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

Taua and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3380 (16 September 2021)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/4470

GENERAL DIVISION )
Re: Teni Taua
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:  Senior Member J Rau SC
DATE OF CORRIGENDUM:            20 September 2021
PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

At paragraphs 82 and 83, to replace any reference to “Child A” to read “NT”.

.............................[Sgnd]............................
J RAU SC
(Senior Member)

Division:GENERAL DIVISION
File Number: 2021/4470
Re:Teni Taua
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member J Rau SC
Date:16 September 2021
Place:Adelaide

The decision under review is affirmed.
............................[Sgnd]...............................
Senior Member J Rau SC
CATCHWORDS
MIGRATION – refusal of application for Special Category (Temporary) (Class TY) (Subclass 444) under section 501(1) - where Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – domestic violence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
16 September 2021
INTRODUCTION

The Applicant is a 26-year-old citizen of New Zealand. He came to Australia with his immediate family, father, mother, sister and, three brothers, on 25 December 2005, when he was 11 years of age. His parents are Samoan nationals. He has uncles, aunts, cousins, and other relatives who are resident in Australia. Some of them are Australian citizens. The Applicant held, at the time of its revocation on 16 November 2020, a Class TY Subclass 444 Special Category (Temporary) Visa (“the Visa”), granted on 21 January 2012.
On 21 July 2020, the Applicant was convicted of assault occasioning actual bodily harm, two counts of common assault, four counts of contravening prohibition / restriction in AVO (domestic), and stalk / intimidate intend fear physical etc harm (domestic). He was sentenced to an aggregate term of 20 months imprisonment, commencing on 16 January 2020 when he first went into custody. He was given a non-parole period of 12 months, becoming eligible for parole on 15 January 2021. His period on parole expired on 15 September 2021. This means that if he were not in detention, he would no longer be subject to supervision by NSW Corrections.
By letter dated 16 November 2020, the Applicant was notified of the mandatory cancellation of his visa under section 501(3A) of the Migration Act 1958 (“the Act”).
On 9 December 2020, the Applicant made representations seeking to revoke the cancellation.
By letter dated 23 April 2021, the Applicant was invited to comment on further information, specifically, the sentencing remarks of the Local Court of New South Wales Campbelltown on 21 July 2020, the sentencing remarks of the District Court of New South Wales Campbelltown on 6 December 2018 and an incoming passenger card dated 21 January 2012 on which the Applicant did not declare his criminal convictions.
On 24 June 2021 a delegate of the Respondent refused the Application pursuant to s 501CA(4) of the Act to revoke the mandatory cancellation. The Tribunal has jurisdiction to review that decision.
The Applicant subsequently lodged an application for review in this Tribunal on the 6 July 2021.[1]
[1] Exhibit 2, G1, p 3-8.
The hearing commenced on 7 September 2021, upon the Applicant being sworn in to give evidence, he requested an adjournment for 2-3 weeks to obtain legal representation. I advised the Applicant this was not possible having regard to the strict time limits associated with his application. He then requested an adjournment for “a few days” as he stated that he had legal representation. The Applicant had not raised this issue previously with the Tribunal. I adjourned the hearing briefly to enable both the Applicant and the Respondent’s representative to speak with the Applicant’s lawyer. On resumption of the hearing, it remained unclear whether the Applicant had in fact retained a lawyer or he was still in the process of trying to retain one. During the adjournment, the Respondent’s legal representative (Ms Campbell) was provided with a phone number by the Applicant. She was able to speak with a lawyer who apparently had only just spoken with the Applicant. It seemed that no agreement had at that time yet been reached for the Applicant to be represented. I agreed to adjourn the hearing for one week to give the Applicant an opportunity to secure representation. The hearing was adjourned and recommenced on the morning of 14 September 2021. The Applicant was not represented. He appeared via Microsoft Teams video link from Christmas Island Immigration Detention Centre. Ms Campbell of HWL Ebsworth Lawyers for the Respondent also appeared via Microsoft Teams. The Applicant’s brothers HT and KT both gave evidence on 14 September via telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
The Applicant struggled to give a clear account of himself and was a somewhat poor historian. Much of his evidence was confusing. I did not form the view that the Applicant sought to mislead the Tribunal, but his reserved demeanour made it difficult to obtain helpful evidence from him on many occasions.
BACKGROUND AND OFFENDING
The Applicant has an extensive criminal record. See Annexure “B”.
The Applicant initially offended when he was 16 years of age. This offending involved acting in concert with members of a youth gang in acts of graffiti vandalism and damage to public property. The Applicant gave evidence that he was not a gang member as such but did associate with at least one youth who was.
The fact sheet tendered in the Campbelltown Children’s Court on 13 January 2011 in connection to theses offences states:
“Offences
Break & Enter house etc destroy etc property >$60,000 Si
Crimes Act 1900
112(1)(A)
Damage/deface any premises/property with graffiti implement
Graffiti Control Act 2008
4(1)
Damage/deface any premises/property with graffiti implement
Graffiti Control Act 2008
4(1)
Damage/deface any premises/property with graffiti implement
Graffiti Control Act 2008
4(1)”
………
“The young person has offered full admissions to the matters before the court. It was the intention of police to offer the young person a juvenile conference, however current legislative restrictions have prevented this approach due to the monetary value of the destruction caused to the Sarah Redfern High School.”
………
“The ‘Minto Soljahs’ are a street gang located within the Minto 2566 postcode. The ‘Minto Soljahs’ also known as ‘MS’ are responsible for numerous graffiti offences within the community. Members of ‘MS’ are known to commit other serious offences to cause fear and raise their apparent ‘bad reputation within the community. The monetary cost to the community has been immense.
About 5:00pm on Friday the 29^th of October 2010, young person [TG] contacted other young persons [DR] and Tenu TAUA from his mobile phone. [TG] arranged to meet the [DR] and TAUA for the purpose of causing graffiti to the local community.
[TG] filled his school bag with about six pressurised spray paint cans and made his way to an alleyway near Benham Road Minto and The Grant Primary School. [TG] met with [DR] and TAUA before removing spray cans from his back pack.
[TG] then used the spray cans to pain references to ‘MS’ on the surrounding walls of the alleyway and outer fence of The Grange primary school.”
………
“[DR] handed TAUA a spray paint can. TAUA then painted references on the surrounding walls and school.
The three young persons spray painted ‘MS’ and other references on road signage, fencing, power poles and high voltage electrical boxes before attending the Kabbarli Early Learning Centre where they further painted references to ‘MS’ on the rear wall of the building.
The young persons then moved towards Minto Train Station defacing road signage, electrical boxes and street light poles along the way. The young persons attended the Minto Train station where they caught a train from Minto to Ingleburn. The young persons walked around Ingleburn where [TG] painted references to the ‘Minto Soljahs’ on surrounding building. The young persons attended an address in Ingleburn for a short time before they were driven back to the Minto area.”
………
“GRANT, [DR] and TAUA graffitied references to ‘MS’, ‘UCP’, ‘RUG’, and ‘lil parrot’ on a roller shutter on the outside of the Minto Mall shopping centre.
The young persons walked to Guernsey Road Minto where they painted references to the ‘Minto Soljahs’ on the outer fencing of the Passfield Primary School, the Sarah Redfern Pre-School and surrounding street signage.
About 8:20pm the young persons attended the outside of the Sarah Redfern High School. The young persons entered and trespassed within the school grounds by jumping the fence at the rear of the school.
[TG], [DR] and TAUA walked around the school and ‘tagged’ or placed graffiti on nearly every building within the school. [TG], [DR] and TAUA painted numerous references to the ‘Minto Soljahs’ throughout the school and other insulting personal references to teachers and other students.
[TG], [DR] and TAUA attended the outside of an administration block within the school. [TG] informed the other young persons of his intention to break into the school. [TG] approached a glass panelled door and kicked a bottom portion of the door causing it to shatter. [TG] kicked the window again which caused a hole in the panel.
[TG]and [DR] entered the administration block whilst TAUA remained outside and acted as a look out. [TG] punched a computer screen before informing [DR] of his intention to burn the school down.
The young persons left the building and walked to an adjoining administration block. [TG] approached a large wheely bin and set fire to it.”
………
“They jumped the fence at the rear of the school and ran away as police were alerted to the fire from the smoke produced from the burning administration block and bin”
………
“Damage to the school is expected to exceed $300,000.
On Tuesday the 2^nd of November 2010, Young person Teni TAUA was placed under arrest and cautioned in relation to numerous graffiti offences and the break, enter and malicious damage of the Sarah Redfern High School.”
………
“The young person made full admissions to causing graffiti in the Minto area, entering the grounds of the Sarah Redfern High School and to assisting in the break, enter and committing the malicious destruction of the administration block and bin within those grounds.”
………
“The young person was charged with the matters before the court.”[2]
[2] Exhibit 3, SG1, pp 227-231.
The Applicant put his offending down to “peer pressure”. He said that he did not want to go back to school and that he left school in year 10 and did a TAFE course in “retail”. He got work “loading and unloading containers”.
His understanding of whether he had a criminal record as a result of this, is unclear. In his evidence he both agreed with the proposition that he knew that he had a criminal record and said that he “thought that the case was dismissed”. The relevance of this goes to his completion of an incoming passenger card on his return from a trip to New Zealand on 21 January 2012 on which he indicated that he did not have any convictions. In evidence he said of this incident that he “probably didn’t understand the question… I am not sure… I didn’t think I had a criminal record”.
The next significant event is subject of a police report dated 3 January 2018.[3] The Applicant was 23 at the time and the report refers to the Applicant as “the POI”. The “Incident Details” heading records “Mental Health Act” and “Domestic Violence Episode”. It seems that the victim in this particular instance was the Applicant’s mother. The report goes on to state the following:
“The POI, Teni TAUA is the child of the victim,…… The POI has currently ceased self administering amphetamine and as a result, the POI has argumentative episodes victim. About 1550 hrs on Wednesday 3 January 2018, the POI and the victim had a verbal argument at their home… for undisclosed reason. During the argument, it is alleged that the POI broke he’s guitar by throwing it on the ground. To avoid any further confrontation, the victim left the location and contacted Macquarie Fields Police. At 1508 hrs, police attended the location and spoke to the victim who provided police with the above version. The victim was hesitant to speak to police however she disclosed that she was concerned that the POI may suffer from mental health. Police asked a number of questions in relation to the alleged damage however the victim was hesitant to disclose information to police. A few minutes later, police spoke to the POI who was uncooperative and spoke little with police. During the conversation, it was noted that the POI looked at the authors police firearm and stated, “What does it take to have a bullet to my head”. The POI appeared to be calm whilst making the self-harm statement. Police continued to ask questions in which he continued to stay, “would I trust you to shoot me …” At 1600 hrs, POI was conveyed to Campbelltown Hospital via ambulance. Police waited an hour before relieved by security…….”
[3] Exhibit 3, SG2, p 267.
This incident report did not result in the Applicant being charged with any offence. The victim was reluctant to provide details and presumably not interested in pressing charges. It is a matter of some concern however that the alarming statements made to police, suggesting that the Applicant was contemplating what is sometimes referred to as “suicide by police”, apparently did not result in any engagement with, or response from, mental health services. This is the case notwithstanding the fact that the heading on the incident report explicitly refers to the “Mental Health Act”. The Applicant’s statements to police should have raised a red flag. If some appropriate intervention had occurred at this point in time, it is possible that subsequent incidents may have been avoided. Even without the benefit of hindsight, this episode should have rung alarm bells.
The Applicant next came to the attention of police some two weeks later on 19 January 2018, as a result of an assault on his younger brother, KT (then aged 17). The fact sheet tendered in the Campbelltown Local Court on 3 July 2018 states as follows:
“This is the second time the Accused has been brought before the courts. The Accused made full admission to Police in relation to this incident.”
………
“The Victim in this matter is [KT]. The Accused is the older brother of the Victim. the Accused and the Victim live at […] along with their parents [KT Snr], [LT] and their siblings [FT], [HT] and [NT].
About 1:00pm Friday 19 [January] 2018, the Victim and the Accused were within the bathroom area of 12 Christie Street, Minto. Also at the residence was [KT Snr], [FT], [HT] and [NT]. At this time the Accused and the Victim became involved in a verbal argument. During this argument the Accused has punched the Victim twice to the left side of his face and once to his forehead. As a result of this [FT] has entered the bathroom and intervened. [FT] has pushed the Accused to a bedroom area within the premises. The Accused was still yelling and screaming at this point.
Due to his behaviour of the Accused [FT] has contacted Police. As the Accused has become aware of this the Accused has entered the kitchen area of the premises and picked up a 15cm bladed kitchen knife. The Accused has approached the Victim who was at the front door of the premises and has continued to yell and scream at the Victim. During the time the Accused has swung a knife in the direction of the Victim. The blade of the knife has cut the right hand of the Victim, causing a minor laceration approximately 6cm in length.
As a result of this [KT Snr] has intervened and has pushed the Accused to the rear backyard of the premises. Once in the backyard the Accused has grabbed a machete knife. The Victim, [FT], [HT] and [NT] had retreated to […] at this time. The Accused continued to yell, ‘Tell the Cops when they come i will stab them.’ After a short time later [KT Snr] has disarmed the Accused of both knives.
Police arrived a short time later and located the Victim, [FT], [HT] and [NT] outside of […]. they directed Police to the rear of the premises. Police located the Accused and [KT Snr] within the detached garage. Police secured the knives and attempted to speak with the Accused. The Accused was crying at the time and would not answer Police question. Police were provided with a version of events from the Victim.
The Accused was then cautioned and arrested before being placed in the rear of a caged Police vehicle. Police obtained a Domestic Violence Evidence In Chief Video Statement from the Victim.”
………
“The Accused made admissions to punching the Victim in the head. The Accused also made admission to grabbing the kitchen knife and the machete with the intention waiting for arriving Police. The Accused did not elaborate on this fact. The Accused also made admission to cutting the Victims hand as a result of the Victim attempting to dis arm the Accused.
The Victim sustained a minor laceration to his right hand as a result of the assault. the Victim stated to Police that he is in fear of the Accused and his actions.”[4]
[4] Ibid, SG1, pp 183-184.
This episode was put to the Applicant by Ms Campbell. The Applicant remembered the incident and substantially agreed with the account given by police which was based on a report of the incident made by his sister. The Applicant however had some additional things to say about the event. He indicated that the fighting that was observed by his sister had in fact been part and parcel of him “sparring” with his brother. The Applicant denied having swung a knife in the direction of his brother but accepted that his brother received a laceration to his hand as he attempted to disarm him. The Applicant stated, “I picked up the knife because I was hoping they (the police) would shoot me when they saw me with the knife”. This is consistent with the Applicant’s statement recorded in the fact sheet reproduced at paragraph 17 above, namely, “tell the cops when they come, I will stab them”. The Applicant gave evidence that it was his intention in picking up the knife, to be in a situation where the police would be provoked into shooting him. It seems that the Applicant did not explicitly articulate this to anybody at the time, although his words and actions on that day, when considered in the context of his statements to police on 3 January 2018, again should have raised red flags about his mental health. As in the case of the episode on 3 January 2018, if mental health services had been engaged at this time, further episodes may have been avoided. As it turned out, nothing of this sort happened. His behaviour was viewed through the prism of the criminal justice system, not mental health.
An Apprehended Domestic Violence Order (“ADVO”) was taken out and the matter was listed to be heard in the Campbelltown local Court on 2 July 2018. The Applicant failed to attend court and warrants were issued to secure his attendance. In evidence, the Applicant essentially explained this on the basis of a lack of organisation and attention on his part, rather than a deliberate plan to avoid attendance. When he did subsequently attend court on 7 August 2018, he was placed on seven-month bond for common assault and an 11-month bond for assault occasioning actual bodily harm. Unfortunately, this court attendance did not precipitate a “Griffiths remand” or any other procedure requiring an assessment or treatment of the Applicant’s mental health issues. It was not long before the Applicant offended again.

On 18 of August 2018, the Applicant was involved in another act of domestic violence, this time against his younger brother, NT (aged 13 years at the time). The fact sheet tendered in the Campbelltown Local Court on 21 August 2018 states as follows:
“The Accused is currently subject to probation in regards to charge H66805352 in which two imprisonment sentences were imposed for nine and eleven months, however suspended on section 12 bonds.
The Accused has recently been convicted of a similar offence against a sibling. Police have fears his violent actions may result in the serious injury of a family member.
The Accused has no employment and no dependents.”
………
“The Accused in this matter is Teni TAUA (26/09/199[4]). The Victim in this matter is [NT] [D.O.B]. The Accused is the older brother of the Victim. The Accused and the Victim live at […] along with their parents [KT Snr], [LT] and other siblings.
In January 2018 there was a domestic violence incident at the family home resulting in a nationally recognised Domestic Violence Order being taken out by Police listing the Accused Tenu as the defendant and the Victims older brother [KT] as the Person In Need Of Protection. This order is for standard conditions, being:
1. You must not do any of the following to <<protected people>>, or anyone <<she/he/they?? <<has/have>> a domestic relationship with: A) assault or threaten <<her/him/them>>, B) stalk, harass or intimidate <<her/him/them>>, and C) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of <<protected people>>.
This order is enforceable until the 01/07/2020.
About 2:30pm on Saturday the 18^th of August 2018, the Victim and the Accused were within the living room area of […]. Also at the residence was KT (17 years old). At this time the Accused has told KT to clean up.
The Accused has then approached the Victim and has begun to strike him a number of times in succession with a stainless steel potato masher. These strikes were predominately aimed at the legs and head of the Victim. In order to protect himself the Victim has covered these areas with his arms, this has caused the potato masher to impact with his arms which has caused the Victim a considerable amount of pain.
ON Monday the 20^th of August 2018 the Victim and his mother attended Macquarie Fields Police Station to report the incident. Police have obtained details and have also obtained a audio and video recorded statement from the Victim in the presence of his mother. Photographs of the Victims injuries were also obtained which consisted of a number of bruises to the Victim’s forearm consistent with him being in a self defensive stance. The Victim also had a small laceration on his left forearm which was also consistent with the edge of the masher impacting with his arm.
About 2:40pm the same day Police attended […]. Police applied safeguards pursuant to the law Enforcement Powers and Responsibilities Act before the Accused was arrested and cautioned before being searched and placed in the rear of a caged Police vehicle.”
………
“The Accused stated that his brother was lying about the incident stating he had sighted his injuries and asked him about them before making a joke the Victim should tell people that he had caused them.”
………
“As a result of assaulting the Victim the Accused has breached the Apprehended Violence Order in which the Victim is covered with via his relationship with his brother [KT] who is the listed PINOP.”[5]
[5] Ibid, SG1, pp 195-197.
In evidence the Applicant said that he remembered this episode. Whatever it was that precipitated the attack it was not a matter of any consequence. When asked to explain his behaviour on this occasion, the Applicant alluded to the fact that he had already been placed in a position where he had felt compelled to plead guilty to a crime that he did not really commit. (In this instance he was referring to the episode occurring on 19 January 2018). In saying this he was not disputing so much what occurred, rather the interpretation that had been placed upon it. In particular he emphasised that he was “sparring” with his brother not assaulting him and that the knife was not picked up with an intention to injure his brother, but with the intention of making himself a shooting target for police. He went on to explain the 18 August episode in these terms: “I thought maybe that’s who I am…” “Maybe that’s who they want me to be…”. This was a puzzling explanation, suggesting unusual thought processes.
Again, no red flag was apparently raised about the Applicant’s need for mental health services.
On 9 October 2018, the Magistrate hearing the case revoked the bonds that had previously been imposed and sentenced the Applicant to imprisonment. The Applicant appealed against the severity of the penalty imposed. In disposing of the appeal from the sentence imposed in the Local Court, District Court Judge English said in her judgement of 6 December 2018:
“The appellant appeals against the severity of penalty imposed by the Campbelltown Local Court on 9 October 2018. In January 2018, the appellant, who was a sibling of the victim and the victim, became involved in an argument in the family home. During the argument the appellant punched the victim to the left side of his face and to his forehead. Another family member intervened. That sibling pushed the appellant into a bedroom area. The appellant continued to yell and scream. The sibling contacted police. When the appellant became aware that the police had been contacted, he entered the kitchen area of the house and he armed himself with a 15 centimetre kitchen knife. He then approached the victim who was by that stage at the front door of the premises and continued to yell and scream at him. He swung the knife in the direction of the victim and the blade struck the victim’s right arm, causing a minor laceration. Another family member intervened and pushed the appellant into the backyard of the premises. Once in the backyard he then armed himself with a machete. The victim, and other family members retreated back into the house. The appellant continued to yell. He yelled, “Tell the cops when they come I will stab them.” A family member was able to disarm the appellant. The police arrived and when the police arrived he was seen to be crying.”
………
“He was arrested and taken to the police station. He made admissions to punching the victim to the head, grabbing the kitchen knife and the machete. He made admissions to cutting the victim’s hand but said it was a result of the victim attempting to defend himself. An apprehended domestic violence order was taken out protecting the victim from the offender. The matter was listed to be heard in the Campbelltown Local Court on 2 July 2018, but the appellant failed to attend Court and warrants were issued to secure his attendance. When he did attend court on 7 August 2018, he was placed on a seven month s 12 bond for common assault and an 11 month s 12 bond for the assault occasioning actual bodily harm. The maximum penalty for common assault is two years. The maximum penalty for assault occasioning actual bodily harm is five years on indictment or two years when dealt with summarily. Within a very short period of time of being placed on those suspended sentences, the appellant reoffended again. Again, it was the same family member who was the victim. On this occasion the appellant struck him a number of times with a stainless steel potato masher. He was struck in the arms and the head. When the victim attended the police station two days later there was visible bruising to the victim’s forearm, consistent with the victim acting to protect himself. He had a small laceration to his left forearm, consistent with the edge of the potato masher, the weapon, impacting with his arm. On this occasion when the appellant was interviewed he said that his sibling was lying about the incident saying that the appellant had sighted the injuries and was making a joke about the victim being injured and was telling the victim that he should tell police how he came to be injured.”
………
“At the time of course there was an apprehended domestic violence order in place protecting the victim and the appellant had only recently been placed on that suspended sentence for the earlier serious offence. Of course at the time he committed that first offence he had no prior criminal antecedents but it was certainly a serious offence. Both matters are aggravated. The incidents occurred in the family situation in a family home, children were present and in respect of the second offence of course he was on conditional liberty. The Magistrate revoked the s 12 bonds which had been imposed and sentenced the appellant to fulltime custody. The original bonds were one of 11 months for the assault occasioning actual bodily harm and one for seven months for the common assault. The appellant did not appeal the severity of those penalties when they were imposed. Having breached the bonds, both further offences of domestic violence, the appellant left the Magistrate in my view, with no opinion other than to impose fulltime custodial penalties in respect of those bonds, they having been breached. The appellant had been extended leniency in the first place when the suspended sentences were imposed. What the appellant did then was to breach the trust placed in him by the Court by reoffending and doing so, once again in a most serious of ways. In respect of the further offending, I find that fulltime custodial sentences should have been imposed and in my view, the imposition of full time custodial penalties was the appropriate penalty to be imposed. The total effect of the… sentence now is a non-parole period of eight months and a total term of 14 months…. I am asked to give consideration to imposing sentences to be served by way of intensive correction orders. Of course the imposition of an intensive correction order now in effect, replaces what was the s 12 suspended sentences. The pre-sentence report which is sought to be relied upon on the appellant’s behalf is not particular supportive of him and in any event, deems him to be unsuitable to serve a community service order. Taking all of those matters into account I am not persuaded that it is an appropriate course to adopt to impose the sentences to be served by way of intensive correction orders. The seriousness of the first offences warranted in my opinion, the imposition of fulltime custodial sentences in the first place, having regard to the seriousness of the offences committed to which I have alluded to. Then to breach the leniency afforded to him very soon thereafter, in my view, shows a blatant disregard for court orders and the rights of family members to protection. There is also the fact that he has had little regard to attending to his legal obligations when he failed to attend court on the first occasion. There must necessarily be a partial accumulation of the sentences to be imposed to reflect the principles of totality. I am not persuaded in the circumstances that the penalties imposed are too severe. The pre-sentence report does him no favours. The appeal is dismissed. The penalties imposed in the Court below are confirmed in all respects.”[6]
[6] Exhibit 2, G4, pp 33-36.
The Applicant was released from gaol in June 2019 and eventually returned to his family home in breach of his ADVO. He says that he may have initially spent three months with an aunt and uncle before returning home full time. When asked about his return to the family home in breach of the ADVO, the Applicant said that he had obtained a variation of the order in July 2019 enabling him to return to live with his family. There is no record to suggest that this ever happened and indeed he was subsequently charged with and convicted of offences relating to his breach of the order. It is unclear whether these breaches were particularised by reference to his being on those premises or by reference to his conduct against a protected person, (his brother).
The Applicant gave evidence that after his release in 2019 he did see a psychologist whose name was Harold. He said that this was required by correctional services. He saw Harold “six or seven times”. He has not had any other treatment. He indicated that he felt a little better after having the treatment but conceded that he had not been “engaging with treatment”. He indicated that he had been very reluctant to “open up” and therefore did not get as much as he possibly should have out of this professional assistance. This appears to be the full extent of his treatment for mental health issues. He said that if he were released he would make an effort to engage.
The Applicant committed further assaults on his brothers HT (then aged 17) and NT (then aged 14) on 6 and 16 January 2020. The fact sheet tendered in the Campbelltown Local Court on 17 January 2020 states as follows:
“Date: 17/01/2020
………
The accused is unemployed. The accused expressed to police that he is in need of help and knows he did the wrong thing. The accused expressed to Police he is willing to get help for his issues.
………
The accused in the matter is Teni TAUA. The victims in the matter are, victim [HT] (17 years old) and victim 2 [NT] (14 years old). The accused, victim 1 and victim 2 live at […] with their sister [IT] and parents, [LT] and [KT].
The accused has a current Enforceable Apprehended Domestic Violence Order which lists him as the defendant and the Person In Need of Protection as [NT].
On the 9^th of October 2018 the Apprehended Domestic Violence Order was made which outlines;
………
You must not do any of the following to [NT] or anyone he has a domestic relationship with: A) assault or threaten him, B) stalk, harass or intimidate him, and C) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of [NT]. You must not live at: A) the same address as [NT], or B) any place listed here..
This order expires on the 9^th of October 2020.
On Saturday sometime in the afternoon of the 4^th of January 2020, victim 1 and the accused were inside of their home garage exercising together. The accused picked up a wooden, handmade mallet and hit victim 1 on the back of the head three times. Victim 1 explained the pain to Police to be a 10 out of 10, with 10 being the worst pain he has ever felt. The victim did not believe the accused hit him as hard as he possibly could. Victim 1 told Police, he did not report his to Police or his family and did not seek medical treatment as he was fearful of the accused.[7]
On Monday the 6^th of January 2020 victim 1 finished work around 4:30pm and when he arrived home the accused and him decided to exercise in their home gym in the garage. The victim described the accused to punch and kick the victim 1 in the head and stomach. This caused victim 1 to feel immediate pain and become fearful of the accused. Victim 1 described to Police the accused was progressively assaulting him as their training continued. Once again, victim 1 did not tell anyone about this incident as he was scared and fearful of the accused.[8]
On Thursday the 16^th of January 2020 victim 2 was at home alone with the accused. About 10:30am that morning the accused and victim 2 were playing play station games in the lounge room. The accused and victim 2 were playing online games with their cousin who was not at the house with the accused and victim 2. During the game all three were using headphones and microphones to communicate with each other.
After a couple of hours has passed, the accused became angry with victim 2 because he was not communicating in the game. Victim 2 went into their parent’s bedroom and the accused sometime later walked with the controller in one hand and started shouting at and striking Victim 2 a number of times in the face and ribs with a combination of closed and open handed strikes. As a result of the assault, victim 2’s nose bled.[9]
The cousin they were playing the game with, sent a message saying he could hear them and to turn off the microphone. This caused the accused to become even more angry.
About 1pm Victim 2 and the accused were in Victim 2’s bedroom. At the time the accused picked up a guitar and hit victim 2 across the right eyebrow with the top of the guitar head. This caused victim 2’s right eyebrow to be swollen and bleed. The accused told victim 2 to wash the blood off his eye and put their sisters make up on the split eye in order to hide the laceration.[10]
About 9:30pm the accused said to victim 2 “I’m going to kill you tonight, before I kill myself”. This made victim 2 feel scared and intimidated fearing he would be further assaulted.[11]
The accused has been residing at […] since his release from Gaol in June 2019. The accused is in breach of his ADVO which restricts him from residing or staying at the place where the PINOP [NT] resides. Police took a statement from the mother, [LT] who provided this evidence that the accused had been residing at the location since his release from gaol.
About 10pm on the 16^th of January 2020 Police were called to the house in relation to the above domestic incident. Police separated all parties and took a DVEC statement from Victim 1, a video statement from victim 2 and a written statement from the witness who is their mother, [LT].”[12]
[7] When asked about whether he could recall this episode the Applicant said “I try not to think about it, I don’t remember”.
[8] When asked about this the Applicant said “I’m not sure if I can remember this --- I don’t remember --- I tried to put it behind me”.
[9] The Applicant stated that he remembered this incident and that there were “things on my mind that were irritating”. He said that he accepted that there were “no excuses… mentally I was on edge, anything minor was going to make me upset”.
[10] The Applicant said that there was “no way to explain myself… I had no intention to hit him with it”.
[11] The Applicant said in evidence “I didn’t say that”.
[12] Exhibit 3, SG1, pp 159-161.
The matter went to Court on 21 July 2020. This is the first indication that the Applicant had been assessed by a psychologist and been given a diagnosis. Unfortunately for these proceedings, that report was not produced as part of the court documents and its contents remain a mystery. The record of that hearing relevantly states:
“[The Applicant’s lawyer] My instructions are that it wasn’t immediately from his release in gaol; the first two months he was residing with his aunt and uncle, although he was spending some time at the house in breach of the AVO.
………
From the outset, it's conceded that this is a matter which clearly exceeds the s 5 threshold. It's a breach of an AVO by way of violence, and of course s 14 10 subs (4) applies. The injuries, although minor, as your Honour can see in the photograph, are aggravated by a number of factors that your Honour will see through the facts: the age of the victims, the existence of the AVO, and more than one victim, and the offences occurring over a period of time rather than an isolated offence. And it's conceded that that would place this in a higher range of objective seriousness than otherwise it would be, simply based on the nature of the injuries. And in relation to the intimidation, it's a threat to kill, which is of course objectively rather serious. With any domestic violence offence of course being serious, the Court will have regard to the need for general deterrence and punishment of Mr Taua, as well as specific deterrence, following having regard to Mr Taua's prior criminal history which does not assist him. In respect of general deterrence, it's submitted that Mr Taua is a less suitable vehicle for general deterrence given his mental health conditions referred to by Mr Hudd in his psychological report. In relation to that, I'd refer your Honour to para 11, where Mr Hudd indicates that he has been asked, in relation to paras 9, 33 and 34 - and I would suggest to your Honour that para 4 also should have been referred to in that – that these issues not be ventilated in open court, as they are issues that Mr Taua had not previously disclosed to anyone and would be of rather embarrassment to him, and there's a concern that if this were ventilated, that it may undermine possible future treatment and disclosure. But your Honour will of course have particular regard to those paragraphs and their contents. Mr Taua entered a plea of guilty fairly early in the proceedings. The plea was in relation to amended facts, as the original facts were entirely inconsistent with the DVECs…. Mr Taua is a young 25 year old man who has already unfortunately had significant experience in dealing with the law, and he has displayed genuine remorse throughout the proceedings. It's noted in the fact sheet. It's made clear in his letter to the Court and it’s referred to variously in Mr Hudd’s report. He’s accepted responsibility for his actions and does understand the impact that this would have on the victims and he is and has from the outset wanted to seek help for his issues, which include those disclosed in paragraphs 4, 9 and elsewhere in the report referred to previously, as well as his drug - his drug abuse issues that are discussed within Mr Hudd’s report, in relation to a number of drugs that he had been taking from an early age.[13]
[13] In evidence the Applicant stated that he started using cannabis and alcohol when he was about 16 years of age. He reported having used methamphetamine in 2015 and 2016 but had no treatment for drug use aside from his counselling in 2019.
Mr Taua has not received any particular treatment in relation to his drug… addictions, however he - however I'm instructed that he has requested assistance and to complete programs whilst he’s been in custody, although he indicates that he’s in a long queue to access any assistance. Mr Taua has been diagnosed with complex chronic borderline - complex chronic posttraumatic stress disorder and borderline personality disorder and Mr Hudd opines in his report that although he, of course, needs treatment, with continued treatment he is a low risk. This is consistent with what is reflected in Mr Taua’s history as referred to in his letter whilst he was on parole and seeing a psychologist, he was not reoffending, he was feeling better. He concedes that he stopped seeing the psychologist and this was a poor decision of his. It’s submitted, your Honour, that Mr Taua is a person who has a serious need for assistance and this should be a lengthy period of assistance, and I'd suggest to your Honour that - I would submit, rather to your Honour that your Honour can find special circumstances in that regard in reducing the non-parole period for Mr Taua… Mr Taua has been in custody from 16 January, over 6 months, although it is not his first time.[14]
[14] In evidence the Applicant conceded that there was something wrong with him, that he had anger management issues and that he had failed to fully engage with the psychologist in 2019.
………
[His Honour] The facts are extremely troubling, the persons who are on the receiving end of the violence involve family members, 17 and 14 respectively. There were orders in place, there were contraventions of the orders, the violence that occurred was substantial.
………
There was on 4 January a wooden mallet striking the young person, 17 years old, to the back of head three times, so that's again a very serious example of violence and of that type of offence. 6 January, again, a very serious example, punching and kicking, head, stomach. The fear factor would've been incredible. 16 January, further violence, striking to the face and ribs,… nosebleed, but that perhaps is an example really, not so much of the outcome, but rather the level of force used.
Photograph has been presented concerning the level of actual bodily harm, it is, I accept, at the low end, but it is arguably fortunate in the circumstances given the item that was used, a guitar - a weapon, striking to the right elbow - eyebrow, I should say. It refers to swelling and bleeding and the lack, certainly at the time, of the remorse shown by the defendant was really, you could say, cover up the split eye in order to hide it. The defendant then made a threat and a very serious threat, again, the fear factor would've been incredible. The reason why the fear factor, apart from what was happening at that time, would've been regard to the defendant’s record, it is a substantial one. There are a very large number of domestic violence related matters on his record, dealt with in a variety of ways… there is a helpful report from the psychologist he identifies two principle matters of concern. One personality - sorry, borderline personality disorder and post-traumatic stress. The - those matters are - it is said have a connection to the level of offending in as much of an inability on the part of the defendant to control his emotions in a proper fashion. That said, the defendant clearly on the material knew what he was doing and what he was doing is wrong. I accept though, that those - that level in terms of the personality disorder and the other matters have some connection in terms of the level of culpability on the part of the defendant.
………
it is said, deep regret for his behaviour and a wish to make a positive change. He goes back and acknowledges the number of times that he has been before the Court, but he expresses regret for his actions. The report from Community Corrections identifies, it says, “Not withstanding the letter from the defendant, limited insight would - that he would've been scared, he voiced feelings of remorse that he should've left.” That's undoubtedly the case, of course, one of the matters involved his presence at the place. It’s said, “Records indicate him being engaged and resistant to supervision, medium risk of re-offending”, I think that is a fair assessment to be made. There obviously does need to be a level of supervision by parole upon his release. These matters, as I say, are serious examples of domestic violence, his record is unhelpful as much as it goes really to the level of protection that's needed and to discourage the defendant from type - this type of behaviour… occurring again. From the general statements, general comments, DV, unfortunately domestic violence is a major, major problem. It’s clear that there needs to be a significant deterrent and recognise the harm that's done to the young children… who really were on the receiving end by a much older, larger man.
………
IN SEQUENCE NUMBER 1, BEING THE CONTRAVENE ON 6 JANUARY 2020, AN INDICATED SENTENCE OF 12 MONTHS. SEQUENCE NUMBER 2 BEING THE CONTRAVENE ON 16 JANUARY, AN INDICATED SENTENCE OF 10 MONTHS. SEQUENCE NUMBER 3 BEING THE THREAT AND INDICATED SENTENCE OF 7 MONTHS. SEQUENCE NUMBER 4 BEING THE ASSAULT WITH THE MALLET, AN INDICATED SENTENCE OF 10 MONTHS. SEQUENCE NUMBER 5 BEING THE ASSAULT ABH, BEING THE HIT TO THE - HITS TO THE FACE AND THE RIBS ARE MATTER – SEQUENCE NUMBER 5, AN INDICATED SENTENCE OF 12 MONTHS. SEQUENCE NUMBER 6 BEING THE ASSAULT BEING THE KICK TO THE HEAD, STOMACH, AN INDICATED SENTENCE OF 12 MONTHS. SEQUENCE NUMBER 7 BEING RESIDING AT THE PREMISES, AN INDICATED SENTENCE OF 5 MONTHS. INDICATED - SEQUENCE NUMBER 8 BEING THE CONTRAVENE CONCERNING THE ASSAULT WITH THE MALLET, AN INDICATED SENTENCE OF 10 MONTHS. THERE IS AN AGGREGATE SENTENCE - A HEAD SENTENCE OF 20 MONTHS, A NON-PAROLE PERIOD OF 12 MONTHS TO DATE FROM 16 JANUARY 2020 WHEN THE DEFENDANT FIRST WENT INTO CUSTODY, MAKING THE DEFENDANT ELIGIBLE FOR RELEASE ON PAROLE ON 15 JANUARY 2021.”[15]
[15] Exhibit 2, G5, pp 41-45.

When the Applicant was released on parole on 15 January 2021, he was immediately placed in immigration detention. The unintended consequence of this has been that the Applicant was not given the opportunity of spending time in the community under the lawful supervision of Correctional Services officers. He has not received the mental health assistance that he requires. This may have been prevented in any event by the pandemic. Had the opportunity arisen, the Applicant may have engaged with suitable mental health services and may have been in a position to have called expert evidence in his cause. As it turns out, this did not happen.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides that:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
There are two issues presently before the Tribunal:
·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character test; and if so;
·whether the Tribunal considers that the discretion in section 501CA(4)(b)(ii) of the Act to revoke the cancellation of the Visa should be exercised.
In this particular case, it is worth noting that the Tribunal does not have the capacity to make conditional orders, to require an Applicant to obtain and engage with a mental health plan, or to participate in drug and/or alcohol treatment programs. The Tribunal does not have the power to impose parole like conditions on an Applicant. The Tribunal is exercising a very specific executive function, as if it were in the shoes of the decision maker.
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if he or she is satisfied the person does not pass the character test because he or she has a “substantial criminal record”.
The decision to cancel the visa can be revoked if the Minister, or the Tribunal in the place of the Minister, is satisfied either that the person passes the character test, or there is “another reason why “the original decision should be revoked.[16] A decision under s 501CA(4) of the Act involves an assessment and evaluation of facts for and against revoking the cancellation. If it is satisfied, following an assessment of those factors, that the cancellation should be revoked, the Tribunal is obliged to act on that view.[17]
[16] S 501CA(4) Migration Act 1958.
[17] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 21 July 2020, the Applicant was sentenced to a term of imprisonment of 20 months with a non-parole period of 12 months commencing on 16 January 2020.
The Tribunal therefore finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Tribunal must therefore consider whether there is “another reason why the original decision should be revoked”.
In considering whether to exercise the discretion in s 501CA (4)(b)(ii) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[18]
[18] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(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 6 of the Direction provides that:
“Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[19]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[20]
[19] [2018] FCA 594.
[20] Ibid, [23].
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
In this case, as has already been set out in detail, the Applicant has an extensive history of serious family violence, including against minors. Family violence is defined in the Direction as follows: “family violence 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 of behaviour that may constitute family violence include: (a) an assault; or (b) a sexual assault or other sexually abusive behaviour; or (c) stalking; or (d) repeated derogatory taunts; or (e) intentionally damaging or destroying property; or (f) intentionally causing death or injury to an animal; or (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or (j) unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.”[21]
[21] Direction 90, paragraph 4(1).
It is likely that the police record of 3 January 2018, referred to above, also constitutes some evidence of conduct amounting to “family violence”. The particulars of this conduct remain unclear.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
This consideration is neutral.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant has been sentenced to two terms of imprisonment. Once in 2018 and again in 2020. Both sentences involved serious offences of family violence. The latter offending also occurred in flagrant disregard of ADVOs made to protect the victim of his initial assault.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant’s offending has been very serious and repeated in the face of lenience from the Courts. He has breached ADVOs. Notwithstanding the Applicant’s unsubstantiated claim of an amendment to the orders to permit him to reside in his family home, there is no doubt that the Applicant appreciates that his conduct in assaulting his brothers was wrong and in breach. The Applicant’s record as a youth offender demonstrates serious anti-social behaviour and acting in concert with others, to cause serious damage to critical public property. The Applicant’s record suggests a pattern of increasing violence against younger members of his own immediate family.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The cumulative effect of the Applicant’s offending is extremely serious. From damage to public assets to brutality repeatedly inflicted on his younger siblings, the Applicant’s conduct has been appalling. As was observed by Magistrate Guy in July 2020, for the youths who were the victims of his acts of wanton violence in their own home, “the fear factor would have been incredible”.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant has made a false declaration on an incoming passenger card when returning to Australia on the 21 of January 2012, denying his criminal record. As noted above, his explanation was unconvincing, however, I do note that the only relevant offending at the time of making the full declaration was his offending as a youth.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
There is no evidence of such a warning, so this consideration is neutral.
I do not consider factors (b) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect 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.
Paragraph 8.1.2(2) provides that 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;
(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; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The details of the Applicant’s offending are set out above and in Annexure “B”. Further offending by the Applicant would be extremely serious. It is only perhaps a matter of good fortune that the Applicant’s conduct has not yet resulted in serious, permanent injury or even death. So far, his violence has been confined to members of his own family. If he were to be living elsewhere, it is entirely possible that members of that household may be at risk. The Applicant has demonstrated a proclivity to use weapons in his assaults, including a knife, a mallet, and even a guitar.
The other very disturbing feature of this case is the fact that the Applicant has seriously entertained engaging in conduct which would result in “suicide by police”. This is first and foremost a serious mental health issue. If properly treated, the Applicant may constitute a very low risk of re-offending. Unfortunately, however, he remains essentially untreated. Obviously, were such an encounter with police to occur, the result to the Applicant would be catastrophic. Furthermore, there is potential for harm to occur to innocent third parties in the vicinity, who may either be injured directly or suffer mental injury by reason of close observation of such an episode. There is also the important issue of the impact that such an event would have on the mental health of the police officers involved.

This is a case in which the Applicant’s serious, and substantially untreated mental health condition looms large in the application of many of the considerations required by Direction 90.
Any further offending by the Applicant would be very serious, possibly even catastrophic.
Likelihood of engaging in further criminal or other serious conduct
The Applicant was given an opportunity to reform his behaviour after the initial offending. He evidently chose to ignore the remarks directed to him by the courts. He has ignored ADVOs and he has continued to offend. He has not sought out and maintained appropriate support or treatment for what are described as “borderline personality disorder and post-traumatic stress disorder:” He has an inability to “control his emotions in a proper fashion”. He is described by Community Corrections as having “limited insight”. He is described as being “resistant to supervision, medium risk of reoffending”. It is also stated that “There obviously does need to be a level of supervision by parole upon his release”. The period of his parole expired on 15 September 2021. If he were to be released now, it would be without any of the supervision recommended. There are unspecified drug abuse issues, in relation to a “number of drugs that he has been taking from an early age”. The initial ADVO expired on 9 October 2020 and there is nothing to prevent him lawfully returning to live with his victims (if they would have him). In this context, is relevant to note that a community corrections report prepared on 25 May 2021 states in respect to the Applicant’s post-release accommodation plans:
“Attempts to source suitable accommodation for Mr Taua in the event he was not taken into immigration detention upon release from custody were unsuccessful. His family were unwilling to housing, citing fears for the safety of the children and the only friend Mr Taua put forward as a potential co-resident was also in custody.
It is unclear whether Mr Taua’s immigration status would deem him eligible for emergency accommodation should he be released to the community.”[22]
[22] Exhibit 2, G21, p 128.
If he were released, the Applicant would have to seek accommodation. He has never lived on his own or managed for himself in the past. He would find this very difficult without support.
According to a Sentencing Assessment Report prepared for the Court hearing on 21 July 2020:
“History of anti-social behaviour
- Mr Taua’s history of anti social behaviour primarily relates to domestic violence.
Attitudes
- Mr Taua reported at the time of the offences he was experiencing feelings of frustration and resentment, due to lack of employment.
- He acknowledged that his lack of impulse control escalated the incidents and saw him act in an aggressive manner.
- He advised that the situations with his brothers (the victims in the offence) had escalated quickly and he failed to consider the effect of his actions would have on the victims.
Domestic Violence
- Mr Taua has previous charges for domestic violence related offences.
- Mr Taua has failed to engage in intervention to address anger concerns.
- He acknowledged at the time of the offence he knew that he was breaching the conditions of his order.
RESPONSIVITY
Insight into impact of offending
- Mr Taua displayed limited insight into the impact of his offending on the victims, saying (his brothers) would have been scared at his behaviour. He voiced feelings of remorse advising “he should have left”.
- After reflecting on the offence, he was able to verbalise numerous alternative actions he could have taken.
Willingness and ability to undertake intervention
- Mr Taua has expressed his willingness to undertake intervention.
- During the sentencing assessment process contact with a psychological service provider in his area confirmed their ability to provide him with an intake assessment on his release from custody.
Willingness and ability to undertake community service work
- Mr Taua has expressed his willingness to undertake Community Service work and he can be placed with a community agency.
Response to supervision
- Mr Taua’s previous response to supervision had been deemed unsatisfactory. Records indicate he had been extremely difficult to engage and resistant to supervision.
ASSESSMENT AND RECOMMENDATIONS
Risk assessment
Mr Taua has been assessed at a T3-medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).
Supervision plan
If the court makes a supervised order, Community Corrections will supervise Mr Taua at the T3-Medium supervision level of the Service Delivery Standards. This means that he will be required to report to a Community Corrections Officer every 2 weeks.
During the COVID-19 pandemic, the level of service delivery may be reduced or altered, for example, Mr Taua may report to the Community Corrections Officer by telephone.
At this time, Community Corrections will implement the following supervision plan:
- EQUIPS - Foundations Program- A CSNSW therapeutic program designed to reduce the risk of re-offence. In response to Covid-19 CSNSW programs are currently suspended. He will be assessed for suitability on commencement.
- Mr Taua will be referred to the local Community Mental Health Service, in respect to anger management, mental health and generalist counselling.
- Supervision interviews will be focused on implementing behaviour change with likely programmed guide to intervention modules to include, relationships, managing stress and anger as well as communication.
Recommended order conditions
Community Corrections considers that no conditions other than a supervision condition are required to implement the supervision plan above.
Community service assessment
Community Corrections has assessed Mr Taua as suitable to undertake community service work. As all community service work is currently suspended due to the COVID-19 pandemic, Mr Taua will be credited with 7 hours per week until work resumes.
If a community service work condition is made, Mr Taua should telephone the Campbelltown Community Corrections Office within 7 days.”[23]
[23] Ibid, G17, p 118-119.
In addition to this, there are references in the court record of the same date to his “drug abuse issues……in relation to a number of drugs that he had been taking from an early age”, and to mental health issues. The Applicant was not particularly helpful in providing information about his history of drug use, although it does not appear that he has been a chronic heavy abuser. Unfortunately, the Tribunal also does not have a copy of the psychological report of Mr Hudd referred to in the transcript. This only adds to the questions about the risk that the Applicant presents to the community. Whatever may lay behind these remarks, there is nothing to suggest that the Applicant has been engaged in relevant drug rehabilitation programmes or sustained mental health treatment. It also seems that the current pandemic has temporarily required the suspension of post release, community based mental health support services.
Having regard to all of the above, and the significant known unknowns, (i.e. regarding his drug use and mental health issues, and where he might live etc), the Applicant presents a significant risk of re-offending.
Conclusion: Primary Consideration 1
This Primary Consideration 1 weighs very heavily against revocation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The details of this have been set out at length.
Conclusion: Primary Consideration 2
This Primary Consideration 2 weighs very heavily against revocation.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The only known relevant minor child is NT, the Applicant’s youngest brother, who is currently 15 years of age. NT has never been reliant on the Applicant for support.
NT lives with his parents. He has been a victim of the Applicant’s family violence and intimidation. He has obviously suffered serious physical and emotional trauma at the hands of the Applicant. The Community Corrections Report of 25 May 2021 makes it clear that the Applicant’s family (probably in this instance, his parents) do not want him to live with them and they have fears for the safety of their children, including NT, if the Applicant was to reside with them. If the Applicant were to reoffend the consequences for NT could easily be devastating. No evidence was given by either NT or the Applicant’s parents. That said, Child A would likely have an emotional attachment to the Applicant and be distressed to some degree if he were removed from the country. The Applicant has not spoken to him since he went to prison because he has been “trying to be careful”. I remain unclear on what exactly the Applicant meant by this given that there are no current orders on foot.
Conclusion: Primary Consideration 3
Viewed at is most positive from the Applicant’s perspective, this Primary Consideration 3 modestly favours revocation. It could equally be a significant negative, were he to reoffend. The Applicant could maintain contact with Child A electronically if he were removed to New Zealand. On balance, I regard this Primary Consideration 3 as neutral.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[24]
[24] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
The Applicant’s criminal record as set out above, in particular:
(a)Acts of family violence as set out above;
(b)Crimes against children as set out above.
Conclusion: Primary Consideration 4
This Primary Consideration 4 weighs heavily against revocation.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence.
This Other Consideration (a) is not relevant and is therefore neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant has no particular physical health issues. He is still a young man. His mental health is an issue, but as a citizen of New Zealand he would be able to access mental health services in that country, comparable to those available in Australia.
There are no significant language or cultural issues.
The Applicant has no friends or family in New Zealand. The Applicant would certainly have difficulty readjusting to life in New Zealand. Given sufficient time, however, there is no reason to believe that his prospects there would be significantly worse than in Australia. Even if he were to remain in Australia, he would have to manage himself given that his family don’t want him to live with them. New Zealand has health, education and social services very comparable to those available in Australia. The Applicant would suffer no significant disadvantage in that regard.

This Other Consideration (b) weighs slightly in favour of revocation.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Two of the Applicant’s brothers, HT and KT were called to give evidence. They continue to live with their parents in the family home. Both expressed support and concern for their brother. Both agreed that they were fearful of the Applicant at the time when they were assaulted. Only KT has really maintained contact with the Applicant to a significant degree. KT gave an account of the Applicant’s conduct of 19 January 2018 that largely corroborated the Applicant’s account. He denied that the Applicant swung a knife at him. Both witnesses said that they thought that their brother had changed, but they could not explain how or why. Both said that they had no fear of the Applicant now.
This consideration is very complex because of the family relationship between the Applicant and his victims. There is no evidence of an adverse impact on victims, though if the Applicant were to reoffend, there certainly would be. It is very difficult to expect his victims to voice their fears, should they hold them. Nevertheless, the only evidence before the Tribunal is that they hold no fear of the Applicant and would welcome his release into the community.
Given the evidence, this Other Consideration (c) is neutral
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has a great many members of his immediate and extended family who are either Australian citizens or have a right to remain in Australia. There is limited evidence of their views regarding the impact of him being removed from Australia. The Applicant said little about his connections, other than his immediate family. As noted above, the elder two of his brothers gave evidence in support of him. His parents did not. He indicated something to the effect that he did not want to involve them in the matter before the Tribunal. He has no friends or relatives in New Zealand.
The Applicant has been in Australia for 15 years, slightly over half his life. There is no evidence to suggest that he has made any particular contribution, for example by having a solid history of employment, though he has certainly worked from time to time. Like many other aspects of his evidence, his recounting of his work history was unclear. He has had a destructive impact on the community with his youth offending and on his own family.
The Applicant has a great many relatives, both close and extended in this country. He has other friends here too. None were called. There is no evidence to suggest that he plays a critical or supporting role to any of them. Indeed, given his offending, he has done serious harm to those closest to him. That said, there would naturally be an emotional impact on some of these people if he were to be returned to New Zealand.
This Other Consideration (d) paragraph 9.4.1 of the Direction weighs slightly in favour of revocation.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Overall, this Other Consideration (d) weighs slightly in favour of revocation.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral;
(b)extent of impediments if removed: weighs slightly in favour of revocation;
(c)impact on victims: neutral; and
(d)links to the Australian community including the strength, nature, and duration of ties to Australia; weighs slightly in favour of revocation. And the impact on Australian business interests; neutral.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
Primary Consideration 1 weighs very heavily against revocation.
Primary Consideration 2 weighs very heavily against revocation.
Primary Consideration 3 is neutral.
Primary Consideration 4 weighs heavily against revocation.
Having regard to all of the above, the application of Direction 90 favours the Tribunal not exercising the discretion to revoke the visa cancellation.
Consequently, I do not exercise the power conferred by section 501CA(4) of the Act to revoke the visa cancellation.
DECISION
The decision under review is affirmed.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

..............................[Sgnd].................................
Legal Administrative Assistant

Dated: 16 September 2021

Date of hearing: 7, 14 & 15 September 2021

Applicant:

Self-represented

Solicitor for the Respondent
Claire Campbell

HWL Ebsworth Lawyers

Annexure A – Exhibit List

Exhibit no.	Lodged By	Document
1	Respondent	Statement of Facts, Issues and Contentions
2	Respondent	G-Documents
3	Respondent	Supplementary G-Docs
4	Applicant	Letter of Support – HT (Applicant’s sibling)
5	Applicant	Letter – Applicant

Annexure B – Applicant’s Offending History

Court	Court Date	Offence	Court Result
Campbelltown Childrens Court	07/03/2011	Break & Enter house etc destroy etc property >$60,000	Probation – 2 years supervision juvenile justice to be of good behaviour Compensation: $2,200
Campbelltown Local Court	07/08/2018	Assault occasioning actual bodily harm	Imprisonment – 11 months Suspended upon entering bond
		Fail to appear in accordance with bail acknowledgement	Fine – $500
		Common assault (DV)	Imprisonment – 7 months Suspended upon entering bond
		Armed w/i commit indictable offence	Imprisonment – 11 months Suspended upon entering bond
Campbelltown Local Court	09/10/2018	Assault occasioning actual bodily harm (DV)	Imprisonment – 9 months / Non-parole period 3 months
		Contravene prohibition/restriction in AVO (Domestic)	Imprisonment – 3 months
		Assault occasioning actual bodily harm (DV)	Imprisonment – 11 months / Non-parole period 6 months
		Common assault (DV)	Imprisonment – 7 months / Non-parole period 3 months
		Armed w/i commit indictable offence	Imprisonment – 11 months / Non-parole period 6 months
Campbelltown District Court	06/12/2018	Assault occasioning actual bodily harm (DV)	Order Confirmed: Imprisonment – 9 months / Non-parole period 3 months
		Contravene prohibition/restriction in AVO (Domestic)	Order Confirmed: Imprisonment – 3 months
		Common assault (DV)	Order Confirmed: Imprisonment – 7 months / Non-parole period 3 months
		Assault occasioning actual bodily harm (DV)	Order Confirmed: Imprisonment – 11 months / Non-parole period 6 months
		Armed w/i commit indictable offence	Order Confirmed: Imprisonment – 11 months / Non-parole period 6 months
Campbelltown Local Court	21/07/2020	Stalk/intimidate intend fear physical etc harm (domestic)	Imprisonment (aggregate) – 20 months / Non-parole period 12 months
		Contravene prohibition/restriction in AVO (Domestic)
		Contravene prohibition/restriction in AVO (Domestic)
		Contravene prohibition/restriction in AVO (Domestic)
		Contravene prohibition/restriction in AVO (Domestic)
		Common assault (DV)
		Common assault (DV)
		Assault occasioning actual bodily harm (DV)

[2021] AATA 3380

16 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Remedies

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/4470
GENERAL DIVISION	)