment and rehabilitation for drug abuse or dependency as directed together with assessment and treatment for alcohol abuse or dependency as directed, a mental health assessment and treatment as directed, and offending behaviour program as directed and any other treatment and rehabilitation that may be directed by the relevant community corrections Centre. The CCO was expressed to reduce the risk of reoffending including men’s behaviour change, and anger management programs.
When in the witness box the applicant had some difficulty recalling the precise details of his offending for which he was convicted in the Mount Druitt Local Court 29 November 2010. The contents of a document summoned from the New South Wales Police Force called a Facts Sheet and was put to him in cross-examination. He did not dispute any of its contents. He readily conceded that at the time of committing these offences he was drunk and under the influence of alcohol. The Facts Sheet recorded that the applicant and the victim had consumed between 5 and 6 schooners of beer each at a hotel. Presumably full-strength beer. On any view it is a significant amount of beer. The offences occurred earlier in the month of November 2010.[8]
[8] These offences will hereinafter be referred to as the "November 2010 offences".
The applicant and the victim of the November 2010 offences were in what the police described as an “de facto relationship” residing together.
The victim went outside of the hotel to smoke with her sister. This was not to the applicant’s liking, which prompted him to follow her, grab her by her top and pull her towards him. Her response was to push him away. He then picked up to Schooner glasses smashing them on a nearby table. Additionally, he threw an ashtray at the victim which landed on a table. He then picked up a chair and smashed it on another table. The applicant was then ejected from the premises whilst the victim remained inside for approximately half an hour. The applicant waited outside.
When the victim left the hotel premises approximately half an hour later, the applicant ran towards her. At the same time, he threw his mobile phone to the ground causing it to break. He then started punching the victim with a closed fist to her stomach area causing her to scream out for help. Hotel security officers intervened and moved the applicant from the victim. She then commenced walking to a nearby railway station. It appears that the applicant then either broke away from the security guards or was released by them prompting him to run after his victim again. She attempted to calm the applicant down and whilst doing so contacted a friend to arrange to be picked up. At this time the applicant punched the victim again to the left shoulder area causing her to experience pain in her chest and left arm regions. She also yelled for help causing bystanders to contact the police. They arrived shortly thereafter. They observed the applicant to be well affected by liquor which was demonstrated by the fact that he was unsteady on his feet, had slurred speech and bloodshot eyes.
The victim’s friend arrived and picked her and her sister up from the precinct of the hotel. It appears that they did not get very far before the applicant has started yelling at the victim’s sister. Further, he attempted to grab her hair prompting her to respond by grabbing hold of him. He then bit that victim on the left ring finger causing skin to come away and bleed. He also punched the victim with a closed fist to the right-hand causing her hand to swell and further experiencing a shooting sensation of pain upper right arm.
Not long after the assault on the victim’s sister everyone else inside the car had locked the doors for protection. This was not to the applicant’s liking. It prompted him to remove a branch from a nearby tree and return to the car. He then used the branch to strike the front passenger door of the car causing a dent and scratching. Once again, the police were called, and the applicant was arrested and conveyed to the Mount Druitt police station. An interview was not able to be conducted due to the applicant’s level of intoxication. In evidence before the Tribunal were a bundle comprising seven colour photographs of the applicant’s victim.[9] They reveal several cuts and abrasions and bruises. The injury to the victim’s finger from the biting incident is quite confronting indeed.
[9] These photographs are found in the tendered bundle of Supplementary G Documents (‘ST’) ST17, 32-37.
The transcript of proceedings in the Melbourne Magistrates’ Court 24 February 2022 contains reasonably detailed reasons from the sentencing Magistrate which provide reasonably comprehensive details of the relevant facts concerning the applicant’s offending for which convictions were entered on that date.
In the witness box the applicant very robustly denied that certain of the events described by the sentencing Magistrate occurred. Whilst it is well-established that this Tribunal cannot go behind the findings of the sentencing Court, nonetheless, the Tribunal cannot accept the applicant’s denials. The exact parts of the sentencing Magistrates’ findings that the applicant denied and his explanation for such denial will be canvassed later in these reasons.
The relevant offending occurred on 6 December 2020. For whatever reason the applicant entered the bedroom of his teenage stepson, S1. Adopting “colourful language” he told him to be quiet. He then punched him twice to the head. This caused him to stand whereupon the applicant tackled with him causing him to fall back onto the bed. The applicant then punched him a further two times to the head before his mother arrived on the scene shouting at the applicant (presumably imploring him to desist) and at the same time calling 000.
Later that evening at approximately 9.00 PM, S1 with his older brother S2, also a stepson of the applicant, was present at a local shopping centre. They saw the applicant who was also within the precincts of that shopping centre. S1 said to the applicant, “What was your problem earlier, why don’t you have a crack now?”
The applicant did not immediately react to the comment from S1. However, for reasons that were not explained either to the sentencing Magistrate, or this Tribunal whilst the applicant was in the witness box, he called a friend who arrived at the shopping centre and rendezvoused with him. On or around this time, which was not precisely clear and probably nothing turns on the point, S1 damaged the applicant’s motor vehicle at the shopping centre. After causing such damage to the applicant’s vehicle S1 and his brother commenced walking home. Soon after, they became aware of the applicant and his friend chasing them. This caused them to naturally run away.
Whilst being chased by the applicant and his friend, S1 and S2 understandably sought to obtain refuge from them at nearby residential premises. Unfortunately, the occupant of those premises wouldn’t answer. Therefore, they jumped into her backyard. The applicant and his friend then spoke to the occupant of the premises and told her that the two boys had damaged his car. She informed them that S1 and S2 had jumped her fence.
It didn’t take long for the applicant and his friend to locate them. His friend armed himself with a metal broom handle and used it to strike S1 on his shoulder causing it to bend on impact. On or around the same time the applicant armed himself with a wooden handle of a rake. The applicant’s friend then punched S1, in response S1 punched him. The applicant then punched S1 in the head and he responded by punching the applicant causing him to fall.
Whilst all this was going on the applicant’s friend struck S2 which caused him to fall to the ground. He then, whilst S2 was on the ground, punched and kicked him in the face. At that time the applicant choked S1 and punched him to the back of his head.
Once this further administration of punches had occurred, the applicant’s friend demanded S1’s phone and took his shoes from him. Further, he demanded that both boys remove their clothes. Whilst complying with the demands made of them by the applicant’s friend (clearly in his presence) S1’s phone and money fell from his pocket. The applicant collected all the items, including the boys’ clothing, and upon doing so both he and his friend departed the scene. The applicant then threw the clothing away. Largely naked, except that S2 was wearing his underwear, the boys endeavoured to walk home. S1 was also by then experiencing bleeding from his head. S1 also suffered a broken wrist, a gash above his eye requiring seven stitches, swelling, bruising and lacerations. S2’s injuries included a laceration to the back of his head, bruising and swelling.
The applicant was arrested by the police in possession of money and the phone. His friend directed police to where the boys’ clothing had been disposed of. Victim impact statements from both boys were referred to, largely verbatim, by the sentencing Magistrate. More will be said about those victim impact statements later. However, quite understandably the experience has had a significant and long-term effect on both of them causing the development of anxiety, depression, recurring nightmares, increased rates of heartbeat from time to time, freezing up and an overall decline in their health at a physical level. There have been significant mental health effects which have required both boys to undergo regular treatment from a psychologist.
As noted earlier, when in the witness box being cross examined, the applicant categorically denied the incident in the bedroom with S1 where he punched him several times, as described by the sentencing Magistrate. On his version of the events his offending was confined to the incidents described at the shopping centre following the damage to his car.
The Tribunal cannot accept the applicant’s denial of the events in the bedroom (as described above at [36] of these reasons) on 6 December 2020. At the hearing before the sentencing Magistrate the applicant was represented by competent counsel. There was no objection by the applicant’s counsel, either to the prosecutor before the police summary was read to the court, or the Magistrate herself when the summary was read out by the prosecutor.
When this was specifically put to the applicant by the Tribunal, he stated that his counsel advised him just to focus on what happened later in the evening not what occurred in the bedroom.
The Tribunal found this explanation unconvincing. It frequently happens in criminal courts that an accused, when represented by experienced counsel, will disagree with certain parts of a police summary. It is common as part of the process when a plea of guilty is entered that negotiations will take place between the accused’s legal representatives and the prosecutors to reach agreement on the contents of the summary. If there could not be agreement, which seems unlikely to this Tribunal in this case, it is more probable than not that competent counsel would at least inform the Magistrate that the applicant contested that aspect of the summary, even if it were in passing for the avoidance of any doubt. Sometimes, even where there is a guilty plea, there will be a hearing from witnesses to resolve the question, as it goes to the totality and gravity of the alleged offending.
The Tribunal also having had the opportunity to observe the applicant over several hours in the witness box reached the conclusion that the explanation was implausible and provided with an air of unreality. For the avoidance of any doubt, the applicant in cross examination conceded the detailed description given by the Magistrate in her reasons of the events that occurred at the shopping centre.
There was no documentary material that describing the applicant’s offending for which he was convicted in the Seymour Magistrates’ Court on 23 June 2022. The applicant in cross examination readily conceded the convictions being for the persistent contravention of a family violence order (3 charges) and committing an indictable offence whilst on bail. In response to further questioning, he stated that his acts leading to such conviction included writing to his daughter. This was in contravention of an existing intervention order. He stated he understood at the time the reasons why the intervention order was in place. He further stated he understood by that point the importance of complying with court orders.
The applicant was taken in cross examination to several entries in the Victoria Police LEAP database which contained details of his offending for which he was convicted in the Sunshine Magistrates’ Court most recently on 30 April 2024. When those entries were put to the applicant he agreed with their contents.
In one of the incidents described, the applicant was said to have strangled a former partner. The entry in the Victoria Police database stated that when his partner returned to their home an argument took place between her and him. During that argument he put his arm around her neck in a “chokehold” manoeuvre. While doing this he told his former partner that he had learnt the move from a killer in a Sydney jail. His partner described to the police that she remembered her arm starting to go limp she lost her vision and had passed out. When she woke up, she had soiled her pants.[10]
[10] FST1, 15.
The applicant in his evidence stated that when he strangled or choked his former partner he did so when he was drunk after watching the football. He was asked how much he had drunk at the time and thought it was probably between 15 to 20 beers. In response to a question from the Tribunal, he was asked what size beers they were and responded that they were a “stubby”. One has to observe that this is, on any analysis, a significant amount of beer to consume on one occasion.
Another incident which resulted in the applicant being convicted of the matters in the Sunshine Magistrates’ Court on 30 April 2024 also took place with a former partner. A dispute arose between them about whether they would attend an early-morning boxing session. The dispute escalated and resulted in the applicant pushing his former partner onto their bed and punching her in the side of the head. He then told her to shut up and go back to sleep and that she was not going with him. His former partner required medical attention following that assault.[11]
[11] Ibid, 12.
A further assault committed by the applicant on his former partner for which he was convicted at the Sunshine Magistrates’ Court on 30 April 2024 occurred when, yet another argument developed between them. It escalated with the applicant taking her phone and refusing to return it to her. He then gripped his former partner’s arms and applied so much pressure that it caused her pain and restricted movement. She received bruising because of it. After he had released his former partner from his grip, he smashed her phone on the floor.[12]
[12] Ibid,10.
Finally, another incident for which the applicant was convicted at the Sunshine Magistrates’ Court on 30 April 2024 was committed against his former partner when she was 39 weeks pregnant. It followed a visit she had made to the hospital that morning in the belief that the birth would be induced. Following an assessment at the hospital it was decided that the birth would not be induced, and she was sent home. Upon her arrival a dispute erupted. The genesis of the dispute arose with the applicant’s anger that the babe had not been born on that day as he expected. Yet again, the dispute escalated, culminating in the applicant pushing her into a doorframe. The police attended.[13]
[13] Ibid, 17.
It should be noted that with respect to the applicant’s most recent convictions in the Sunshine Magistrates’ Court on 30 April 2024, in cross examination he readily conceded that such convictions involved acts of family violence.
PARAGRAPH 8.1 OF DIRECTION 99 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1(1) of Direction 99 provides that when considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. It further states that in this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction 99 states that decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.1 of Direction 99 – The nature and seriousness of the applicant’s conduct
Paragraph 8.1.1(1) of Direction 99 identifies several factors that a decision-maker must have regard to when considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. The range of factors enumerated in that paragraph are not exclusive.
Paragraph 8.1.1(1)(a) of Direction 99 provides that without limiting the range of conduct that may be considered very serious, amongst other things, the types of crimes or conduct viewed very seriously by the Australian Government and the Australian community include:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed; and
(iii)acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed.
Additionally, para 8.1.1(1)(c) of Direction 99 provides in considering the nature and seriousness of the non-citizen’s criminal offending, decision-makers must have regard to the sentence imposed by the courts for a crime or crimes.
Paragraph 8.1.1(1)(d) of Direction 99 also states that the Tribunal must have regard to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
Finally, under para 8.1.1(1)(e) of Direction 99, the Tribunal is also required to have regard to the cumulative effect of repeated offending.
In applying this paragraph of Direction 99 it is apparent that the nature and seriousness of the applicant’s offending, details of which have been catalogued earlier in these reasons, must be classified as very serious. There are several reasons for reaching this conclusion.
There have been several and repeated acts of violence against both several women, who have been his domestic partners from time to time, and minors. Those minors were his stepchildren. In the context of his stepchildren, the applicant when in the witness box acknowledged that as stepsons, he had a responsibility to look after them and not harm them. Further, he conceded that his behaviour towards them on the day in question was not behaviour that would be expected of a responsible and mature adult. He conceded that such acts of violence committed against his stepsons were a completely inappropriate response to what they did, even if their conduct was aggravating or otherwise caused him harm.
Reference has also been made previously in these reasons to the substance of the stepsons’ victim impact statements which were referred to largely verbatim by the sentencing Magistrate in February 2022. The contents of those victim impact statements were not in any way challenged at the hearing before her. Those statements are compelling and confronting. They describe a significant breakdown in mental health and an almost irretrievable change in their personalities.
S2 described that after the incident his mental health has not been great. He described how the outgoing and happy person he had been prior to the incident had disappeared as a result of the incident. It was catalogued how he had fallen into depression and developed anxiety, the consequences of which are to cause him to develop traits including not wanting to go out, interact with anyone or even leave his room. He has required multiple sessions with a psychologist. There will be many more sessions in the future. His profound embarrassment at being forced to walk through the streets almost naked, apart from being dreadful, is also understandable.
Another aspect of the impact on S2 that he described in his statement, as recounted by the sentencing Magistrate, was the damage to his relationship with his mother which he is now endeavouring to rebuild. There were also accounts of recurring nightmares about the incident. One can additionally understand, his further explanation that as a result of the incident he has to regularly look over his shoulder for fear that the same thing might happen again. This reaction, he explained, is especially the case when he sees someone of a large build apparently of a Pacific Island background.
S1’s victim impact statement is similarly confronting and compelling. He explained that after the incident he lost his connection with his mother. Nightmares, sleeping difficulties, irregular heartbeat, bad anxiety and freezing up are conditions that he now also experiences following the incident. If anyone mentions the incident, he feels sick, and it triggers such manifestations as nightmares.
Similar, to his brother, has also regularly required treatment from a psychologist. He described a significant personality change and how he has become a very quiet person not talking as much as he used to. S1, also described the embarrassment and the effect of having his clothes stripped from him in the incident concerned. He stated he will not be the same person again. There are, as he describes it, hard days that he experiences. There is anxiety and other conditions that have been caused by the incident.
It remains to be seen whether the applicant’s stepsons will ever fully recover from the effects of their treatment at the applicant’s hands. However, no young person in their critical formative years should have to endure such experiences as these boys did. It was appalling behaviour on the part of the applicant which can only be classified or categorised as extremely serious indeed.
It is also of concern, in terms of assessing the nature and seriousness of the applicant’s offending, that they were crimes of a violent nature against women who were clearly vulnerable. There were certain aspects of his offending against those women which was demonstrably repugnant. As already noted in these reasons, the forensic photographs taken of the injuries to his victim of the November 2010 offences were extremely confronting. There have been numerous instances of the applicant punching women with considerable force and effect. He is clearly a physically imposing individual, and it is not surprising that in some instances these punches have caused his victims injury such that they required medical attention. There was the incident where he bit a victim’s finger causing a significant cut and consequential bleeding. The photograph of such injury was also confronting.
The incident where the applicant strangled or choked his victim to the point that she passed out cannot be understated. The fact that his victim passed out indicates that she was significantly injured, most likely due to the restriction of blood supply to her brain. Had he not restrained himself at the point he did, it is not beyond the realms of possibility that his victim may have suffered permanent injury, such as an acquired brain injury due to oxygen deprivation or even in extreme case, death.
The incident committed against a former partner who was 39 weeks pregnant, almost defies belief. The fact that a dispute erupted after she had returned from hospital having not given birth is appalling. Pushing a pregnant woman, let alone any woman, into a doorframe in the circumstances that he did, is reprehensible and must be wholeheartedly condemned.
The gravity of the applicant’s offending is also amplified by reason of the fact that the applicant clearly knew that what he was doing was wrong and indefensible.
In also assessing the nature and seriousness of the applicant’s offending the observations made by a Judge or Magistrate, where available to the Tribunal can be taken into account. There is in this case limited material available to the Tribunal. The transcript of proceedings in the Magistrates’ Court 24 February 2022 is available. That Magistrate described the applicant’s offending, that was before her on that day, as very serious and the violence involved in her view was terribly concerning. The Tribunal completely agrees with these conclusions.
On that note, another factor that it is appropriate to take into account in assessing the nature and seriousness of the applicant’s offending must be the fact that he has now been imprisoned on three separate occasions. As has been frequently observed in this Tribunal, imprisonment as a sentencing option is the last resort in the hierarchy of penalties that a court will impose. To deny a person their liberty and incarcerate them in the prison system is a step that judges and magistrates do not take lightly. Liberty of the subject has always been considered in common law systems of justice to be paramount. A person will not be imprisoned unless their offending is of a very serious nature indeed.
Applying paragraph 8.1.1(1)(a) of Direction 99, the applicant’s offending must be viewed as very serious. This is as noted because the crimes were violent, were of a violent nature against women, and because they were against his stepsons as is evident from both the several convictions against him and on his own admission when cross-examined in the witness box. There can be no other conclusion.
The Tribunal should also observe, that for the reasons previously articulated, that the applicant’s offending did involve crimes committed against vulnerable members of the community. These vulnerable members of the community included his domestic partners, one of whom was 39 weeks pregnant and his stepsons. They are clearly crimes committed that are captured by the language used in paragraph 8.1.1(1)(b)(ii) of Direction 99. Nothing more needs to be said about the application of this paragraph of the Direction.
In applying this primary consideration paragraph 8.1.1(1)(d) of Direction 99 obliges the Tribunal as decision-maker to have regard to the frequency of the noncitizen’s offending and, whether there is any trend of increasing seriousness.
In terms of frequency several things emerge with respect to the applicant’s offending which weigh heavily against him in such a way as to support a conclusion that the nature and seriousness of such offending can only be classified as very serious.
There is the long history of offending. His first conviction for an assault occasioning actual bodily harm was in the year 2010. There have been several convictions in between those years. His most recent conviction was on 30 April this year. It is of significant concern, as is apparent from his record, that the applicant simply has not learnt his lesson. There is a repeated history of acts of violence causing actual bodily harm to his victims. Additionally, there has been contravention, even to the point of persistent contravention, of family violence intervention orders. The applicant conceded in the witness box that he understood the obligation to obey the law, and in particular obey court orders. Notwithstanding this obvious comprehension of such obligations there has been a consistent pattern over many years of lawbreaking and wilful breaches of court orders.
It is also disturbing that the applicant appears not to have matured, as many men do, in such a way that they no longer offend, or remain a threat to the community in a general sense. At just on 40 years of age, the applicant appears not to have done so.
Overall, there has been a trend of increasing seriousness in the nature of the applicant’s violent offending. Clearly, its high point occurred in the events of 6 December 2020 where he committed the crimes against his stepsons. That trend of increasing seriousness is evidenced by the injuries caused which have been described earlier, longer term effects on his victims as described in their victim impact statements together with the significant term of imprisonment that was imposed.
As for the cumulative effect of the applicant’s repeated offending, which the Tribunal is obliged to have regard to when considering the nature and seriousness of his conduct under paragraph 8.1.1(1)(e) of Direction 99 several considerations emerge.
Firstly, as has already been recounted, concerning his crimes of violence there are the physical, psychological, and emotional impacts on his victims. Those details are referred to and repeated for the purposes of this paragraph of the Direction.
Secondly, although the evidence on the question is comparatively limited, it seems that at least in one case of his offending, and probably more, such offending has resulted in significant damage to the harmony of a family unit. This was alluded to by his stepsons in their victim impact statements with respect to the offences for which he was convicted of on 24 February 2022. In the view of the Tribunal, this impact cannot be underestimated.
Insofar as the applicant has committed acts of violence against several domestic partners, these acts also have had an impact on the family unit that had previously existed. The assault on a partner who was 39 weeks pregnant was disturbing and would clearly undermine the foundation of the victim’s family unit. This is especially so as the offending occurred just prior to the birth of her child. It is hard to imagine an event that would be more harmful to an expectant mother at a most important time of her life.
Finally, another impact of the applicant’s repeated offending must involve the demands that it will make in various ways, on a range of government agencies and departments. These agencies and departments probably have included ambulance and/or health care and hospital services, social welfare services not to mention police, courts and corrective services. On this note, the Tribunal’s attention was drawn to a recent decision of a judge of the Federal Court of Australia in Buntin v Minister for Immigration Citizenship and Multicultural Affairs.[14] The thrust of that decision is that in applying this paragraph of Direction 99 consideration of the impact on police courts and corrective services is an irrelevant consideration. This Tribunal considers that as such offending does impact those services provided by the government, it is concerned and has difficulty accepting that it is therefore irrelevant. These resources were diverted or applied as a result of the applicant’s offending.
[14] [2023] FCA 1055.
Taking into account all these matters, particularly the several acts of violence committed by the applicant against women and his continuing breach of family violence intervention orders, the Tribunal concludes that with respect to this primary consideration contained in paragraph 8.1.1 of Direction 99 that the applicant’s offending is very serious indeed, and therefore, very heavy weight must attach against revocation of the mandatory cancellation of the visa.
Paragraph 8.1.2 of Direction 99 – The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction 99 relevantly provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Throughout these reasons to date the applicant’s history of offending has been articulated. A feature of that offending has been that he has committed acts of violence on several occasions primarily directed towards women who have been his domestic partners and on one occasion his stepsons, who the Tribunal considers, were in a position of some vulnerability towards him. Informed by the language used in paragraph 8.1.2(1) of Direction 99 with respect to the applicant the Australian community’s tolerance for any risk of future harm that may be caused by subsequent offending, becomes lower as the seriousness of the potential harm increases. The applicant has committed some appalling acts of violence against women. In particular, the assault that he committed on a partner who was 39 weeks pregnant simply defies belief. The applicant’s propensity over many years to commit acts of violence towards women does not give the Tribunal confidence that if he is released into the community he will not reoffend again.
Were the applicant to reoffend, it is likely such offending will be against family members or women with whom he is in a domestic relationship. As required by paragraph 8.1.2(2)(a) of Direction 99, the nature of the harm to those individuals should the applicant engage in further criminal or other serious conduct is likely to be significant physical and psychological injury to his victims. There is also the applicant’s propensity to disobey family violence intervention orders. These are orders of the court which the applicant acknowledges he was obliged to adhere to. He failed to do so. His repeated disobedience to such court orders can have a significant effect on family members for whose protection such orders are made. These orders are largely made to protect women and children. If they are aware that the applicant is persistently breaching such orders, its impact upon them is such that they live in a climate of fear. Much as described by one of his stepsons in an impact statement of having to look over their shoulder all the time given what such fear has instilled in them. It has a profound effect on their quality of life.
In undertaking the assessment of risk that paragraph 8.1.2(2) of Direction 99 requires of the Tribunal as the decision-maker there are several factors to be taken into account. They are whether there is information and evidence on the risk of the applicant reoffending, and of course, evidence of rehabilitation achieved by the time of the decision.
A real concern with respect to the risks of the applicant reoffending concerns his abuse or misuse of alcohol. Frequently, but not always, his offending has occurred when he has been profoundly affected by alcohol. It is evident that the applicant has a significant problem with alcohol. He did to some degree recognise this problem when he was giving evidence to the Tribunal from the witness box.[15]
[15] See also, G11,74, [32] whereby the applicant acknowledges that at times he had drank too much alcohol which he now regrets.
The Tribunal considers that if the applicant is unable to come to terms with his problems concerning alcohol there is a high probability that he will reoffend. Such offending, more probably than not, will be against women who are his domestic partners.
There was some evidence before the Tribunal concerning courses and programs that had been undertaken by the applicant. After he was imprisoned in February 2022 when an inmate of Marngoneet Correctional Centre he undertook a five-week course called “Mapping a Way Forward”. This course addressed issues such as anger management and taking responsibility for the consequences of one’s actions. Another topic, which clearly was of benefit to the applicant, canvassed in that course addressed the negative impact of drug and alcohol use.
He has also been registered with the Men’s Referral Service. This is a service that is designed to provide support for men who have resorted to acts of family violence. It aims to give its participants access to counsellors to support men to change their previous propensity for violent behaviour against women and/or children.[16] There was also evidence that the applicant had attended five counselling sessions with that service between 16 February 2024 and 17 April 2024.
[16] G18, 92-94.
To his credit, whilst in immigration detention the applicant has availed himself of one-on-one sessions with a range of healthcare professionals. These sessions have included contact with a drug and alcohol counsellor for the purposes of, amongst other things, endeavouring to address the question of his alcohol abuse. In cross examination, the applicant was taken to one clinical record prepared by a drug and alcohol nurse at the immigration detention facility when a drug and alcohol consultation was undertaken by him. That clinical record recorded the applicant as informing the drug and alcohol nurse that his primary concern was alcohol use.[17] Additionally, he has during his time in immigration detention frequently attended group sessions conducted by a counsellor at such facility which have addressed, drug alcohol and mental health issues. It does seem from an examination of some of those clinical notes that these sessions have clearly been a benefit to the applicant. The Tribunal does take this fact into account.
[17] FST3, 161. See also other clinical notes of consultations with healthcare professionals that touch on drug and alcohol issues are found at pages 144, 147, 148, 150, 154, 165, 170, 171, 172, 173, 176, 179, 180, 181, 182, 184, 185, 186, 190, 194, 213 and 220 of the FST. Several of these clinical notes record the applicant's attendance at group sessions. Such group sessions covered a range of issues including drug and alcohol together with mental health questions.
Another consideration or factor relied upon by the applicant in support of his contention that the risk of him reoffending is comparatively low emerges from his faith. He was raised in the Church of Latter-Day Saints in Tonga and has continued to adhere to that faith during his time in Australia. He gave evidence from the witness box, and in his witness statement, of February 2024, that as a young man he worked for some time undertaking missionary work for approximately two years in Tonga with that church. He stated that he has maintained strong ties with that church, and it is his intention if released into the community to return to it and seek support and help from it, including its leaders, to undertake a fundamental change in his way of life with the intention of cutting out totally all alcohol and drugs. The Tribunal notes these contentions.
In support of his contentions that he intends to abstain totally from alcohol and drugs, he points to the fact that whilst in prison and immigration detention, he has not returned a positive test for them. That is to his credit. It is quite well-known that if an inmate of either a prison, or immigration detention facility, wishes to obtain access to alcohol and/or drugs, more often than not, they are able to do so.
On that note, it should also be observed that, as far as the Tribunal is able to determine, the applicant’s behaviour both in prison and immigration detention has been extremely satisfactory. It does go some considerable way to demonstrate that he has serious intentions to change his ways.
Whilst in prison, although no details were provided by way of documentary corroboration, the applicant in his oral evidence to the Tribunal stated that he had satisfactorily completed three vocational courses with Bendigo TAFE. Those vocational courses were designed to improve his employment prospects upon his release from prison and into the community. The courses were firstly, in traffic management or traffic control, secondly, the operation of a bobcat and thirdly, the operation of elevated work platforms (such as scissor lifts and the like). These are positive steps in terms of the applicant’s capacity to procure steady future employment.
Whilst the Tribunal acknowledges more recent steps that the applicant has undertaken by way of rehabilitation which have been recounted earlier in these reasons it nonetheless harbours significant concerns about the risks of the applicant reoffending. There are several reasons for reaching this conclusion.
There is comparatively little evidence before the Tribunal concerning the steps undertaken by the applicant towards his rehabilitation and/or the likelihood of him reoffending. For instance, there was no written report or oral evidence from any counsellor or healthcare professional who may have seen the applicant professionally expressing an opinion on the risks of him reoffending. Similarly, there is no expert evidence that touches on whether or not he has gained an insight into his offending particularly in the context of alcohol abuse.
The sentencing Magistrate on 24 February 2022 stated that his prospects of rehabilitation was somewhat unknown and that there was very little before her to base any assessment upon. She reached the conclusion that given his prior history such prospects of rehabilitation were relatively limited. These views are also considered by this Tribunal to be applicable.
Another reason why the Tribunal has significant concerns about the risk of the applicant reoffending is due to the fact that previous court orders, including family violence intervention orders or a bond to be of good behaviour have not deterred him from reoffending. There has been a significant disobedience to court orders by way of, amongst other things, terrible acts of violence against women.
There is also the fact that if the applicant does not remain totally abstinent from alcohol there is a risk, which is distinct and real, particularly if he engages in acts of binge drinking, that his capacity for sound judgement, problem-solving and rational behaviour will be significantly impaired. When this occurs, there is a real prospect of him reoffending. Once again, informed by the language used in paragraph 8.1.2(1) of Direction 99 such contract and the harm that would be caused if it were to be repeated is so serious that any risk of such repetition given the applicant’s history, is surely unacceptable.
Therefore, the Tribunal concludes that very heavy weight must be attached to this primary consideration against revocation of the mandatory cancellation of the visa.
Primary consideration 8.2 of Direction 99 – Family violence committed by the non-citizen.
Paragraph 8.2(1) of Direction 99 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia. It further specifies that the Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Reference should also be made to, amongst others, para 8.2(3) of Direction 99, which provides that in considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
(a)The frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at the 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 witnesses of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct.
The applicant, as already noted, has been convicted of a significant number of acts of family violence. Details of those convictions have been outlined above. It is appropriate to record that the term “family violence” is defined in detail in Paragraph 4 of Direction 99. The language used in that definition casts a very broad dragnet which captures a variety of fact situations and categorises them as family violence. It means 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. Examples include, amongst other things, an assault, repeated derogatory taunts and intentionally damaging or destroying property.
As required by paragraph 8.2(3) of Direction 99 there has been a significant frequency of family violence offences, the first of which occurred in November 2010 and the most recent conviction was on 30 April of this year. It demonstrates not only a propensity on the part of the applicant to commit acts of family violence but also a frequency of such acts over many years.
There has been a trend overall of increasing seriousness of the applicant’s family violence offending. That seriousness has culminated in terms of imprisonment being imposed on no less than three occasions. No act of family violence can be condoned. However, some of the acts of family violence engaged in by the applicant have been extraordinarily confronting and repugnant. The assault on his partner who was 39 weeks pregnant and the extraordinary assaults on his stepsons, details of which have been previously recounted, were dreadful acts. With respect to the assaults on his stepsons, it should be repeated that the sentencing Magistrate concluded that the offending was very serious and the violence involved in her view was terribly concerning. The applicant clearly knew that what he did on those several occasions was demonstrably in breach of the law and completely and utterly wrong. The appalling lack of judgement and restraint on his part is extremely difficult to comprehend.
The cumulative effect of the applicant’s repeated acts of family violence have also been addressed earlier in these reasons. They are referred to and repeated. Particular emphasis must be placed upon the considerable physical, psychological and emotional impacts and damage that have been caused to his victims. The victim impact statements from his stepsons that were recorded in the transcript of proceedings before the Magistrates’ Court in February 2022 show that these young men’s lives have been significantly altered. It is not at all certain whether they will ever completely recover from the emotional scarring to their personalities that the applicant has inflicted upon them. Also, the dreadful impact on what had previously been a harmonious family relationship cannot be understated.
On the question of rehabilitation, the steps undertaken by the applicant in pursuit of this objective have been addressed in the analysis of the previous primary consideration contained in Paragraph 8.1.2 of Direction 99. That account is referred to and repeated also.
On the question of the extent to which the applicant accepts responsibility for his family violence related conduct, which the Tribunal is required to consider under paragraph 8.2(3)(c)(i) of Direction 99 several matters emerge from the evidence. The applicant contends that he has at all times accepted responsibility for such offending.
Firstly, the evidence before the Tribunal, both in his witness statement of 13 February 2024 and from the witness box when he gave oral evidence, was that at all times he pleaded guilty to those acts of family violence for which convictions were entered.[18] The Tribunal acknowledges this fact and clearly the utility of such pleas. In addition to the admission of guilt that such a plea entails, it also spares the victims of the applicant’s offending from having to relive their trauma when giving evidence at a contested hearing. It is well accepted that a victim of domestic violence having to relive those events in the witness box and be subject to at times robust and confronting cross examination can find that it amplifies for them what has already been a traumatic experience. It is merciful that the applicant’s victims were spared that experience.
[18] See also G7, 31-50, the transcript of proceedings of the hearing at the Magistrates’ Court of Victoria on 24 February 2022 where it is recorded that there was a plea of guilty entered on the applicant's behalf.
The applicant when in the witness box being cross examined generally expressed remorse for his offending. He also in various ways imported to contend that he had gained an insight into his offending. In particular, with respect to the acts of family violence, he placed some emphasis on the fact that several of the convictions were for offences that occurred when he was substantially under the influence of alcohol. Therefore, he recognised the need to address his misuse of alcohol as has already been canvassed in these reasons.
Reference should be made also to a letter of support written by his older brother, Lofia, dated 4 February 2024 which was in evidence before the Tribunal.[19] In the context of the extent to which the applicant accepts responsibility for his family violence conduct and understands its impact that letter provides some support. It is unfortunate that his brother did not attend and give oral evidence of the hearing of the application.
[19] G14, 82-83.
However, his brother in the letter explained that over several recent months when speaking to the applicant he observed that he is not the angry and rebellious person that he was previously. He noted that the applicant had expressed remorse for some of his actions that have resulted in his convictions. Additionally, he recorded observing a distinct change in the applicant’s attitude which he perceives gives him confidence that with the appropriate assistance he can be transformed into a peaceful and well-meaning member of the community.
Further, in the letter his brother offered to provide the applicant with a stable and secure home environment enabling him to reconnect with his children. He also offered to get the applicant involved in church activities and mentor him appropriately. Finally, he would do what he could to enable the applicant to reconnect with his children who reside in Sydney in a safe and secure environment.
The Tribunal has no doubt that the applicant’s brother Lofia is motivated by the best of intentions and will do what he can to provide assistance to the applicant in terms of accommodation, family support and guidance to lead a better life. It accepts that the applicant has expressed his remorse to Lofia concerning his offending. The applicant has clearly had much time to reflect on the nature and gravity of what he has done. However, whether or not these endeavours, expressed by Lofia in his letter, are to bear fruit will very much depend upon a radical change in life direction on the part of the applicant.
Whilst the Tribunal acknowledges the expressions of remorse contained both in his witness statement and from the witness box, it considers that some aspects of these expressions of remorse, and perhaps insight into his offending, are not completely as they seem. The applicant when in the witness box appeared to the Tribunal, as many applicants in the position of him do, to adopt an approach whereby he expressed remorse but did so with a certain air of to some extent, going through the motions. This was, more probably than not, motivated by the realisation that dawned upon the applicant of the predicament that he now faces with respect to his immigration status.
Another reason why the Tribunal views the applicant’s expressions of responsibility for his actions and expressions of remorse with some level of scepticism, is due to the denial of the allegations concerning the first part of the assault on his stepsons at the house before the incident that took place later near the shopping centre, contained in the transcript of proceedings at the Magistrates’ Court on 24 February 2022. Details of this had been recounted above. The Tribunal has not accepted this explanation, or his denial that such events occurred. It concludes that it was in the circumstances, a false denial. Given this finding, the Tribunal is concerned about whether the applicant has both truly accepted responsibility for all of his acts of family violence and or properly understands the impact of his behaviour on the victims of his offending.
In this setting whilst the Tribunal accepts, as has been noted above, that the applicant has undertaken several courses and participated in counselling sessions both in prison and in immigration detention, it seems that greater efforts need to be undertaken by him to address the factors that contributed to his offending and committing acts of family violence. It has been mentioned, on several occasions, previously in these reasons that the applicant’s problems with alcohol are of significant concern. More likely than not, unless he comes to terms with those problems and remains totally abstinent there must be a distinctive real risk of future offending.
There is also, as the applicant did touch on both in his witness statement and to some limited extent whilst giving oral evidence, the question of his issues with anger management. The evidence before the Tribunal with respect to several of his offences from the reasons for sentence of the Magistrate on 24 February 2022, the contents of New South Wales Police Force Facts Sheet, and the several entries in the Victoria Police LEAP database demonstrate a significant anger management problem on the applicant’s part. To use a colloquialism, the applicant seems to have “a very short fuse” around family members. Unless the significant anger management problems that the applicant faces are addressed in the future it seems a distinctive real possibility that the applicant will reoffend. These raise serious concerns as contemplated by the language adopted overall in Paragraph 8.2 of Direction 99.
The Tribunal in assessing what weight to ascribe to this primary consideration observes that there has been a long history of family violence committed by the applicant which has exhibited a trend of increasing seriousness. That trend of increasing seriousness was reflected in no less than 3 separate terms of imprisonment imposed upon him. Whilst the applicant has expressed remorse for his offending and contends that he has gained an insight into it, which is acknowledged by the Tribunal, there are grounds for some level of scepticism concerning those expressions. There has been a significant impact on several domestic partners caused by the applicant’s repeated acts of family violence. The impact of his violent offending on his stepsons is of real concern. As for rehabilitation, whilst some commendable steps have been taken in pursuit of this objective by him there remain serious questions about his relationship with alcohol and his capacity for anger management. In light of all these matters the Tribunal concludes that extremely heavy weight must be placed upon this primary consideration against revocation of the mandatory cancellation of the visa.
Primary consideration 8.3 of Direction 99 – The strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction 99 states as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i)considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The applicant has lived in Australia for just on 15 years after arriving from Tonga. This obviously is the larger part of his adult life. He has several family members residing in Australia who are either Australian citizens, Australian permanent residents or those with a right to remain here indefinitely.
As for immediate family members residing in Australia there are several. He has two brothers residing in Sydney, the elder brother being Lofia, an Australian citizen and a younger brother Siosifa who is an Australian permanent resident.
Lofia has three children, who the applicant stated in his oral evidence are all adults aged approximately 30, 28 and 26 who it appears are in Australia. One of these children is married with three children aged approximately 5, 4 and 3. He and his children apparently reside with Lofia.
Siosifa has 4 children from a previous marriage who are also apparently in Australia. There was no evidence indicating their ages. Siosifa has since remarried.
There is also a brother Viliami who resides in New Zealand another brother Kelepi apparently resides in Hawaii.
There was very limited evidence concerning the strength of the applicant’s ties with his brothers. Initially upon his arrival in Australia and until approximately 2015, the applicant resided in Sydney. For some years after his arrival in Sydney, the applicant lived with his then wife until they separated on a date that was not identified. Following that separation, he went to live with his brother Lofia in Manly, Sydney. It appears that arrangement continued until early 2015 when he moved to Canberra and secured employment as a concreter.
The applicant stated that his relationship with his older brother Lofia is one where he looked up to and respected more so as a father figure. It is evident that over the applicant’s time in Australia, no matter where he might be, he has had reasonably frequent contact with Lofia. The Tribunal infers that the applicant’s relationship with Lofia, notwithstanding more recent periods of incarceration and immigration detention, remains reasonably strong. His contact with Siosifa, it appears has been considerably less frequent, not that there is any particular rift or animosity between them. His evidence was that he maintains contact with all his brothers, and his mother and brother who are in New Zealand. That contact is maintained by some form of messaging service and weekly video calls.
On the limited evidence available to it, the Tribunal infers that when the applicant was living with his older brother Lofia in Manly that in addition to having a comparatively close relationship, he also fairly regularly engaged in a variety of activities that centred around his brother’s family, the broader Tongan community in Sydney and the Church of Latter-Day Saints of which they are members.
Paragraph 8.3(2) of Direction 99 prescribes that in considering the applicant’s ties to Australia, the Tribunal as decision-maker should give more weight to the applicant’s ties to his children who are Australian citizens and/or Australian permanent residents. There are four children who fall into this category.
There was limited evidence before the Tribunal concerning the ties and relationship between the applicant and his children.
The first child aged 16 is in fact biologically the applicant’s niece. She is a biological daughter of the applicant’s older brother, Kelepi who the applicant has adopted. The reason for this was that Kelepi had a large family comprising 10 other children. The applicant said his brother and wife were simply struggling to support such a large number of children. Evidently, there was a family agreement that the applicant and his then partner would adopt this child which is what occurred. Subsequently, the applicant and his first wife separated.
She apparently resides with her older brother Lofia and his family in Sydney and has done so for some time, it would appear following the separation of the applicant and his first wife. Presently she is at secondary school, apparently progressing well and also actively involved in the church. The applicant gave evidence that prior to his incarceration or immigration detention, notwithstanding that he did not live in Sydney, he visited her often. The last time that he saw her was on a date that he was unable to specify in the years 2022 to 2023 when he was released. Continuing contact, he stated, with her has been maintained by telephone. The applicant said that when he was working, he provided money for her support.
The applicant’s son aged 13, his first biological child, resides with his mother in Blacktown New South Wales. In evidence before the Tribunal, was a letter from her supporting the applicant.[20] In that letter she confirms that she has stayed in constant contact with the applicant and that he has provided support for their son. She expressed support for the applicant notwithstanding, as she describes them, his “many faults”. The level of the support or contact that the applicant has had with this child is not specifically identified.
[20] G15, 84.
The applicant says that he has supported his son financially. When he was living in Sydney, he had contact with him once per week. As for financial support for him, the applicant’s evidence was that on one occasion there was a Child Support assessment and subsequently an informal agreement. It would appear that since the applicant has been in both prison and immigration detention, he has not provided any financial support for his son.
The applicant last saw his son in December 2022 when he was released from immigration detention. Since that time, contact has been maintained by video calls usually made on one occasion during the week and the weekend, mostly on both days. It appears from both the applicant’s evidence and the brief letter of support from the child’s mother, that notwithstanding the relatively limited face-to-face contact that the applicant has had with him in recent times, they have done their best by means of the use of video connections. The Tribunal accepts that there is a reasonably well-developed relationship between them of some strength. The applicant appears particularly to be proud of his son.
There was comparatively little material before the Tribunal concerning his other son aged 12. He was born of a very brief relationship that the applicant had with his mother. The Applicant’s younger son has always resided with his mother. When he was quite young, he would spend weekends with the applicant’s brother Lofia in Sydney and the applicant would visit him there. There are no parenting orders in place concerning this child. It appears that there has been little recent contact between him and the applicant. There was no evidence of the applicant providing any financial support for his younger son. Clearly, the Applicant’s younger son has had no contact with him since his imprisonment and time in immigration detention.
The applicant’s youngest child aged 6 was born of a relationship that commenced between the applicant and the child’s mother in 2015 when he moved to Canberra. The applicant and his daughter’s mother subsequently moved to Melbourne and were eventually joined by her children, including the stepsons who the applicant was convicted of assaulting in the Magistrates’ Court in February 2022.
After the offences committed by the applicant on his stepsons his relationship with his daughter’s mother ceased, which it will be recalled was in December 2020. The applicant stated that since that time he has only had contact with his daughter once. This is understandable. It should be noted that there was a family violence intervention order imposed by the sentencing Magistrate on 22 February 2022 which prohibited the applicant from having contact or communication with his former partner and her children, including this child.[21] Such order was imposed for a term of 2 years. However, it is the applicant’s intention, if he is able to do so, when appropriate, to resume contact with her and build a father-daughter relationship. He also intends to, if able to do so, support her financially to the best of his ability.
[21] G7, 48-49. It is fair to say that the order is extremely broad in terms of its scope and effect. It prohibits all contact with the affected family members by any means and also prohibits him from approaching all remaining within a specified distance of them. The terms certainly prohibit him from having any contact with his youngest daughter.
The ability for the Tribunal in these circumstances to assess the extent to which the applicant is likely to play a positive parental role in her life in the future is, in the circumstances, almost impossible. There is clearly a long time before she turns 18. Save for the family violence intervention orders there are no other court orders that the Tribunal is aware of relating to her. Before the applicant would be able to play any positive parental role in her life there will need to be a variation of the family violence intervention orders to permit him to resume contact, a resumption of that contact and development of an appropriate father daughter connection. For this to be achieved apart from dealing with existing orders, it seems given the unfortunate history of the applicant’s relationship with his former partner and stepsons which led to his conviction, that if a meaningful relationship is to be established between the applicant and his youngest child there would need to be some level of cooperation and goodwill forthcoming from her mother. The Tribunal simply does not know whether this will occur.
Until these uncertainties concerning the applicant’s ability to contact and resume a relationship with her are resolved, it is simply impossible for the Tribunal to establish the extent to which he would be likely to play a positive parental role in her life in future years. It acknowledges the limited evidence of the applicant that he would very much like to do so. This is understandable coming from any parent.
The impact of the applicant’s prior conduct namely his family violence offending on his daughter can only be described as profound for all reasons that have been detailed in many parts above. It has caused his relationship with her to cease and had a very significant effect on her brothers that the applicant assaulted. No doubt as the years pass and she is informed of the history of the matter it will affect her and any potential future relationship that might be established between her and the applicant.
The likely effect of any separation of the applicant’s youngest daughter from him at this time, is likely to be limited if not negligible due to the relatively long period where there has been no contact between them. Where he to be returned to Tonga it will depend on variations of existing orders, and as previously stated to some significant extent the cooperation and goodwill of her mother. If that is forthcoming presumably, contract by means of an appropriate Internet application could be established.
Obviously, her mother already fulfils the parental role for her and has done so for quite some years in the absence of the applicant. Nothing further need be said about this aspect of this primary consideration.
Finally given her age no known views of hers are forthcoming.
Paragraph 8.4 (4) (g) of Direction 99 requires the Tribunal as decision-maker to consider where relevant any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the applicant. Brief mention should be made of this requirement because to some extent the applicant’s actions when he assaulted his stepsons, who are brothers of his younger daughter, must have to some extent affected her. This is for several reasons.
Firstly, the family unit that had existed prior to those assaults in the month of December 2020 was irretrievably broken by reason of them. Whilst it involves some level of speculation the significant effects of those assaults on the applicant’s stepsons, who were living under the same roof as his daughter in the family unit may well have caused difficulty for her. The fact that the applicant has been in custody and not providing financial support is a direct manifestation. Further, having brothers who are clearly suffering some level of psychological injury or affliction from those events could whilst they continue to reside under the same roof as her pose some level of undefined difficulty. Further, it is possible at the moment she simply has no idea who her father is.
The Tribunal considers that notwithstanding the significant punctuation in the applicant’s relationship with all of his children, and the limited material before it concerning the relationships, he has with some of them, it accepts that overall, he has done his best to maintain what relationships he can with his children in difficult circumstances. It also accepts that some of the relationships with his children have been made more difficult simply by reason of the fact that they live in a different state to him. It is difficult given these unusual factors to ascribe appropriate weight to this primary consideration. However, the Tribunal is minded to, when undertaking this task return to where it started that as a general rule minor children should have both parents playing a role in their life. Therefore, it concludes that significant weight should be applied to this primary consideration in support of revocation of the mandatory cancellation of the visa.
Primary consideration 8.5 of Direction 99 – Expectations of the Australian Community
Paragraph 8.5 of Direction 99, “Expectations of the Australian Community”, provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(b) causing a person to enter into, or being a party to (other than being a victim of), a forced marriage;
(b) 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;
(c) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(d) 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
(e) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
In applying this primary consideration, it is instructive to refer to several passages from the decision in FYBR v Minister for Home Affairs which is frequently referred to in cases before this Tribunal and the courts.[22] Several passages from that decision explain that, as is apparent from an examination of a paragraph of an earlier Ministerial Direction expressed in similar language as this paragraph of Direction 99, to the extent it contains a statement of the expectations of the Australian community, the clause is “deeming”.[23] As Charlesworth J also explained, the clause imputes or ascribes to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[24] These expectations are established and are to be applied as norms.
[22] (2019) 272 FCR 454.
[23] Ibid.
[24] Ibid, [67].
As Mortimer J (as she then was) in YNQY v Minister for Immigration and Border Protection[25] observed, in substance, this consideration is adverse to any applicant where they have failed the character test and have been convicted of serious crimes.
[25] [2017] FCA 1466, 27-8 [76].
The expectations of the Australian community should be determined by reference to the provisions of Direction 99 itself, not by an independent assessment conducted by the Tribunal. The weight to be applied in undertaking the balancing exercise prescribed by Direction 99 is ultimately a matter for determination by the decision-maker, in this case the Tribunal, taking into account all relevant individual factors including countervailing factors from the person’s specific circumstances.[26]
[26] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, 19 [97].
The Tribunal considers that the applicant’s history of offending which has been outlined throughout these reasons is demonstrably serious conduct that breaches this expectation as identified in paragraph 8.5 (1) of Direction 99 and in such a setting the Australian community would expect the Government not to allow the applicant to remain in Australia.
Further, to adopt the language contained in paragraph 8.5 (2) of Direction 99, in addition non-revocation of the mandatory cancellation of the visa is appropriate simply because of the nature of the offences committed by the applicant such that the Australian community would expect that the applicant should not continue to hold a visa.
The expectations identified in both paragraphs 8.5 (1) and (2) of Direction 99 are in the view of the Tribunal triggered by reason of the applicant’s violent offending which has been repeated for more than 10 years, commencing relatively soon after his arrival in Australia and involved sustained acts of family violence and repeated breaches of court-imposed orders.
The applicant has committed conduct in a criminal sense of several kinds identified in paragraph 8.5 (2) (a) acts of family violence and (c) commission of serious crimes against women, children or other vulnerable members of the community, of Direction 99.
Not only were there repeated acts of family violence which were confronting and repugnant having occurred over a lengthy number of years, they were acts of family violence that culminated in three separate prison sentences. As noted earlier given these prison sentences it is a reflection of a community attitude that family violence will not be tolerated. Australian society has for many years long and loudly made it abundantly clear that acts of family violence are completely and utterly intolerable.[27] The immigration consequences for the perpetrators of family violence will be appropriately applied.
[27] DTR21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1237, [70].
For the sake of completeness, as is evident from the material previously addressed, the applicant has also committed serious crimes against women as contemplated by sub-paragraph 8.5 (2) (c) of Direction 99.
As guided by the language of paragraph 5.2 (3) “Principles” of Direction 99 the Australian community expects that the Australian government can and should cancel a person’s visa if they have engaged in contract in Australia 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.
Given the lengthy and serious nature of the applicant’s offending the Tribunal has concluded that serious character concerns within the meaning of paragraph 5.2 (3) of Direction 99 have been triggered. Accordingly, applying the mandate prescribed by that paragraph of the Direction this expectation of the Australian community applies regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community. Notwithstanding this expectation the Tribunal has expressed its reservations previously about whether or not the applicant may reoffend. Those reservations are repeated for the purposes of addressing this primary consideration.
In attaching weight to this primary consideration, the Tribunal is mindful of the serious acts of family violence committed by the applicant on several occasions often against persons who were vulnerable when compared to him and when he knew better. It was completely and utterly unacceptable conduct that resulted over many years on many occasions and culminated in three separate prison sentences. Therefore, there can be no other conclusion than that extremely heavy weight must be placed on this primary consideration against revocation of the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
Paragraph 9(1) of Direction 99 provides as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a) legal consequences of the decision;
(b) extent of impediments if removed;
(c) impact on victims;
(d) impact on Australian business interests.
Paragraph 9.1 of Direction 99 – Legal consequences of the decision
Paragraph 9.1 of Direction 99, “Legal consequences of decision under section 501 or 501CA”, provides as follows:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of “protection obligations”, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
There were no submissions or representations to the Tribunal concerning this other consideration with respect to the legal consequences of the decision. Further, there was no evidence before the Tribunal which established that any international non-refoulement obligation arises in his favour. Therefore, no weight will be attached to this other consideration.
Paragraph 9.2 of Direction 99 – Extent of impediments if removed
Paragraph 9.2(1) of Direction 99 provides:
Decision-makers must consider 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 substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The applicant between the hearing of this application and the finalisation of these reasons turned 40. There was limited evidence before the Tribunal concerning the applicant’s present state of health. It was not touched on in his witness statements. However, there were clinical records any evidence from the International Health and Medical Services from the applicant’s time in immigration detention. Those clinical records have been examined by the Tribunal and do not reveal any significant health issues. By way of example the applicant was consulted by a general practitioner in December 2023 which generally described him as being in good health apart from an issue concerning sleep apnoea. The general practitioner has recorded that the applicant is of heavy muscular build and attends the gym on a daily basis undertaking both weights and cardio exercises and does not experience any issues. It would appear he is a comparatively fit individual.
Although the applicant has not lived in Tonga for 15 years he is clearly fluent in the language and otherwise no substantial cultural barriers were identified either whilst the applicant was in the witness box or in the documentary materials that were in evidence. Having lived in Tonga until approximately 25 years of age it seems more probable than not that if he is returned to Tonga, he should be able to reintegrate into that society.
It is acknowledged that the applicant gave evidence that all his relatives have left Tonga or as in the case of his grandparents, have passed on. To this extent he has no contacts presently residing in Tonga to assist him upon return. The applicant in his statement of 13 February 2024 contends that if he is returned to Tonga his situation would be worse than other Tongans. Principally, this is because as already observed, that he will have no family support to rely upon unlike most Tongans living there. He also highlights the harsh economic situation in Tonga and the realities being that he is unlikely to be able to obtain gainful employment. He reiterated that the Tongan community in Australia frequently raises money to remit to Tonga to assist struggling families dealing with a harsh economic situation. It is said by him that the harsh economic situation faced by Tongan citizens is also amplified by the fact that there is limited government social welfare support for unemployed citizens, or those who otherwise have unique or special needs.
The applicant also contended in his witness statement and submissions lodged on his behalf by Refugee Legal that there is a significant concern for the state of his mental health if he is returned to Tonga. He is concerned that being returned to Tonga and attempting to adjust and reintegrate into its society could lead to a mental breakdown.
The Tribunal acknowledges these challenges that have been identified by the applicant. There is no doubt he will face significant hurdles if he is returned to Tonga. It is quite correct to say he has been absent from Tonga for many years and has no family there. This will pose an obvious impediment to him re-establishing himself and maintaining a basic living standard in the context of what is generally available to other citizens of the country. However, it seems more probable than not that with respect to social, medical and/or economic support available to citizens in Tonga he will have the same rights as other citizens to access them. The Tribunal acknowledges that social services and health care in Tonga is not of the same standard as that found in Australia.
He is a comparatively fit man just on 40 years of age. As for employment prospects, clearly it is difficult to determine how readily he will be able to obtain employment. However, it will be recalled that the applicant has worked hard and diligently as a concreter. Further, he has whilst in prison obtained certificates from the Bendigo TAFE giving him several specialist skills that must enhance his prospects of securing a job. Otherwise, it will be necessary for him to adapt upon his return to Tonga and access what facilities there are in that country to assist him.
Another aspect that should be taken into account in assessing the applicant’s capacity to re-establish himself if he is returned to Tonga must be his involvement with the Church. He did for some years work as a missionary with that Church. Presumably, he will be able to resume contact with his Church in Tonga and gain some significant level of spiritual emotional and personal support. More probably than not, it will also be an important platform to enable him to re-establish social contacts and make new friends. That would to some extent assist in limiting the impediments at a social level that he would experience on his return.
Having acknowledged the challenges that the applicant will face in reintegrating and establishing himself if he is returned to Tonga the Tribunal considers that this other consideration weighs in favour of revocation of the mandatory cancellation of the visa. In assessing what weight to place in favour of the mandatory cancellation the Tribunal considers that in all circumstances it should only be marginal. This is because of the applicant’s familiarity with the Tongan language, having grown up and lived there till he was 25 years and the fact that he is still comparatively young and fit with no known health issues.
Paragraph 9.3 of Direction 99 – Impact on victims
There was no evidence given at the hearing of this application directed towards this other consideration. Certainly, there was nothing by way of direct evidence from any of the applicant’s victims.
The language of this paragraph refers to the impact of the decision on members of the Australian community including victims of the applicant’s behaviour. Insofar as the applicant’s former domestic partner was a victim of his violence if the mandatory cancellation of the visa is not revoked there is to some extent and impact because the applicant would be no longer able to make a financial contribution to the maintenance and support of their daughter. Clearly, he has not done so whilst he has been in prison or immigration detention. This approach does to some extent involve a level of speculation.
However, given the extreme scarcity of evidence concerning this other consideration the Tribunal considers that in all circumstances no weight should be attached to it.
Paragraph 9.4 of Direction 99 – Impact on Australian business interests
There was no evidence before the Tribunal that related to this other consideration. Therefore, no weight will be attached to it.
CONCLUSION
Under Paragraph 8.1.1 of Direction 99 - The nature and seriousness of the applicant’s conduct, the Tribunal has found that very heavy weight must attach to this primary consideration against revocation of the mandatory cancellation of the visa.
As for paragraph 8.1.2 of Direction 99 - The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, the Tribunal has concluded that very heavy weight must be attached to this primary consideration against revocation of the mandatory cancellation of the visa.
Under paragraph 8.2 of Direction 99 - Family violence committed by the non-citizen for the reasons articulated extremely heavy weight must be attached to this primary consideration against revocation of the mandatory cancellation of the visa.
Paragraph 8.3 of Direction 99 - The strength, nature and duration of ties to Australia, for the reasons outlined with respect to this primary consideration, the Tribunal places moderate weight in favour of revocation of the mandatory cancellation of the visa.
Paragraph 8.4 of Direction 99 - Best interests of minor children in Australia affected by the decision, for the reasons articulated, the Tribunal has attached significant weight to this primary consideration in favour of revocation of the mandatory cancellation of the visa.
Paragraph 8.5 of Direction 99 - Expectations of the Australian Community the Tribunal has with respect to primary consideration attached extremely heavy weight against revocation of the mandatory cancellation of the visa given the serious acts of family violence committed by the applicant over some considerable time span which have resulted in prison sentences being imposed on 3 separate occasions.
Paragraph 9.2 of Direction 99 - Extent of impediments if removed marginal weight is placed on this other consideration by the Tribunal in favour of revocation of the mandatory cancellation of the visa.
For the reasons given, the weight attached by the Tribunal to the primary considerations against revocation of the mandatory cancellation of the visa contained in paragraphs 8.1.1, 8.1.2, 8.2 and 8.5 of Direction 99 is substantially greater than the weight that has been placed by the Tribunal in favour of revocation of the mandatory cancellation of the visa arising in respect of paragraphs 8.3, 8.4 and 9.2 of Direction 99.
Given that the weight attached to the applicable primary considerations, as explained above against revocation of the mandatory cancellation is greater than that attached to two primary considerations and one other consideration of Direction 99 in favour of revocation of the mandatory cancellation of the visa, the Tribunal is satisfied that there is not another reason to revoke the mandatory cancellation of the visa. Therefore, the correct and preferable decision is that the reviewable decision be affirmed.
These findings are consistent with the guidance given to decision-makers, including this Tribunal, in Paragraph 5.2 (2) of Direction 99 that non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia.
DECISION
By reason of the foregoing matters the reviewable decision is affirmed.
I certify that the preceding 239 (two-hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Cameron
...................................[sgd].....................................
Associate
Dated: 3 June 2024
Dates of Hearing: 23-24 May 2024
Applicant Representative Self-represented
Respondent Representative Mr. Matthew Daly, Mills Oakley
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